Law and Art

In engaging with the full range of ‘the arts’, contributors to this volume consider
the relationship between law, justice, the ethical and the aesthetic. Art continually
informs the ethics of a legal theory concerned to address how theoretical abstrac-
tions and concrete oppressions overlook singularity and spontaneity. Indeed, the
exercise of the legal role and the scholarly understanding of legal texts were clas-
sically defined as ars iuris – an art of law – which drew on the panoply of humanist
disciplines, from philology to fine art. That tradition has fallen by the wayside,
particularly in the wake of modernism. But approaching art in that way risks dis-
torting the very inexpressibility to which art is attentive and responsive, whilst
remaining a custodian of its mystery. The novelty and ambition of this book, then,
is to elicit, in very different ways, styles and orientations, the importance of the
relationship between law and art. What can law and art bring to one another, and
what can their relationship tell us about how truth relates to power? The insights
presented in this collection disturb and supplement conventional accounts of justice;
inaugurating new possibilities for addressing the origin of violence in our world.
Oren Ben-Dor is a Reader in the Philosophy of Law at the University of
Southampton, UK. His writings explore the relationship between ontology and
ethics and the implication this relationship has to the happening of critical legal and
political thinking. He is the author of Constitutional Limits and the Public Sphere (Hart
Publishing 2000) and Thinking about Law: In Silence with Heidegger (Hart Publishing
2007).
Law and Art

Justice, Ethics and Aesthetics

Edited by
Oren Ben-Dor
First published 2011
by Routledge
2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN
Simultaneously published in the USA and Canada
by Routledge
711 Third Avenue, New York, NY 10017

A GlassHouse Book
Routledge is an imprint of the Taylor & Francis Group, an informa business
© 2011 editorial matter and selection: Oren Ben-Dor
The right of Oren Ben-Dor to be identified as editor of this work has
been asserted in accordance with sections 77 and 78 of the Copyright,
Designs and Patents Act 1988.
All rights reserved. No part of this book may be reprinted or reproduced
or utilised in any form or by any electronic, mechanical, or other means,
now known or hereafter invented, including photocopying and recording,
or in any information storage or retrieval system, without permission in
writing from the publishers.
Trademark notice: Product or corporate names may be trademarks or
registered trademarks and are used only for identification and
explanation without intent to infringe.
British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloguing in Publication Data
Law and art: justice, ethics and aesthetics / edited by Oren Ben-Dor.
p. cm.
“A GlassHouse Book.”
Includes bibliographical references.
1. Law and aesthetics. 2. Law and ethics. I. Ben-Dor, Oren.
K487.A3L394 2011
340'.112–dc22 2010047966

ISBN: 978-0-415-56021-4 (hbk)

ISBN: 978-0-203-81610-3 (ebk)

Typeset in Baskerville
by Glyph International, Bangalore, India
For Keren
Contents

Acknowledgements x
List of contributors xii

Introduction: standing before the gates of the law? 1

O R E N BE N - D O R

PART I
Philosophical reflections: law between ethics and aesthetics 31

1 Poietic ‘justice’ 33
K R Z Y S Z T O F Z IAREK

2 Repetition Or the awnings of justice 45

AN D R E A S P HI LIPPO PO U LO S-MIHALO PO U LO S

3 Judaism in the no man's land between law and ethics 59

AR I E L L A A T Z MO N

4 Seizing truths: art, politics, law 73

I GO R S T R AM I GNO NI

5 Like the osprey to the fish: Shakespeare and

the force of law 93
R I C HAR D W I L SO N

6 Agonic is not yet demonic? At the be-ginning

there will have be-come a de-cision 114
O R E N BE N - D O R
viii Contents

7 Nella Larsen’s feminist aesthetics: on curse, law,

and laughter 135
E W A P L O N O W SKA Z IAREK

8 I wish you well: notes towards an aesthetics of welfare 149

AD A M GE AREY

PART II
When law meets art: creativity, singularity
and performance 163

9 The torch of art and the sword of law: between

particularity and universality 165
Z E N O N BAN´ KO W SKI AND MAKSYMILIAN D EL M A R

10 The play of terror 177

I AN W A R D

11 The poetic ocean in Mare Liberum 188

S T E P H AN I E JO NES

12 Reading law and literature: three cases

for conversation 204
R O B I N L I S TER

13 Copyright activism as art: aesthetics,

ideology and ethics 217
J AI M E S T APLET O N

14 Musical performance, natural law and interpretation 231

T H O M AS I R VINE

PART III
Law, justice and the image 245

15 A legal phenomenology of images 247

C O S T AS D O U Z INAS
 Contents ix

16 Flores quae faciunt coronam or the flowers

of common law 259
P E T E R GO O D R IC H

17 Law, ethics, and the imagery of suffering 273

P A N U M I N K K I NEN

18 Governor Arthur’s Proclamation: images of

the rule of law 288
D E S M O N D M AND ERSO N

Epilogue 305
K E N D E L L GE E RS, BY AN Y M EAN S N E C E S S ARY , 1995

Index 307
Acknowledgements

I would like to thank all contributors to this volume for their commitment and
patience throughout the editing and publication process. It has been a privilege to
work with you all. I am grateful to Routledge’s commissioning editor Colin Perrin
for his continuing advice and adaptation. Thanks to Melanie Fortmann-Brown
and Rhona Carroll of Routledge who diligently saw the project to completion.
I am also grateful for the two referees who commented on the book proposal.
Most contributors presented a very short version of their chapter in a Symposium
on Law and Art which took place in Tate Modern, London, on the 23rd of March
2010. My gratitude extends to Tate Modern’s Marko Daniel for his friendly
enthusiasm and energy and in superbly facilitating the symposium both on the
web and on the day. Thanks to Sandra Sykorova of Tate Modern for communi-
cating with all participants nearer to the event. David Armstrong of Routledge
Marketing secured some financial assistance towards the Symposium. Peter
Goodrich, Panu Minkkinen, Andreas Philippopoulos-Mihalopoulos, Costas
Douzinas and Igor Stramignoni offered continuing encouragement and advice in
different ways and stages. I owe a great source of my inspiration to Ariella Atzmon
who always thinks the unthinkable ahead of the game. To be blessed with Ariella’s
friendship continues to be the greatest of gifts. I deeply treasure the personal and
intellectual companionship of Jacques de Ville of the University of the Western
Cape, Cape Town. My discussions with Alun Gibbs, Tom Frost, and Tom Irvine
always rejuvenates with inspiration and insights. A meeting organised by Andrew
Patrizio of Edinburgh College of Art and Emilios Christodoulidis of Glasgow Law
School in which fascinating presentations were given on the inexpressibility of pain
that proved invaluable for my thoughts about this volume. I would like to thank
The Faculty of Law at the University of Cape Town which hosted me between
January and July 2010. I am particularly indebted to the hospitality and friendship
of Danwood Chirwa, Tjakie Naude, Pierre de Vos, Elizabeth de Stadler, Muhamed
Paleker, and Mandi Bedin, who made my stay at the University of Cape Town a
particular delight. Jacques de Ville, Carol Clarkson, Louis Blond, Jaco Barnard-
Naude, Julian Jonker, and Henk Botha came together for a lively reading group in
Cape Town, the discussions of which greatly inspired, challenged and enriched my
introduction. Thanks are due to my School of Law at Southampton for providing
 Acknowledgements xi

me with the opportunity to spend time in Cape Town. The Tasmanian Archive
and Heritage Office gave permission to reproduce ‘Governor Davies Proclamation
for the Aboriginies 1816’. Kendell Geers gave permission to reproduce Kannibale
(Marcel Duchamp) for the cover and for allowing ‘by Any Means Necessary’ to
become an epilogue to the volume.
Keren, Amos, Neriya and Noam, I love you so much, without your shining
light none of this would have come to fruition.

Oren Ben-Dor
Southampton 2011.
Contributors

Ariella Atzmon (PhD) is an Israeli-born senior lecturer in the School of

Education and the School of Law at the Hebrew University of Jerusalem
(retired 2002). Graduate in Chemistry, postgraduate in Philosophy of Science
and Political Science. Fields of research: rhetorical styles shaped by false images
of science that prevail in liberal democracies and their interference with public
opinion in the context of decision making. Topics of interest: hermeneutic and
its impact on the validation of statements in the court and the public sphere,
and jurisprudence referring to the intricate nature of Jewish thought. Author of
Multiple Amnesia: a poststructuralist gaze (2000) [Hebrew].
Zenon Bańkowski is of Polish descent. He was born in 1946 in Germany.
Brought up in England, he studied in Scotland at the Universities in Dundee
and Glasgow. He is currently Professor of Legal Theory at the Law School of
Edinburgh University. His book Living Lawfully looks at the relations between
Law and Love and the ethical life of Legal Institutions. He is currently looking
at the place of the visual and movement arts in relation to Law and Legal
Education. He has taken part in dance workshops, was a competitive athlete
(a past winner of the Edinburgh 7 Hills race), and is a volunteer neighbourhood
mediator.
Oren Ben-Dor grew up in Israel. He is a Reader in the Philosophy of Law at
the School of Law, University of Southampton. He is the author of Constitutional
Limits: the Public Sphere (2000), and Thinking About Law: In Silence with Heidegger
(2007), both of which are published by Hart Publishing, Oxford. He is currently
working on a book that explores the Jewish origin of Zionism as well as on a
critique of Post-Heideggerian Philosophy.
Maksymilian Del Mar completed his PhD in legal theory at the School of
Law, University of Edinburgh, in 2009. While in Edinburgh, he was a member
of the AHRC Beyond Text in Legal Education project. He is currently a Swiss
National Science Foundation Researcher at the Institute of the Social Sciences,
University of Lausanne.
 Contributors xiii

Costas Douzinas is Professor of Law, Director of the Birkbeck Institute for the
Humanities and Pro-Vice Chancellor at Birkbeck College, University of
London. Educated in Athens, London and Strasbourg, Costas has taught at the
Universities of Middlesex, Lancaster, Prague, Athens, Griffith and Nanjing.
Costas is a founding member of the Critical Legal Conference; founding
member of the Birkbeck Law School and the Birkbeck Institute for the
Humanities; managing editor of Law and Critique: The International Journal of
Critical Legal Thought; managing director of the publishing house Birkbeck Law
Press. He has written extensively in legal and political philosophy, human rights,
aesthetics and critical theory. His books include Postmodern Jurisprudence; Justice
Miscarried; Law and Psychoanalysis; The End of Human Rights; Law and the Image;
Critical Jurisprudence; Nomos and Aesthetics; Human Rights and Empire; Adieu Derrida.
His Left and Rights and the collections The Idea of Communism and New Critical Legal
Studies will appear in 2010. His books have been translated in ten languages.
Adam Gearey is a Reader in Law at Birkbeck College, University of London.
His books include Law and Aesthetics (2001) and (together with Costas Douzinas)
Critical Jurisprudence: The Legal Philosophy of Justice (2005), both published with
Hart Publishing, Oxford. He is presently working on a manuscript, entitled
‘Welfare as Justice’ to be published by Continuum in 2011.
Kendell Geers’ work is strongly influenced by the social and political condi-
tions which could (and still can) be found in South Africa, namely apartheid.
Therefore, he continously uses a wide variety of different materials deriving
from the political, and he often utilizes a violent mode of expression to articu-
late his artistic points to view. His art is characterized by a multiplicity of media
used (objects, installations, videos, performances), but in a very coherent way.
Geers calls himself a “terrorist” in the field of art, i.e. through his art he wants
to take a firm stand. He explores and criticizes our world in a very confronta-
tional manner by turning his gaze to the phenomenon of alienation which he
discovers in many objects, images and situations of the everyday. However, this
critical positioning does not end up in a one-sided approach. On the contrary,
it constantly questions the conditions of good and evil and the interdependence
of these principles which underlie all things. By also addressing himself to moral
and political issues as an artist, Geers reflects on the way exhibitions works, on
the conditions of art in general and on artistic institutions as well as their pro-
tagonists in particular. Finally, through his art Geers enters life in a very com-
prehensive way and negotiates its bright and dark sides and its “dangerous
beauty” which he searches in his personal experiences and which he always
places before his art.
Peter Goodrich is umbrageously domiciled in Manhattan. His current work is
on law and the visual. He has published recently on legal enigmas, juristic
emblems and visual advocacy. His last book was The Laws of Love: A Brief Historical
xiv Contributors

and Practical Manual (2007) and he recently co-edited and co-authored the film
Auf Wiedersehen: ‘Till we Meet Again (2010 Icy House Productions).
Thomas Irvine is Lecturer in Music at the University of Southampton and
Deputy Director of the Southampton Centre for Eighteenth-Century Studies.
He has published articles in English and German on W.A. Mozart’s concept of
musical performance, Leopold Mozart and the history of Mozart studies. His
interest in music historiography, German culture and aesthetics extends to the
twentieth century as well: he is currently at work on a book manuscript that
examines the impact of the musical avant-garde in the Weimar Republic –
particularly those associated with the Youth Music Movement – on composers
in 1920s and 1930s Britain. Before taking a PhD in musicology at Cornell
University, he was an active professional violist on ‘modern’ and ‘historical’
instruments.
Stephanie Jones has a BA (hons) and LLB from the Australian National
University, and a PhD from Cambridge. She has worked at Cambridge, SOAS
and the Open University. She is lecturer in 20th-Century Literature in English
at the School of Humanities, University of Southampton, UK. She works
on literary and legal narratives of the Indian Ocean, and more broadly in the
interdisciplinary field of law and literature. She has worked on East African
literatures, literatures of the South Asian diaspora, and postcolonial theory.
Robin Lister is a Senior Lecturer in Law at the University of Bradford, where
he teaches Law and Literature, Legal Theory and Property Law. His recent
publications include an exploration of the shifting relationship between prop-
erty and identity in the eighteenth- and nineteenth-century English novel. He is
currently working on the relationship of common law and cricket as institutions,
discourses and cultural practices in the construction of particular meanings and
myths of Englishness and Englishmanliness.
Desmond Manderson holds the Canada Research Chair (Tier 1) in Law and
Discourse at the Faculty of Law, McGill University, and is Foundation Director
of the Institute for the Public Life of Arts and Ideas, which promotes innovative
interdisciplinary research and teaching right across the humanities. His inter-
disciplinary work has led to essays and lectures around the world in the fields
of literature, philosophy, ethics, history, cultural studies, music, art, and anthro-
pology, as well as in law and legal theory, and his books include From Mr Sin to
Mr Big (1993); Songs Without Music: Aesthetic dimensions of law and justice (2000); and
Proximity, Levinas, and the Soul of Law (2006).
Panu Minkkinen is Professor of Legal Theory at the University of Leicester,
UK, and Adjunct Professor of Legal Theory at the University of Helsinki,
Finland. He is former Director of the Helsinki Collegium for Advanced Studies
(2001–2004) and Director of the Finnish Institute in London (1999–2001). His
current research interests focus on the critique of the Kantian and neo-Kantian
 Contributors xv

traditions in the philosophy of law, the constitutional theory of Carl Schmitt,

and the political vocation of the legal academic. In addition to numerous journal
articles in the areas of legal theory and law and the humanities, his major pub-
lications include the monographs Thinking Without Desire: A First Philosophy of Law
(Oxford: Hart, 1999) and Sovereignty, Knowledge, Law (Abingdon/New York, NY:
Routledge, 2009).
Andreas Philippopoulos-Mihalopoulos is Professor of Law & Theory,
University of Westminster and Co-Director of The Westminster International
Law & Theory Centre. His research interests include law and space, critical
autopoiesis, continental philosophy, environmental law, law and literature,
gender studies, law and art. His edited volume Law and the City (2007) and his
monographs Absent Environments (2007) and Niklas Luhmann: Law, Justice, Society
(2009) are published by Routledge.
Jaime Stapleton (PhD) is an Associate Research Fellow of the School of Law,
Birkbeck, University of London. He speaks regularly in the UK and Europe on
issues relating to creative practice, law and political economy. He has worked as
a consultant to the World Intellectual Property Organization on impact assess-
ment methodology and for the Royal Society of Arts on intellectual property
reform. He has also worked for the Arts Council England and a number of
British universities. He was on the Editorial Board of the AHRC ‘Primary
Sources in Copyright (1450–1900)’ project and a core participant in the AHRC
‘Intermedia: New Media Art’ network based at Tate Modern.
Igor Stramignoni teaches legal theory at the London School of Economics
and Political Science, where he has been a tenured member of the Law
Department since 2003. He is the author of numerous essays in several different
languages that identify neglected questions in the history of knowledge concern-
ing, for example, the critical function of equity in legal adjudication, the role
played by language and difference in the comparison of multiple legal cultures,
and the co-possibility of different forms of space in the juridical. He was recently
a Visiting Professor at the University of Paris I Panthéon-Sorbonne where he
delivered a series of lectures on the subject of ‘The Gaze of Comparison’.
Ian Ward is currently Professor of Law at Newcastle University. His research
interests are concentrated in associated areas of law, literature and history. He
has published a number of books and articles in these areas, most notably Law
and Literature: Possibilities and Perspectives (Cambridge UP, 1995), Shakespeare and the
Legal Imagination (Butterworths, 1999) and Law, Text, Terror (Cambridge UP, 2009).
He is currently working on various aspects of legal narrative in the mid-nineteenth
century novel, and will be publishing a book entitled Law and the Brontes, with
Palgrave Macmillan in 2011.
Richard Wilson is Professor of English Literature at Cardiff University and
the author or editor of numerous books on Shakespeare and theory, including
xvi Contributors

Will Power: Studies in Shakespearean authority (1993), Secret Shakespeare: Essays on

theatre, religion and resistance (2004), and Shakespeare in French Theory: King of Shadows
(2007). Previously Director of the Shakespeare Programme at Lancaster
University, and well known for research on Shakespeare’s response to Catholic
terrorism, he has been a Visiting Fellow of the Shakespeare Institute, University
of Birmingham, and a Visiting Professor of the University of Paris III. He gave
the 2001 British Academy Shakespeare Lecture – ‘A World Elsewhere’ – on the
theme of exile in the plays, and was the 2006 Fellow at Shakespeare’s Globe,
where his Fellowship Lecture – ‘Fools of Time’ – was on Shakespeare and the
suicide-bombers. He is currently completing a study of Shakespeare and the
aesthetic: Free Will: Studies in Shakespearean autonomy.
Ewa Plonowska Ziarek is Julian Park Professor of Comparative Literature
and the Founding Director of Humanities Institute at the State University of
New York at Buffalo. She is the author of The Rhetoric of Failure: Deconstruction of
Skepticism, Reinvention of Modernism (SUNY 1995), An Ethics of Dissensus: Feminism,
Postmodernity, and the Politics of Radical Democracy (Stanford 2001); the editor of
Gombrowicz's Grimaces: Modernism, Gender, Nationality (SUNY 1998); and the
co-editor of Revolt, Affect, Collectivity: The Unstable Boundaries of Kristeva's Polis
(SUNY 2005); Time for the Humanities: Praxis and the Limits of Autonomy (Fordham
UP 2008); and Intermedialities: Philosophy, Art, Politics (Rowman & Littlefield 2010).
Currently she is working on a book on feminist aesthetics entitled Feminist
Aesthetics: Literature, Gender, and Race in Modernity.
Krzysztof Ziarek is Professor of Comparative Literature at the State University
of New York at Buffalo. He is the author of Inflected Language: Toward a Hermeneutics
of Nearness (SUNY), The Historicity of Experience: Modernity, the Avant-Garde, and the
Event (Northwestern), and The Force of Art (Stanford). He has also published
numerous essays on Clark Coolidge, Susan Howe, Myung Mi Kim, Stein,
Stevens, Heidegger, Benjamin, Irigaray, and Levinas, and co-edited two collec-
tions of essays, Future Crossings: Literature Between Philosophy and Cultural Studies
(Northwestern) and Adorno and Heidegger: Philosophical Questions (Stanford). He is the
author of two books of poetry in Polish, Zaimejlowane z Polski and Sa˛ d dostateczny.
Introduction
Standing before the gates of the law?
Oren Ben-Dor

I
Why should lawyers and artists be interested in the relationship between law
and art? Works of art involve hermeneutic creativity as constraint by judgement.
So is the activity of judges and lawyers. In law, texts are constantly created,
re-encountered and interpreted. New legal arguments are the result of approach-
ing legal texts in an ever surprising way, thereby marking moments of ‘beginnings’
of unexpected evolution of case-law. The very ambit of critical legal interpretation
is at stake in the constant creativity that traverses ethical judgement which gives
political voice to ever changing multiplicity of othernesses and differences which
are for the most part silenced in conventional interpretation of past texts. A similar
ethical moment challenges artists too. The moment during which the due of
justice is understandingly brought into language, indeed challenging the very
use of language, involves what Kant calls in his Critique of Judgement – a reflective
judgement – a judgement of particular encounters which is made without sub-
sumption of particularity under a general rule – a moment of genuine thinking that
links justice and beauty. The happening of the just, ethical and aesthetic character-
ises law and art and the enriching asymmetry of their encounter. Aesthetic happen-
ing ethically destabilises the subject who creates/encounters the legal text or the
work of art.
And yet, the response from both lawyers and artists to this topic combines
interest with suspicion or even outright dismissal. There seems to be grasping that
something important and unique happens when thinking with and through law
encounters a work of art – something which points to a telling strife between the
two, one that can generate in-sights that are transparent and audible and indeed
useful for ethical, political and legal reflection but which, at the same time, can
easily develop into a distortion of a primordial secret, a mystery that perhaps
pertains to the actuality and beginning of both.
Contributions in this volume are about art and law – about the riddle of aisthesis
as the imperative strange and beautiful beginning of perception as sensuous
apprehension – perceivedness – and its relationship to the beginning of law and
the normative thinking it harbours. They are about the ethical, political and legal
2 Law and art: justice, ethics and aesthetics

implications of those points where the sublime beauty of strangeness begins, as well
as about the question of whether the law should protect mortals from the violence
that might well come with that which this strangeness indicates at. However,
contributions are also about how art relates to the need for the decisiveness of
law, the aisthesis of such towards-a-decision, decisiveness that might indeed exist
despite art, perhaps even as an ethical response to art. Contributions are about
the points of overlap, differences, as well as the functional complementarities,
between the truth that art protects and the truth that law protects. Art does
protect something essential in humans and in their togetherness as a political
community. That protection is, of course, transparent to legal and ethical judge-
ment, but is far from clear how. The more this theme of protection casts light on
the relationship between law and art, a corresponding riddle emerges and with it
the question of the price to be paid by making good sense of some common theme
of protection.
Nothing less is at stake in the relationship between law and art than what it is to
be a mortal – what it is for mortals to be together in the mysterious beauty of justice
and ethics. How does beauty and justice relate to law – arguably the most important
of social institutions; one that constitutes the essence of moderate political com-
munity and through which such community aspires for constant re-evaluation
and change? Dwelling on these relations, the book also constitutes a platform that
canvasses the various conceptions of, and complementarities between, truth and
power. Depending on these conceptions the book opens up questions about what
does it mean to hold truth to power and, indeed, to hold power to truth.
Law was classically understood as ars iuris, an art of law, legal aesthetics which
used the panoply of humanist disciplines, from philology to fine art, in the exercise
of the legal role and the scholarly understanding of its texts. That understanding
which points to an essential aesthetic aspect of law has somewhat fallen by the
wayside over time although has never been diminished, not even in the wake of
modernism, with its increased specialisation of legal expertise and the entrench-
ment of the objectifying representations of a legal subject in legal rights and duties.
Indeed, modernism itself has been shown to recast this aesthetic aspect of law
within itself.1 However, law and art are still captured by many as antagonistic, at best
existing in a tense and uneasy, highly suspicious, relationship with each-‘other’.
Even, perhaps especially, at their seemingly possible discrete dynamic existences,
the very suspicion between law and art indicates that each has always somehow
desired the other – a feature which again indicates at an essential connectedness
between the two. Post-Modernist and structuralist/post-structuralist meditations
as well as open-Marxist critical frameworks of analysis2 show that any separation
between law and art is essentially impossible and thus, as illusion, constitutes a
depoliticised form of social relations which cloaks behind objectivism for the sake
of protecting existing structures of power.
Law and art serve both as instruments of oppression and as means for
emancipation. This insight yields the active realisation (and in turn possibility for
action) that not only is art transparent to legal reflection and growth, but that law
 Introduction 3

is essentially an aesthetic activity. Critical legal thinking constantly encounters

works of art and generates possibilities for action (praxis) opening new paths for
practical wisdom (phrone-sis) that keeps the political community alive through both
refusing uncritically accepted and oppressive conventions that justified ethical,
political and legal decisions but also bringing constant explorations, contestations
and negotiations of new expressions of togetherness. When philosophical truths
become abstractions only to conceal them being a means to surrogate particular
power relations, thus stifling the active life of the political community, engagement
with art mercilessly mirrors that fact and is able to alter the dormant and domes-
ticated collective [un]consciousness. The relationship between praxis and received
‘theory’ is thus constantly destabilised instrumentally, conceptually and symboli-
cally through such engagement.3
Critical legal thinking engages with how law already contains aesthetic sens-
ibility that symbolically constitutes the unconscious of the [legal] subject, but
which also oppresses singular encounters and possibilities (also ‘allowing’ the
encounter with too narrow a range of possibilities) of genuine alterity and in turn, of
resistance. Through engaging with works of art post-structuralism brought forth
the possibilities for law to constantly encounter the exposure, and then the critique
of, the symbolic order. In turn, the background justification, of which the relation-
ality and priority between legal rules and principles are the conclusion, could
re-politicise as a work of art.
Post-structuralist critical legal thinking exposes the contestability of identity in
the face of any identification. Appreciating the critical aesthetic aspect of law has
considerably drawn on psychoanalysis and the unconscious forces which obey
the law of desire of which legal subjectivity is but an essential aspect. Lacanian
psychoanalysis has radicalised this insight further by pointing towards an under-
lying essential lack which generates a schism within subjectivity within the aesthetics
of which the law and its normativity plays a key role.
Explorations of the multi-layered happening of the aesthetics within which,
and as which subjectivity is constituted, constantly reveals the manner structures
of power operate. This happens very intensely in the culture of control yielded by
modernity. As Carl Schmitt, Michel Foucault and Giorgio Agamben have taught
us, these structures persist within constant complicity and blurry boundaries
between, on the one hand, sovereign exercise of power which is rationalised after
the fact of its exercise, rationalisation that takes place through the justified re-
presentation of rights and, on the other hand, subjugation of the body and soul –
life – to normalising, knowledge-producing scientism, disciplinary, and bio-,
power that controls the politicisation of life itself through the very happening of
governmentality.4 The debates around the nature of this complicity and bounda-
ries have led to contemplation about whether and how constitutionalism can
respond to the mysterious antecedent arbitrariness of dominating power that its
legitimacy always already belatedly conceals and rationalises. Such critical explo-
rations help to articulate the condition for the legal and the political subject in a
manner that can lead to the possibility of resistance to domination in a way that
4 Law and art: justice, ethics and aesthetics

both distances itself from legalism and the tranquilising reasonableness of risk
assessment, but which is still transparent to law’s aesthetic sensibilities. Art can
expose the essential singularity and inassimilable nature of pain and suffering –
that singularity that is for the most part silenced by legal representations and bio-
power, singularity which is audible only as already subsumed under the
all-too-general categories of law which are in fact too concrete and distorting
instantiations of those abstract values that are said to underpin law.5
The result of all these explorations is that aesthetics, in particular the patient
encounters with works of art oppress Jurisprudence, and law, to reconnect to the
messiness of life, to the constant de- and re-politicisation of conflict- and alterity-
ridden actuality. The ‘otherness’ between law and art could not be seen any more
as crude and vulgar separation but rather be constantly displaced so as to mirror
the poetic essence of the togetherness of humans as always being deconstructed
and displaced within the law itself.6
This renewed appreciation of the essential link between law and art – of the
anesthetisation of law – was a part of a major destabilisation of the very notion of
‘truth’ and whether a certain truth in art had a role in such destabilisation – in short
whether the very gesture of philosophy has collapsed into art. The notion of truth
has been considerably debated and at the very least inflected by post-structuralism
and more deeply, by the kind of fundamental ontology and radical ethics that it
stems from. Many contributions in the book magnify into that happening of truth-
about-‘truth’ of art and, in turn, how the truth of art and of law relate to such
truthfulness of truth-about-‘truth’.
This magnification can take different forms that may well critique the very
aesthetic of law, or legal aesthetics. For example, could not the truthfulness of art
critiques ‘aesthetics’ itself, and, crucially, do not aesthetic, ethical, political and
legal judg[e]ments have some role in such questioning?7 In other words, is not the
relationship between law and art capable of interrogating and critiquing the very
notion of art upon which legal aesthetics depends? In the process of examining
and illustrating the troubled relationship between power of truth and truth of
power, art itself is subjected to an interrogation thus exploring a potential, and
extent of, schism that characterises the very force of art and which assesses the
political implications of a mystery that characterises the very truthful happening
of art and how mortals, their understanding and togetherness hang there over the
abyss of this mystery.
The force of art seems to be capable of disturbing the normativity that pertains
to the aesthetic aspect of legal subjectivity. Despite art being capable of generating
an ‘ought’, this ‘ought’ might be derived from prior listening to the unfolding
of certain mysteries of the ‘is’ and does not seem to be ‘normative’, indeed may
be valuable precisely because of not comporting to any ‘ought to do something
about . . .’. There is something problematic, deeply so, in the very origin of
normativity – its very beginning for humans. Thus, the very origin of normative
thinking, as well as any crave to critically and ethically enrich normative thinking
is at stake in the very puzzle before which we are standing.
 Introduction 5

But further, would it not be for art to question not merely any notion of itself
that readily lends usefulness that manifests as ‘legal aesthetics’ but the very collapse
of philosophy into art upon which both such questioning and the very interpret-
ation of ‘legal aesthetic’ which is being questioned still depend? Could art question
its own subsumption of philosophy without the latter returning to any totalising
gesture of truth? What would be the role of justice, ethics, politics and law in enabling; even
guarding the aesthetic moment that generates the possibility of such questionings?
These various dislocations and twists are enough to generate wonder and to
appreciate that mysterious creativity is the hallmark of art and of law, one which
characterises the singular encounter with truth and power in both the work of art
and in legal texts. How to conceive the beginning of law, justice, ethics and politics
and how mortals begin at such beginning are quandaries that eludes thinking,
forcing it to encounter the emptiness of its own origin. The appreciation of this
emptiness means that it is not clear what is the stake for creativity in law and in art
and whether or not these stakes are one.
The thread that runs through the book, then, is that despite the creativity that
involves both ethical and aesthetic judgement in both art and law, creativity that
shows that they already exist in close connection, their relationship is nevertheless
irreducibly puzzling and highly troubled. No doubt that juristic notions of values,
rights the good and finally, the ‘due’ of justice, notions which can be traced to
responsibility to being-in-life, are indeed transparent to art. How to give account
of this transparency though? The point of departure for this volume from current
books about legal aesthetics maintains that irreducible lump in the throat. Is there
not something in art, tamed by the very crave to make ‘sense’ that still lurks in
legal aesthetics that connects law, ethics and justice? Is there not an uncanny
refusal by art to be tamed in this critical, still useful, way, making it valuable precisely
because of that refusal?
All contributions to this book, then, in very different ways, endure the question-
worthiness of the relationship between law and art. It is hoped that the interrela-
tionship between contributions would open up many possibilities for connecting
these different manners of enduring question-worthiness. What is, or should I
say how is, or, perhaps even why is that which makes the relationship between
law and art question-worthy? What is at stake in investigating the relationship? At
the same time, though, is not the very craving to give account of the question-
worthiness of this relationship question-worthy in a way which is very relevant for
the gesture of the volume? Is not the very thinking that is comported to ‘give
account of things’, or ‘to offer an explanatory power of . . .’ at stake in meditating
upon the ethical and political dimension of the encounter between truth and
power, between the decision and creativity that is embodied in both law and art?
Does not thinking itself as the unmediated engagement with happening have to
undergo a transformation in reflecting on the question-worthiness of the encounter
between art and law?
It might well be, then, that to endure and preserve question-worthiness of
the encounter, the very encounter must remain protected from any account given
6 Law and art: justice, ethics and aesthetics

of it. To put it somewhat more colourfully, being in the midst of the encounter
between law and art would prove a pebble in the shoe to any account given of it.
What does it take for some-thing to remain essentially a pebble in the shoe to any
account given of it? What does it take for that opening which constitutes a ‘pebble
in the shoe’ to endure as such, namely in a manner that surpasses any actual, and
arguably potential, explanation of, and any sense given to, the pebble-ness? There
is some manner in which the very question remains an essential problem, uncanny
to its own pursuance.

II
Contemplating the Greek myth about hubristic Marsyas and his music contest
with Apollo can bring up well the various trends which contributions to this
volume actually point at, as this myth arguably captures the mystery, tragedy and
complexity that characterises the relationship between art and law. As it is well known
according to prophecy, Athena, the goddess of love and wisdom, of philosophy,
who, important for this volume, also protects the city as Athena polias – Athena of
the City, was to be greater than her father Zeus, who had swallowed her pregnant
mother Metis in an attempt to prevent the prophecy from actualising.
Athena plays the flute she made out of deer bones. Playing the flute, Athena is
mocked by Aphrodite and Hera who comments on her swollen cheeks. Athena
retreats to Mount Ida and, while looking at her image, abandons the flute and,
again significantly for our exploration, curses it. The curse is that whoever picks it
up would suffer the most terrible of punishments. Marsyas, the mortal satyr, finds
it, and dares to pick it up thereby committing his first hubris, the irresistible desire
to play the music of wisdom. Marsyas learns to play so proficiently so as to make
him disposed to be coaxed into committing his second hubris – challenging no
other than Apollo, the god of Music himself, but also the god of civil institutions,
justice and government, to a contest.
Apollo is the master of the lyre given to him by Hermes. Apollo is claimed to
have even enhanced the lyre by adding strings to it. Hermes, the god who bears
the message, the god of hermeneutics, gives Apollo the lyre as the musical mean
to near the hermeneutic riddle. Again, significantly for us, it remains unclear
whether it was not actually Apollo who challenges Marsyas to the contest, so that
the very ground of the hubris is not clear. The muses are assigned to judge the
contest. Marsyas plays a tune that surpasses Apollo’s and is declared the winner of
the first round. However, Apollo is declared the overall winner as during the
second round he plays with the lyre upside down, something the satyr can not do
with the flute. Some say that Apollo sang and played at the same time – also
impossible to do with the flute. Apollo claims that he just uses air for his singing
which makes it similar to playing the flute. (No doubt Apollo would make a good
lawyer . . .) At the command of Apollo, who later somewhat repents, Marsyas is
flayed alive, his skin is taken off, exposing his bare flesh, veins and warm intestines
which pop out of the flayed body, details that Ovid described in Metamorphoses.
 Introduction 7

Marsyas cries out: ‘Why flayest thou me so? . . . It irketh me. Alas, a sorry pipe
Deserveth not so cruelly my skin from me to strip.’8
We can see an obvious theme in the myth that takes us towards a starting point
in which to conceive the relationship between law and art. Apollo’s music, his
reasoning, victory and punishment may evoke the dominant power that uses art
for strengthening and sustaining the structures of power. Art quite often lends
itself to the monumentality of the dominant power. Art engages with dominant
power so that the achievement of art come in part, as Adorno observed, on the
back of conditions of exploitation, domination and oppression. As postcolonial
scholarship shows, works of art often hide unconscious colonial symbols and prej-
udices that both assimilate and distance the colonised thus silencing and
distorting her genuine alterity.9 Apollo’s music and its glory is that which depicts
orderly institutions and the decisiveness and command, whose music trumps any
singular song that may have attempted to interrupt their reign. The story points,
perhaps, to the triumph of decision over hesitation, of the crunch point where
general good has to trump over particularity, of the apollonian image of the world,
as Nietzsche referred to it in The Birth of Tragedy over the Dionysian untamed
desire.10 The ethics and Justice, as well as the deployment of aesthetic judgement
and creativity may well be oppressive, one that is either not critical or which criti-
cal only within a range of possible criticisms in order to preserve some sameness
palatable to the powerful. The powerful that rule the city can be a dominant
group or culture that constitutes uncritically and rigidly accepted essence of tradi-
tional origin. The ‘powerful’ can also be an organised religion that manages to
maintain, inter alia through art, both a ‘natural’ and ‘critical’ status and with it
‘critical reason’ that is in actuality highly controlling of the range of possibilities to
resist. ‘Powerful’ can also mean superstructures of power and ideology as based on
the historicity of dominant and exploitative imperialistic economic interests. But
‘the powerful’ may relate not merely to actors but to the very thinking that craves
for metaphysics – to the truth to which art is subservient as either imitation (Plato),
or as dispositional active participation in, and constant progress and aspiration
towards essences (Aristotle). Such a crave manifests as either ‘positive’ or ‘nega-
tive’ telos, a movement ‘towards’ either perfection or self-destruction which itself
conceals well some fixity and closure in symbolic and conceptual relations. When
art and law are arrested in metaphysics both practical wisdom and critical action
have a for-the-sake-of-which that assimilates and highly control possible conflicts
and un-saids. Art and law, despite being connected, run the danger of becoming
‘useful’ or ‘imitations’ to the very metaphysical thought that consciously and uncon-
sciously constraints interpretation. Thus, in a manner that matures in modernity,
art and law can assume new intensity of becoming subservient to a ‘universal’ that,
through self-concealing ‘participation’ in it, hide its instrumental and symbolic
contingency. The objectifying violence of modern controlling and normalising
power, power that is so entrenched so as to make it blind to its own menace, threat-
ens to subsume art in making its saying part of power’s own internal differentiations
of objective ‘truth’. Such subsumption and taming of art brings to the fore special
8 Law and art: justice, ethics and aesthetics

historical epoch in which the liberating power of art are tied with transgression,
criminality, even terror – amplifying the anxiety of the no-outside of control.
Violence as art can grow exponentially with the lie of the velvety silencing of the
otherness of its saying.
Thus, Apollo’s music can be seen as the aesthetic of the powerful, one that plays
beautifully and serenely the harmonious music and image of order until threat-
ened by another music, that of the infinitely improvising everyday, the music of
life. But art can never fully serve power. With Marsyas, the mortal, we can see the
aesthetics of hesitation, interruption, improvisation and transgression, the happen-
ing of the call to encounter multiplicity and alterity. A strife thus emerges which
links the never ending surplus of ethics and justice that disrupts, one which reintro-
duces insurgency, conflict and even violent resistance into the complacent ethics
and justice that turns law into an instrument of oppression and domination.
Through the myth we find the tension between, on the one hand, free speech,
for which this myth is famous for, pharhesia, and with it, praxis, the opening for that
novel and suppressed possibility/all-too-limited range of possibilities of speech
and action that awakens through encountering art. Free speech holds truth to
power, the constant ongoing refusal of truth to be assimilated and homogenised
into the demands of dominant power. Marsyas’ music is that of the revolutionary
on behalf of the oppressed, the marginalised and the disempowered whose visibil-
ity is diminished by structures of powers that on the face of it seem to effectuate
egalitarian distribution of rights.11 Art, as Marsyan music, depicts the ongoing
re-politicisation of the law, constantly reintroducing genuine conflict, bringing the
suffering of the disempowered, marginalised and assimilated into its eyes and ears,
thus making the music of the law. The means by which Marsyan music can be
played is left for our imagination but the very contest conveys that only through
attentiveness to Marsyas can Apollo be forced to overcome the uncritically
accepted coordinates of his own music and thus becoming more inclusive, ena-
bling necessary discursive inflections as well as the persistence of faith in its trans-
parency to primordial ethics of Levinasian alterity.12 Marsyas is the oxygen that
gives life to the law, keeping it alive, maintaining faith in it. But let us not forget,
the myth is about an ongoing contest and the new inclusion that alleviates suffer-
ing can mark also necessarily different exclusion and displacement of suffering.
Thus some tragedy is built into the contest, namely that only through inflection
and recreation of exclusion can the law become more inclusive.13 Legal aesthetics
encapsulates change and creativity that effectuates ethical liberation through law
in the face of otherwise domesticated, and thus self-destructive, Law’s Empire.
Such Empire, the myth tells us, can ‘win’ only by a ruthless ruse.
We can configure fourfold relationships between law and art that are initially
encapsulated in the myth: the first is how art becomes an instrument of Law’s
Empire by helping the aesthetic idle invocation of subsumption and assimilation
of particular relationships under what is, pretentiously universal, but in fact all-
too-particular structures of power. Second, art is transparent to legal aesthetics
and fuels alterity into the law – re-politicising it. Thus the complimentarity between
 Introduction 9

law and art, the work of art, as Marsyan music, always already responds to exist-
ing political and legal relations. Only then can art be said to be able to hold the
ethical mirror of justice to law, perturbing its ‘managed’ categories. The impor-
tant question that arises here, which pertains to the nature and origin of legal
aesthetics, the dependency of its ‘how’ on its visibility and audibility, is whether
there is some aesthetic sensibility in law, that comes from Apollo to Marsyas, law
that actually ‘teaches’ art something that art can learn as a result of the happening
of some difference that comes from within the persistence, and closure, of law. To
what extent does the law generate its own aesthetics and in turn, transcendence
towards some alterity that is transparent to art that in turn can pick this aesthetics
of law up, amplify it in a way which is audible and visible to law? Thirdly, Apollo’s
power can depict the Schmittian aesthetics of decision by the always antecedent
power that cuts off the ethical mirroring of art, some power, the exception, where
the true force of law is created through the suspension of the legal aesthetics of the
Marsyan music, of that legal aesthetics of mirroring, showing that it is power,
rather than the truthfulness of ethics and justice that are immanent in the law.
Finally we may ask whether the law responds to the ethical need to protect not
only from the ongoing aesthetic hesitation in art, but from the actual violence that
art’s in-sights, sometimes even the very execution of art, can bring in its wake,
however truthful the saying of art is. There is a room for normativity, the need for
which arises from the sheer violence and instability that comes with art and its
truthfulness, even accepting that such protection is temporary, maybe even
‘second best’. The ruse, therefore, might have its point in practical wisdom despite
its coming undone on primordiality and authenticity. The danger of such ‘indi-
rect’ or ‘second best’ wisdom to become a tool of power is evident, of course, but
this, in itself, must not detract from its supreme importance.
All these four dimensions witness, or rather point towards, a complimentarity
between law and art, a positive one, a constant movement, a dialectic, maybe even
a double bind between the justice, ethics and aesthetics of decision and justice
ethics and aesthetic of hesitation, mirroring and alterity. It is a double bind because
only through the former does a beginning begin for the latter. Broadly speaking,
all four connote legal aesthetics, that is legal aesthetics and legal aesthetics.
What constitutes the uniqueness of the thread of this volume, its novelty and
ambition, is that manner in which all these four dimensions point earlier than
themselves and thus at the need for a debate about law and art which stems from
the uncanny nature of art and some refusal of it to become the purpose of any
normative thinking and ‘ought’; ‘purpose’; ‘end’. Tension is thus created between
art and practical wisdom itself. At stake now is also the capacity of art to mirror a
refusal to legal aesthetic as such, highlighting perhaps a chiastic ipseity in legal
aesthetic’s very gesture towards metaphysics, thus opening a political dimension
by resisting the very thinking and in turn, the relationship between power and
truth – the very ethical and political possibility that legal aesthetics opens up. To
what extent can art constitute a quiet and constant originary refusal, one that
persists within, and is transparent to, the very philosophical tradition that views
10 Law and art: justice, ethics and aesthetics

legal aesthetics as linked to ethical and aesthetic judgements, viewing such a link
as a central historical paradigm for law and its own critique?
Can we not read the myth as evoking some irreducible uncanniness which
pervades the relationship between law and art, Justice, ethics and aesthetics? Is
the only possibility to view uncanniness as valuable to the world of legal aesthetics
to be seen as valuable for the sake of such aesthetic? Can not the very ‘not’ that
constitutes the critical opening for legal aesthetics be critiqued by, be subject to
earlier refusal? How should this earlier refusal be characterised? Could not the
earlier refusal itself embody another self refusal, a refusal of refusal? How, to
complete the contemplation, would this refusal of refusal relate to legal aesthetics?
To what extent and how does the uncanny ‘other within’ legal aesthetic enable
the very beginning of such aesthetics? It is thus precisely the possibilities of how
essential uncanniness may compliment with the four aspects mentioned that
the volume, it is hoped, opens up. The paradox of the beginning of law might be
conditioned by, and distort, earlier beginning. Let us leave the myth for a moment
to magnify into uncanniness and this ‘refusal of refusal’.

III
The Kafkaesque title to this introduction thus borrows from Kafka’s story in
The Trial about the many and various gates for the law that are opened by art,
a labyrinth of gates guarded by one’s own innermost fettered [im]possibility. In
his lecture ‘the Meridian’ which was given on receiving the 1960 Büchner Prize,
Paul Celan conceived art as constituting an essential problem – the problem of
problems. Celan said:

But when there is talk of art, there is often somebody who does not really
listen. More precisely: somebody who hears, listens, looks . . . and then does
not know what it was about. But who hears the speaker, ‘sees him speaking’,
who perceives language as a physical shape and also – who could doubt it within
Büchner’s work – breath, that is, direction and destiny.14

Grasping and encountering that which constitutes an essential problem poses a

challenge to the very surplus that survives any performative ‘yes’ of engagement
and a-fortiori to the very crave and gesture of ‘giving account of what does it mean
to engage with art’ or of ‘art and . . .’ quandary – ‘art and law’ . . . ‘art and justice’ . . .
‘art and ethics’ . . . politics . . . and, last but not least, ‘art and aesthetics’. Being in
the midst of engagement with the essentially problematic may well already be very
different from having an idea about what such engagement might involve. Are we
engaging actuality of the essentially problematic, dwelling in the midst of its unfold-
ing, when we begin by gesturing a construction that would give an account of a
problem? Encountering and enduring the essentially problematic is not the same
as facing the point of not-yet-articulated experience and thus ignorance, with a
view to theorise and to give account of it. The happening of art as the essentially
 Introduction 11

problematic happens earlier than ‘art and . . .’, earlier than re-creating, re-presenting
and re-opening, ‘a problem’ for the sake of practical wisdom that may unite a
sense of law, ethics and justice. We see how the whole gesture of the book attempts
unsuccessfully (why?) to reach silence, some relinquishing that opens up something
else. To be essentially problematic means much more than ‘making a problem out
of novel experience’.
Contributions give us clues as to how, and as what, could that ‘earlier’ be
brought forth for readers? All converge in having a sense that there is some urgency
about it; it must reach thinking.
Sure, the encounter with that opening which is essentially problematic no
doubt prompts the creative construction of new problems in ‘current affairs’ in
the face of any uncritically accepted problem construction and in turn, solutions.
And yet, being an essential problem seems to have more layers to it and highly
mysterious ones at that. There is a sense in which an essential problem that renders
problematic any theoretical and practical problem construction, however creative,
renders it so in a certain sense shrouded in mystery and uncanniness and yet one
which is able to affect thinking with deep sense of affirmation and appropriateness.
What is it to be in the light? The essentially problematic, wrestling Celan’s
insights and thus making it a pointer at silence, is so primordial a hint that it
must relate to the problematic happening of thinking itself, something so simple,
engaging with the happening, and yet so essentially fateful in its fragility. The
manner in which art is an essential problem poses a quandary to any sense of
‘conception’ including that of art itself. The very field of enquiry of this volume –
‘art and law’ – must somehow become very problematic to itself and only as such,
as an essential problem, can it near the happening of the ethical and the just.
The troubled nature of the relationship goes to the very heart of what does it
mean to be a human being, a mortal, who dwells in, and in a sense always already
responds to, this essential problem of problems. Why, and anyway, how could,
mortals live with one another given the uncanny nature of this quandary? Why
might it still be extraordinarily difficult to live in an epoch that seems to be free
and which is inundated with radical methodologies, historiographies and geneal-
ogies – all different senses that enable that freedom to infinitely construct prob-
lems and to be in constant engagement with problem construction and solution?
All these methodologies may not yet touch the opening that creates the scission
where mystery of suffering begins at the beginning yet see this tragic attempt to
overcome that failure as ‘life’? What does this failure point at? What are the conse-
quences of suffocating the possibility for a grasp that essential problem is assimilated
into the derivative movement that preserves merely a ‘problem’? What happens
when the very tendency for opening up the possibility for new problems, legal,
ethical and political problems, stop being problematic? Can art re-charge such misuse,
even abuse of itself, thereby offering hope to overcome the silencing of its essential
alienation that rumbles within itself? One of the problematic contemporary aspects
of this relationship is that its troubled nature becomes less and less visible in a
legalised, representational and calculative world. That this world becomes more and
12 Law and art: justice, ethics and aesthetics

more violent in the wake of more and more critical legalisation may hint at a
deeper unfolding which is silenced by always-already legal responses to that
violence. The contemporary legalised world and its legalising critical actors may
be conceived itself to be a work of art that remains a sign which is not read.
In ‘Majesties’ – his seminar on ‘The Meridian’ – and in critiquing Heidegger’s
Introduction to Metaphysics, where Heidegger had discussed the nature of man as the
strangest of the strange,15 Jacques Derrida alluded to Celan’s attempts to articu-
late the essential problematic nature of art and related this problematic nature to
his own critique of the primacy of the question of Being, presence and sovereignty.
Derrida said:

I do not say a poetics, a poetic art, or even a poetry; I will, rather, say a certain
poetic signature, the unique signature of a unique poem, always unique,
which attempts to express not the essence, the presence of what there is there
of the poem, but where the poem comes and goes, that attempts, then, to set itself free,
through art, from art.16 (my emphasis)

Derrida detects in Celan’s speech the fundamental characteristics of art, namely

that it tries to free itself from itself, overcome itself as itself, be essentially uncanny
to itself. The ipseity that characterises the very uncanniness of art problematises
any comportment towards the very notion of ‘art and . . .’. There is, as Celan
alluded to in his countless ‘perhapses’, which Derrida keeps referring to, the more
ancient estrangement of art even from its own uncanny presence within anything
ordinary.
Derrida alludes to Celan’s hesitation about giving account of art which makes
it essentially problematic to itself, a becoming of alterity of the Wholly Other,
giving the Other her own time, Other even to that all-too-human domain of
uncanniness. In a sense also the very uncanniness that is present in art always
already distorts art. Derrida detected in Celan’s text the essential problematic of
art as that which sways between, on the one hand, saying of the work of art, or the
poem’s there-ness, which is always uncanny (Unheimliche) and, on the other hand,
the most uncanny (Unheimlichste), and therefore Derrida would say, unconditional
and absolute hospitality.17 Art refuses even that its own present uncanniness,
showing its uncanny happening to be essentially not yet most uncanny, still finite,
not yet one that ‘turn the breath’ which gives the Other her own time. The sound
of Unheimlichste – that music – that most uncanny even to its own uncanny saying – is
the happening that makes art essentially problematic to itself – it is the beginning.
In my reading, Derrida points to a mysterious ipseity that pertains either to the
very notion of Being with no possible outside to it, or indeed, to the relationship of
proximate exteriority within Being, an Other within, a thinking which, as Levinas
pointed out, is otherwise than thinking-Being and is pre-ontological. How we
grasp this ipseity points to the very question of law and art, and has aesthetic
aspect (grasped as perceivedness), ethical aspect (goodness, valuable-ness) and an
aspect of justice (due to be given back). All related to the question of what does it
 Introduction 13

mean to be a human being in the midst of the uncanniness of happening, to grasp the
finitude of the human as mortal and as Derrida puts it, ‘to open up the problematic
of the legitimacy of submitting the question of life to the question of Being’.18 This
question of legitimacy of art as presencing, the ethical and political implications of
obeying some law of ipseity by contemplating this self-questioning nature of art,
lies at the heart of the question-worthiness of art and law. It is in meditation of
just how actual mortal law is-not and the critical unfolding by which mortal law
compliments these two notions of uncanniness that contributions to this volume
constitute a point of inflection, of displacement, from books on legal aesthetics. It
is in this manner that the volume constitutes a ‘turn of breath’ in grasping the very
happening of the boundary of such aesthetics and in the very contemplation of the
relationship between law and art.19
Thus the question of law and art relates to the hermeneutic of beginning. How
is beginning as art and as law, and how might these beginnings be complimentary
to some sort of usefulness to their respective instantiation in legal aesthetics that
manifests as mortals’ affairs and their law? The beginning of the very ‘time’ and
‘place’ of mortals as that which enriches a for-the-sake-of-which that pertains to a
process of legal aesthetic is problematised. Law and art, grasped as the question of
faith in law is mysteriously related to a faith in some fate of refusal. At stake is
whether the very juridifiability of art not distorts the law to which the essence of
art belongs. The question-worthiness of law and art thus becomes a question-
worthiness of being-in-uncanniness and that takes the stake of the question to
become a contemplation of the relationship between dike- as the necessary law and
techne-, art, that is never a mere craft, but the violent knowledge into which human
beings are responding in being aware and which also makes for an essential problem
of their own finite uncanniness before the law.
Marsyas, the interrupter, is subjected to the most horrific of punishments,
taking his skin off, pealing away any particular feature, any reminiscence of per-
sonality, leaving only the bare insides – the common denominator, the brutally
achieved, but fake, consensus. The inability of Apollo to bear the face, the skin,
that particular source that would remind him of this endless improvisation is
apparent. The need for Apollo to resort to a ruse points to an act of silencing and
an imposition of something else, a substitute which will lead to a winning, whose
rightness proves derivative and which would effectuate some primordial tragedy.
Apollo’s infliction of a punishment for the ‘hubris’ of Marsyas, is followed by his
repentance by putting the (hermeneutic) lyre to the side for awhile, at horror with
himself, and his own brutal realisation of that tragic ruse and at his attempt to
undo that ruse through such severe punishment. The ruse is transparent to the
god of music, justice and government but conveys something that can never be
fully accommodated, something that Apollo, as god, can never be at peace with.
Thus, justice seems to be impossible to be done but somehow it is done in the
contest and the manner it is decided and ‘resolved’. It is the hubris which reveals
a mysterious and troubled schism within the aesthetics of giving back what is
due – justice; does this justice connote ethics that is spoken through the language
14 Law and art: justice, ethics and aesthetics

of legal and moral rights and duties or is it the due that is owed and manifested as
the happening of earlier desire the saying of which generates something even in
Apollo himself, something that he can not get rid of, nor fully comprehend and
accommodate?
What calls from Marsyas’s music? How ought (ethically and justly) the muses
understand the hubris of Marsyas which its very occurrence as hubris is doubtful?
How could we account for the uncanniness of it? How could this ‘hubris’ that arises
out of the fateful earlier hubris by Marsyas towards Athena – which had ignited the
gift of the curse of the Goddess of love and wisdom – teach us about the relationship
of law and art, between dike- and techne-, between the assignment of necessity and
fate and the violent knowledge that responds to that assignment?
The myth tells us about the subtle relation between mortals and gods that
reveals their dependency and mirroring of characteristics in one another and thus,
their co-existance in each desire for the other.20 The story does not only reveal the
desire for the godly on the part of Marsyas, but raises the issue of whether the
contest itself is not steered by Apollo as only through such a contest can he be god.
He can only be a worthy god if he dares traversing that ‘contest’ with the mortal
song, one that he can not erase, impossibility that he is desperately trying to overcome
through the flaying he inflicts on Marsyas. Only in dwelling together with mortals,
with being-in-death and, in turn with the condition of possibility for desire, can
Apollo be god.
The myth, then, does point towards the tragic complimentarity between dike-
and mortal desire as that fall into violence that keeps igniting legal aesthetics.
However, even this complimentarity merely points at the uncanny beginning at a
deeper tragedy that binds both gods and mortals who dwell together in the strife
between dike- and techne- – together in sublime uncanniness, that is neither of merely
human origin nor God’s ‘natural’ law but rather an encounter that only necessity
and fate can order. The hermeneutics of the mystery, the curse of wisdom, prevails
between law and art in a way that mortals and gods desire one another. It is this
strife between dike- and techne- that constitutes the fateful and wonder-full law for
both mortals and gods. The violent desire, art, a desire for the hubris, for the uncanny,
is no other than the power of dike-, the unbounded cosmology of nomos – the law,
and of logos, the secret word. The law that makes both human and gods response-able
together as art, responds to the sublime uncanniness of the hubris which constitutes
the origin of the call for justice, for ethics and aesthetics in a manner that is
uncanny and interruptive to any mortal punctuation and ‘sense’ and purpose-ness.
Despite the contest having an aura of rules and legality, do not the muses, as
muses, rather than judge, attest to the music of the strife between dike- and techne- –
the music that even the god of music could not play, perhaps even not Zeus?
Indeed, the gift of Athena – the flute of wisdom as well as the uncanniness of
Hermes’s lyre, shows how dike- harbours the prophecy of Athena anticipating the
finitude that characterises gods. Art is the very violence of the contest and the
justice that is done in it, through the persistence of the mystery of the ‘hubris’ by
Marsyas towards Apollo which is itself already a response to that hubris towards
 Introduction 15

Athena, the hubris of beginning that binds him and Apollo together in fate. Athena
thus activates the fate of dike- in Marsyas the desire for the godly that traverses his
sublime desire for death, and in turn coaxing and awakening a mortal desire in
Apollo, who orders the skin, the medium through which mortality is so radiant,
awakening the impossible desire to rid himself of mortality in order to re-turn to
the pure godly again.
The music of mortality by Marsyas, desired by Apollo, is contrapuntal to the
human’s song of material and useful injustice, beyond merely the human desire
that can not be fulfilled by any oppression by law. It conveys the sense, that humans
always already respond to, beyond their choices, makes them grasp that the violent
knowledge conveyed by their words and deeds is not for their sake. The hubris,
perhaps, indicates also the ambivalence between transgression, abomination as
the most primordial ethical happening. Gewalt, originary violence, as the riddle of
art, as that which fuels the contest and the ruse of any comfortable resolution of it
even, arguably, as some critical complimentarity between law and art that antici-
pate enrichment of the performativity of law. The riddle of art happens as music.
There is something so terrible in the fatefulness of this story but at the same time
so humble and infinite in its simplicity, the pure breath of love that is at the begin-
ning of justice, ethics and aesthetics, fate that can not be disempowered of any
human power that appropriates the portrayal of suffering and conflicts. So, could
legal aesthetics in appropriating a for-the-sake-of-which for itself be the most
sophisticated form of the ruse? Could it be the harbinger of a tragedy more
primordial than that tragedy that arises at the impossibility of law to render that
very justice that is transparent and immanent in it and any complimentarity that
sustains the for-the sake-of-which of such aesthetics?
The uncanniness of art, to which any gesture towards ‘art and . . .’ is com-
ported too, points to the relationship between humans and the divine and asks
how the uncanny and the most-uncanny feature in this relationship. Is the relation-
ship between humans and the divine pagan in which the uncanny is mysterious to
itself as the most uncanny, or is the relationship based on divine revelation that
installs the most uncanny in the world, that installs the witness who is ultimate
Other to any pagan sameness that unites mortals and gods and who witnesses the
moment of art being an erasure of any trace of dike- and techne-, erasure that is the
most uncanny origin of the relationship between them, the origin of their beginning,
one, again, which is antecedent and exterior, one which points within their pagan
manifestation as wholly Other? However we contemplate it, there is a mystery.
From which law does thinking call? How are mortals to grasp the law of the
mystery(s)? How do these mystery(s) translate into the actuality of the turbulent
relationship between truth and power and in turn how does suffering originate in,
and respond to such turbulence? How can uncanniness as absolute singular Other
relate to its origin in mystery?
Once the dimension of uncanniness that characterises dike- and techne- opens
up, the very relationship to the question of how legal aesthetics is located in
the happening of both becomes not merely constantly nourished, but rather
16 Law and art: justice, ethics and aesthetics

essentially troubled. The question then becomes how to contemplate whether

uncanny complimentarity to legal aesthetics happens as uncanny (unheimliche) that
already harbours the most uncanny (unheimlichste) or as the uheimlichste as radical
exteriority, in short, how is uncanniness configured into legal aesthetics?
The complimentarity and contrapuntuality between uncanniness and legal
aesthetics, then, assumes a twisted perspective: that legal aesthetics is maintained
only through its suspension (it being a ruse) by the uncanny justice and hospitality
of art and that art is maintained only through its suspension by the decisiveness of
that juridifiable dialectic that pertains legal aesthetics. Despite art having the
capacity to sublimely awaken critical audibility in law or to respond to critical
openness that manifests as always antecedent aesthetics of law, any critical aestheti-
cisation of law can also be conceived as the legalisation of that sublime capacity of
art. The myth seems to critique any unqualified ‘yes’ between law and art, a ‘yes’
that somewhat tames the uncanniness between the two.
But, does not essentially problematic art that resists sense and resists an account
of how originary ipsiety in uncanniness features in legal aesthetics must also convey
an originary ipsiety in techne- which points to ipseity in dike- itself and thus the very
uncanny relationship to legal aesthetics becomes a problem of problems? What
‘showing’ for legal aesthetics does it take for art to overcome itself through art? It
is the traversing, the crossing, of that ipseity which constitutes the chiasmus of art
and law – that region on the outskirts of sanity – the beginning.
So, finally, then, listening to Celan, perhaps this quandary indicates further.
Celan’s in-sight as Derrida portrays it is that ‘where the poem comes and goes, that
attempts, then, to set itself free, through art, from art’. So if formal and objectified law was
the ruse for critical legal aesthetics, and then legal aesthetic becomes a certain ruse
in relation to the uncanniness of art, now, art itself including its uncanniness becomes
essentially problematic revealing the ruse of its own ‘law’ as its own law. We can
recall that it was wisdom and love itself, as an insight of Athena, an alienation
from her own beauty, the beauty of love and wisdom that had been triggered by
the laughter of the other goddesses at her, which led to the origin of the curse and
with it, of the double hubris that formed the rest of the story. The curse of Athena
may imply the unheimlischste, the ipseity of the very uncanny presence of art towards
itself.
The myth, and the relationship between truth and power, law and art, and as
we saw of the essential estrangement of art from itself, is taken to be about how
mortals can traverse, through their mortality, the beginning which immortalises
them into the impermanence of techne- that occurs as the assignment of dike-.
The question is how are we to conceive ‘the beginning of art as art’ as the assigning
order of dike-. Depending on this view, how are we to conceive the beginning of
ethics, politics, justice and how such beginning relates to legal aesthetics. Do techne-
and dike- relate to legal aesthetics as the most uncanny exception to the mysterious
interconnectedness of all beings – exterior to the uncanniness towards legal
aesthetics that this interconnectedness brings forth? However, could it be that
the seemingly most-uncanny grasp as exception – is still juridifiable, namely
 Introduction 17

not yet uncanny at all vis à vis legal aesthetics, sophisticatedly, and tragically, still
nourishing it?
Could it be that the view of unheimlischste as exteriority despite its apparent
radicality and being otherwise than the finitude of unheimlische, despite the total
emptiness of its perhapses, is the origin of juridifiability – is still a self-concealing
‘yes’, to legal aesthetics and thus is not yet a genuine ipseity of uncanniness towards
it? Could it be that the radical punctuation of the wholly Other within the uncanny
(unheimlische) anticipates punctuation and thus is precisely the origin of the for-the-
sake-of-which of legal aesthetics? In such a question we can locate, arguably the
deepest origin of the turbulence that characterise the relationship of law and art.
How may such exteriority further nourish legal aesthetics? Derrida’s reflection
on Celan’s account of the secret and problematic encounter with art, may indi-
cate, perhaps, that art itself grasps its own beginning as a self-grasp that it is, as
itself, not exhaustive of truth, that art itself is finite for itself and that a most uncanny
(unheimlischste) event should be taken to allow politics and law to grasp some human-
based, and thus machinational, finitude of the very insights of art, that is for politics
and law to grasp the finitude of art as art. But this would, in however weaker and
aporetic sense, still maintain the essential link between art and truth and would
thus bear certain implications and relationships of estrangement of the truth of art
(as grasping its own finitude) to legal aesthetics.
The upshot is that the most uncanny as radical exteriority leads to constant
reincarnation of legal aesthetics through which art overcomes itself, including its
own strange relationship to legal aesthetics – what a double bind! Can, then, the
Greek myth hint at Athena’s curse of wisdom igniting the ipseity that characterises
the aisthesis, ethics and justice that makes the account between law and art both
complimentary and encompassing the most uncanny? Or does that wisdom indi-
cate that when art becomes most uncanny as exterior to its own uncanny presence
actually juridified and stops to be genuinely uncanny in relation to the juridical?
Is encountering the Other to that mirroring between human-gods, not another
way of enforcing the subject, the human desire for punctuation, the legal, despite
its gesture to the contrary? In this ipsiety of ipsiety lies the problem of problems of
law and art. It is how to characterise uncanniness and thus, the truth of suffering,
towards juridifiability of art which is at stake in the volume.
However, unheimlichste could indicate an attempt at extrication from art not as
art but altogether. It could be understood as a genuine finitude of the primordial-
ity of art tout court, thus resisting the subsumption of philosophy by, and into, art.
Law and politics have the role of capturing that moment – embracing the insights
of essentially problematic art without granting it any monopoly, thus in a sense
protecting thought and action from that monopoly and the violence that art’s
insights and its monopoly generates – thus constituting a new dawn for legal aesthet-
ics that does neither monopolise, nor being monopolised by, art. This also changes
the role of law in renewing the dialecting between decision and hesitation, elevate
it to a level where the finitude of art is at question. Dike- and techne-: is not the myth
about Athena’s leaving of the flute precisely as the very manner in which the
18 Law and art: justice, ethics and aesthetics

beginning of wisdom abandons gods and mortals to battle the still finite uncanniness
of art, to say that there are other truths than art’s?

IV
Part one brings out various philosophical reflections on the relationship between
law and art. Krzysztof Ziarek opens this part by developing the notion of
poietic ‘Justice’ that is built on Heidegger’s notion of poietic dwelling. Dike-, he
argues, constitutes a unique sense of ‘Justice’ in a manner which is not-translatable
to the notion of ‘poetic justice’, one that conceives justice as iustitia, a notion which
is still associated with normative discourse of law and with morality. Dike- is also
not translatable to any absolute alterity of an Other in the manner that Levinas
promoted, namely pre-ontological alterity which is otherwise than viewing the
other as a thinker of Being. Viewed as dike-, ‘justice’ connects the perspective of
poiesis and connotes the strictly singular one-time enduring, and in turn, measuring,
the time-space of the event of being’s withdrawal. Otherness, as Ziarek puts it, is
uniquely and singularly manifest in this originary time-space opening up to the
(never) present and constitutes an event in which ‘Justice’ is measured otherwise
than in a manner that can be assimilated into the command-based notion of Justice.
Ziarek’s critique demonstrates the near total dominance of iustitia that is weaved
into many similar distortions of basic notions, distortions that have become pillars
of the philosophical tradition in the West and which has continually forgotten the
world of the early Greeks and the political and ethical potential that this world
encapsulated.
However, ‘Law remains law’ argues Andreas Philippopoulos-
Mihalopoulos. Law is just only when law’s own repetition produces difference.
The ethical as well as the political route towards the just is usually captured as
Otherness which is exterior to any transcendence that preserves the same. Alluding
to de Chirico’s seemingly unthoughtful and mundane reproduction of his Piazza
d’Italia series of paintings Philippopoulos-Mihalopoulos argues that otherness
as the impossibility of sameness is immanent in repetition. He argues that law’s
process of becoming-other is enabled through the aesthetics immanent to the
repetition of the legal. In considering the notion of repetition in Kierkegaard and
Deleuze an opening horizon for Justice which continues to haunt the law (and
lawyers) is conceived as the paradox of immanence, namely that only repetition
generates the very impossibility to repeat. In debating the [im]possibility of pure
repetition the chapter raises important questions as to the very emptiness or
groundlessness as a condition of possibility for difference. The chapter opens with
a debate between the lack of confidence in the justice created by open aesthetic
encounter with law as against the possible lack of primordiality of otherness that
is generated in legal repetition. The question remains: should we conceive the
relationship between law and art so as to ask what can art learn from law?
The very possibility of chiasmus between being Jewish and being Greek, the very
‘and’ in ‘Athens and Jerusalem’, is in question for Ariella Atzmon who argues
 Introduction 19

that Judaism is characterised by a categorical detachment from thinking-Being,

detachment that manifests as a total deprivation from ethical and aesthetic sens-
ibility and in turn from a genuine possibility of enlightenment. Such a detach-
ment, she argues, is forced to reproduce total legalism. This legalism sublimates
fear and obedience through pseudo hermeneutics – pilpul – one which is not
grounded in any axioms but rather in the black hole of choseness and ruthless
surveillance. Such pilpul effectuates the ultimate otherness to thinking-being, one
that involves violent raptures and which can only be preserved through terrible
obliviousness to ethical and aesthetic encounter, torturous self-preserving expul-
sion from both art and science, from the temporality that calls as their origin.
Atzmon considers the nature of the Greek polis as the agora, the empty space
where ethics and aesthetics operate to constantly change signification, a challenge
which is entirely absent from Judaism. In reading Heidegger, Bultmann, Lyotard
and Jung, Atzmon traces the installed notion of command and obedience which
is based on the Book of books – the Old Testament – a text that can not be
‘re-written’ but which, thought-provokingly, has nevertheless managed canonisa-
tion in the West.
Could the very subsumption of philosophical truths into the truthfulness of art
become a point of departure for the re-turn of philosophy and in turn to herald a
dawn of unique political thinking that recasts human togetherness and the rela-
tionship between law and art? Igor Stramignoni gives us an overview of Alain
Badiou’s highly original and multi-layered philosophical gesture. The Platonic
question of whether there are truths rather than mere opinions re-turns with
displacement and critique of Platonism. Stramignoni takes the reader through
Badiou’s complex view of reality which re-defends ‘the true’ but not as a ultimate
truth but rather as a fourfold dynamic structure that embodies the poeme (art/
invention), the matheme (cognition), political invention (stakeless empowerment not
allowing politics to become oppressed through fragmentation that in fact leads to
reified political unity and oppression) and love. The role of philosophy is to seize
the truths as they arise in that void that shows in the encounter between matheme
and poeme without any totalising stake in power. Philosophy, itself a void of ever-
changing points of contact between multiples has the rule of ensuring the seizing
of truths out of those encounters. Schools of thought that conceive art as incapable
of truth thus giving it merely educational and therapeutic function, as well as
those romantic schools which conceive art as the very manifestation of truth, are
both limited in grasping the philosophical and political implications of different
domains of truth and ongoing multiple encounters between these domains. In his
reading of Badiou, Stramignoni elucidates new openings that redefine the role
of law, politics and democracy, ones that reconfigure the relationship between
philosophy and art on the basis of them not being reducible to one another. The
chapter opens up new possibilities of conceiving the relationship between art,
truth, politics and law which challenges any existing view of their relationship but
which also witnesses Badiou’s re-imagining and reconfiguring the role of art and
legal aesthetics.
20 Law and art: justice, ethics and aesthetics

In Shakespeare one can find the whole of life and philosophy said Levinas.
Taking off from Foucault’s portrayal of the Shakespearean drama as the rationale
for the state conceived as a violent coup, Richard Wilson provides a
Shakespearean tour de force detecting two strands in the dramatist’s work which
encapsulates the very tension to which art stands to order and law, tension that
features centrally also in Derrida’s work on the force of law. The first strand is the
one which subordinates human power and decision to aesthetic hesitation and
open endedness, one which inspired post-War thinking in Germany, for example,
philosophers like Walter Benjamin and Hans-Georg Gadamer. In the main,
though, Wilson interrogates Carl Schmitt’s philosophy of the Political and of
sovereignty as well as Schmitt’s own reading of Shakespeare, as Wilson puts it, the
most significant ever made by a lawyer. Shakespeare is shown to nourish Schmitt’s
own notion of the Political and of sovereignty and that the ‘Weimar constitution
could only be reformed by revolutionary means’. The readings of Hamlet, Troilus
and Cressida, Coriolanus gives us a Shakespeare who acknowledges the need for
decisiveness, the exercise of sovereignty as an exception, one that preserves the
law through its suspension, one which preserves the divine right of kings and
which cuts out aesthetic insights and the deliberations that ensue. Any democratic
sentiment, one which utilises the contestability of truth is shown to be contrasted
in Shakespeare with an irreducible element of coup d’état, violence and terror, one
which resists the oppression of indecisiveness harbingered by technological rela-
tions and Globalisation. This element effectuates some ethics and aesthetics of
sovereign power as a pre-aesthetic autonomy of law and order. Thus, indetermin-
acy can be detected in Shakespeare within the very perception that constitutes
aesthetic experience and its relationship to power, that, perhaps, characterises the
human as a political animal. The tension detected in Shakespeare raises not
only the question of whether law is preserved through its suspension of aesthetic
hesitation, but also whether great art can only happen in the circumstances
conditioned by such suspension.
My contribution reads some of Heidegger’s writings from the middle and late
1930s, a period of huge development in his thought. In so reading I reflect on the
notion of truth as mysterious unconcealment, one that involves double conceal-
ment, as a temporal opening of presencing that is always already given to the ontic
notion of truth as correctness and incorrectness. I have read Heidegger and
dwelled on the question of what does it mean to be at, respond to, the moment of
happening of this double concealment and what would it mean to decisively
respond to the decisive happening of that moment. I argue that such being and
responding at this primordial happening is demonic that constitutes the origin of
the agon of suffering and which characterises a fore-structure of de-cision that
engulfs the artist, the performer, the prophet. The being-there in the look of being
that characterises the human condition and the awe-sense as more primordial than
sense and non-sense that makes of mortal’s own being. The demonic as the origin
of agon refuses the perpetuation of the agonic. My argument is that this decisive
fore-structure stands in refusal but still in audibility to the correctness-bound
 Introduction 21

contestability that characterises the decision-undecidability movement of critical

thinking and critical legal thinking that grounds itself on the changing boundary
between law, ethics and politics. The surplus that characterises juridifiable
undecidability that characterises critical thinking is agonic, that is not-yet demonic,
namely is still [in]correctness-based – despite deconstructing any correctness.
Located between what Jacques Lacan referred to as the Symbolic and the Real
Ewa Plonowska Ziarek’s reading of Nella Larsen’s 1928 novel, Passing,
explores feminist aesthetics in the Harlem Renaissance through the notion of the
curse. In showing Larsen’s subtle [mis]appropriation of the theme of the Biblical
curse of Ham, Ziarek brings forth subtle insurgency (e.g. by engaging with female
rather than male sexuality) that characterises Larsen’s voice, one that through
irony, mockery, jokes and laughter – through the performativity of non-sense,
[mis]uses the curse. Larsen’s prose generates a language that overcomes the oppo-
sition between malediction of curse/racism and benediction of ethical propaganda
that heralds a promise of a new world. Larsen’s voice overcomes both racist exclu-
sion and the propagandistic inclusion that complements it and draws a line in,
inserts an incision, into language itself. The curse haunts both malediction and
benediction and demands unique grasp of the interaction between art and law,
one which creates new opening for resistance within language othering and over-
coming the curse’s metaphysical perpetuations. The law is transcended not through
direct insurgency but through misappropriating it in the novel and creative new
inflective performative moments for language. Ziarek’s chapter goes to the very
condition of possibility of genuine resistance through art and charts a subtle line
between the uncanniness of art to the possibility of its audibility within the very
cursed dialectic it tries to transcend. There is an obvious echo but also a tension
with Atzmon’s chapter which also discusses the Bible and we may ask whether
Ziarek’s reading of the curse involves an implicit Greek feminist critique of the
Bible and Jewish thinking. However, the possibility of overcoming the curse may
still be the manifestation of its very self-concealing properties and so there might
be some tragic element in the very notion of that beginning that Ziarek portrays.
How could aesthetic experience enrich and help us feel our way of being together
and care towards one another? Adam Gearey explores a novel notion of a ‘we’
grasped as aesthetic of welfare (as Gearey puts it well-fare). Such aesthetic consti-
tutes the very being of humans. Gearey reads Heidegger’s earlier writings on
Aristotle, his Being and Time (but without, as Gearey says, falling into his mistakes), as
well as the writings of G.H. Mead, M. Nussbaum and J-L. Nancy. In reflecting on
how the notion of being-with is essential to humans – Daseins for whom their Being
is an issue – Gearey provides pointers towards an ontological sense of welfare based
on care and primordial solicitude. Wishing well to one another becomes an onto-
logical gesture in which one’s own innermost possibility of being is enhanced and
degraded in direct dependence on the care bestowed on the constitutive common
worlding in which each Dasein dwells together with other Daseins. Togetherness
becomes the aesthetic instantiations of everyday compassion. Art bears the capacity
to enhance compassion and empathy. It is in wishing well that art and law can be
22 Law and art: justice, ethics and aesthetics

essentially, though critically, complimentary. Heidegger’s insights are used to the

inauguration of a sense of togetherness towards a new left that is not merely based
on calculative and representational welfare but flows from Being and conditions it.
Part Two examines the dynamic relationship between the law and creativity, sin-
gularity and performance. Zenon Bańkowsky and Maksymilian Del Mar
take us through a series of workshops in which visual and movement artists, as well
as a curator, conducted a series of carefully-thought sessions. The creativity
erupted in these sessions, they argue, challenged each participant by generating
mirroring and vulnerability. The sessions enlightened all participants bringing
to perception the potential encapsulated in non-textual interaction, one which
generates awareness of, as well as a challenge to, the tendency of the law not to
encounter a particularity gap and to assimilate any particular suffering into its own
general categories, a generalisation which is subsumed even in its most particular
instances. If law evolves for its own sake, these sessions challenge that. Textual-
verbal interactions, however creative, tend to be conducted under persistent and
stable power relations which turn into obliviousness towards a face-to-face encounter
that characterises what Raimond Gaita referred to as ‘a common humanity’. Non
textual interaction can re-open sensibility towards the particular which will inject
contestation, renegotiation and reconfigured inclusiveness into legal visibility and
argument. Further, the chapter arguably opens the door to a critique of the very
notion of particularity.
In meditating upon law’s lack of empathy to the complexity and intimacy of
suffering, Ian Ward considers three contemporary post 9/11 plays to show how
terror, both in its enigmatic origin and in the inexpressible suffering that it leaves
behind, escapes legal analysis. In his Stuff Happens, David Hare shows that a
creative approach to facts can turn the theatre into a courtroom, an intriguing
Jurisprudence which interrogates the narratives behind the simple facts of vio-
lence thus putting on trial the so-called ‘actual’ facts as depicted in law. The play
exposes the danger of using law to strengthen delusions that make terror more
palatable to dominant power. The creative manipulation of fact by the playwright
brings ironies and humour that allude to the partiality of truth about terror that is
exhibited both by those committing ‘terrorist acts’ and those who ‘fight’ terrorism.
Actuality becomes a theatre: Deborah Brevoor’s The Women of Lockerbie shows the
near irrelevance of law for both grasping and responding to grief. It shows how
the role of drama is to bring up the unheard everyday suffering as well as its
accompanying emotions, generating genuine human compassion and wider sense
of contemplation and responsibility that falls between the chairs of the big swings
of law and politics. Victoria Brittain and Gillian Slovo’s Guantanamo brings into
perception what does it mean to be in a zone without law, one which in the best
Agambenian fashion suspends law in a manner which always already in an exer-
cise of power legalises life ex post facto, a zone that is full of intimate injustices and
suffering. Ward argues that in overcoming the immediate desire for revenge,
drama generates reflection and compassion and should have central place in legal
education. In that he puts forward a line of arguments that continues Bańkowski
 Introduction 23

and Del Mar as well as Manderson (summarised below) about the role art has to
enhance what law, by itself, may not be able to do.
The unbounded ocean as a metaphor for nebulous nature as well as for that
from which every particular wave comes from and into which it returns is a perfect
locale for evoking the tension between law and art. Stephanie Jones’ chapter
explores the problematic manner art inspires legal creativity. Jones beautifully
traces and contemplates Hugo Grotius’s allusion to Lucretius, Vergil, Seneca and
Ovid in his texts of De iure praedae and the famous Mare Liberum – a foundational
text for secular Natural Law. Jones shows that resorting to classical poetry by
Grotius as authority to his argument about free unbounded oceans – poetry whose
authors also stand in tension to one another in their view of ‘nature’ and ‘the
ocean’ – subtly indicates at his awareness of tensions in his own argument between
nature as poetic and epic unbounded and nature as serving political pursuits in
which he was also implicated. Conceiving nature as oceanic reveals unswerving
primordial hesitation towards any human use of the ocean however generous this
use might appear to be. In highlighting the dissonance in Grotius’s writings Jones
unsettles his secular liberating ‘promise’ from within his work. The argument
reveals some directionality in his writings which highlights the actual power of
poetic and creative ‘nature’ as art to both transcend, that is to inspire the decon-
struction and critique of, the very legal texts that allude to it, legal texts that are
interpretations captive in world view, and thus ‘theory’ which is itself part of the
sinister political interest of the time. Jones’s Grotius can point out that art is hos-
pitable in that it has the surplus to uncloak its abuse; abuse where universal theory
is in effect a rationalising tool of what might be imperialistic comportments that
evidence moral deterioration. Grotius’s possible [mis]use of art leaves us with the
quandary not only of the truth of ‘Nature’ but of the very nature of truth in art.
Derrida’s aporetic notion of impossible absolute hospitability is instantiated by the
space between yearnings for unboundedness which is always necessary mediated
by human punctuations and interests. The chapter encounters the impossibility of
being-in-the-ocean, in the poetic ‘law of the open’ which can not be owned –
natural law which is always in tension to the law of nature which leaves nature
itself, the open, as a quandary and one that testifies to the awry legal and political
reliance on the sublime notion of beauty. Perhaps, continuing the sublime line of
this chapter, the very gesture of hospitality may be critiqued.
In his reading actual legal cases as literary texts Robin Lister explores the
possibility of conversation between law and poetry which may aid the quest for
justice and authority. Poetry is conceived in legal practice as possessing negative
capability which law can not tolerate in its quest for certainty, consistency, coher-
ence and predictability. Lister shows how the authority of law is eroded precisely
by sticking to this quest and how the law is constantly anxious about such erosion.
The authority of poetry, Lister argues, stems from its polysemic potential and
although the law can never take poetic insights fully on board the encounter with
poetry forces the law to open its eyes to its messy contingency. Though still textual,
Lister shows that it is poetry which can release law from its own solipsistic closure.
24 Law and art: justice, ethics and aesthetics

The critical reading discusses a legal case in which Seamus Heaney’s ‘Limbo’ is
explicitly referred to by the judge but in a manner which, bar a melancholy
reminder of law’s tortured soul, still begs the question as to the extent to which the
law can encounter and accommodate the complex ethical insight of the poem.
Next, Lister reads a novel, William Gaddis’ A Frolic of His Own, which shows how
obsession with law can impose closure on everyday life; that in going to the law so
readily people compensate for ethical burden that necessitate them to face their
own problems, their own otherness from within. The reading of seminal Negligence
cases testifies to the closure of common law’s apparent open journey of ‘precedent’,
closure which nevertheless increasingly signals its captivity within the insistence to
develop on its own terms. Not only can poetry destabilise law but it can also help
us to have realistic expectation from it. In exposing the troubled relationship
between art and law, Lister shows a limited zone for hope and faith – that despite
law and poetry being irreducibly different pursuits the encounter between them
does yield ethical genuine contestation.
To what extent does law stand in the way of creativity? To what extent should
creativity be limited for the sake of copyright? Jaime Stapleton examines this
question in the light of the significant decrease in production and marketing costs
which has become possible as a result of technological advances and the internet,
occurrences that bear ramification to life more generally by contesting accepted
cultural assumption of the self and of authorship. Stapleton follows and critiques
the notion of art-as-activism grounded in the notion of ‘aesthetic of abundance’ –
the conviction that art is associated with unfettered creativity, one that has ten-
dency to reign freely and to resist any patterned limitation. The premise that art
trumps copyright resists any moral, legal, and political fetters. Thus, abundance,
as opposed to scarcity, becomes associated with freedom and life. In his critique of
abundance Stapleton discusses parallels between it and the now much-criticised
notion that public interest and virtue are generated in true de-legalised and
deregulated free market. The critique also assesses the implications of abundance
to the protection offered to people once copyright fetters are removed and creativ-
ity can flourish. The tension between the welcome potential for politicisation
encapsulated in abundance and the price to be paid for it runs at the heart of the
critique and opens up the debate about the stakes involved in protecting owner-
ship of creativity.
Another aspect to the theme of who owns art is to dwell on how performing it
relates to the moment of creativity of actual authors of works of art be they novel-
ists, poets, painters or composers. This question holds to law too, and the manner
the interpretation of ‘ought’ to be performed. Despite their essential differences,
Thomas Irvine draws parallels to the way the notion of ‘performance’, a
moment of creativity and constraint, has been grasped in musicology and
Jurisprudence. The starting point is no other than Leopold Mozart’s understand-
ing of performance as manifesting musica, that is the musical nature of things,
nature that any peasant naturally knows in just the same way that he knows the
natural rightness of spelling. Performance for him was grounded in Natural Law
 Introduction 25

and natural reason and revelation. In the collective imagination of Arcadia the
‘naturally right’ performance would be intuitively intelligible for all. In tension to
‘natural rules’ Kant and the Romantics, like Schlegel, conceived the notion of
Genius as always performing in a surprising manner destabilising any received
rules and idle conception of naturalness. For them performance would bear this
disruptive aspect and should be conceived as the natural and internal to the work
of art. In the 19th Century, this tension between the outer ‘natural’ and the inher-
ently internally creative nature of genius, led to a new consensual paradigm. The
notion of authorial intention, replaced nature and preserved genius, uniting free-
dom of creator at the moment of creation and constrained subsequent performers of
the work. The tension is now displaced and transformed into whether the text is
actually re-written in the genius of performance or whether there is a constraint of
authorial intention. Irvine draws parallels between performance in constitutional
legal interpretation and musicology regarding the move from nature to authorial
intention and identifies critical calls from within musicology that are inspired by
critical jurisprudence and its call for overcoming such constraints. The chapter
raises the question of performance of a work of art that follows a future encounter
with it – this ‘practice’ of art that constantly invites the re-writing of its saying, and
how this performance compares to the performance in critical legal practice within
which legal materials of statutes and cases are encountered by lawyers and judges
in a future case. Does law self-perform in the same manner, and under the same
constraint, the work of art does? Are these two performances and creativities sub-
ject to the same constraint?
Part Three revolves around the power of the image and its relation to law: the
primacy of the eye for the ‘I’ – the image’s constitutive role of subjectivity both as
domination and for emancipatory critique; its transcending emblematic powers
which involve the tension between symbol and signs; its ability to convey suffering
which is prior to all narratives; and its proven colonial ability to sophisticatedly
assimilate any indigenousness. All contributors testify to the oppressive dimension
of the image and a surplus ‘not’ within it that is capable of responding to the call
of alterity. Costas Douzinas dwells on the evident suspicion with which the
image has been treated by law as a pointer to the irreducible aesthetic aspect of
law. He traces this suspicion to a schism within the constitutive role the image has
to [legal]-subjectivity role which is essentially normative. Encountering images
constitute the very presencing of how beings come to perception, unveiled, through
the image for the subject. The image ‘poses a thing for the subject . . . turns any-
thing into something for someone’. Following Lacan, that, perhaps echoes the
Kantian sublime of the self-grasp by the finite subject of its infinitude (La-kant)
‘the image of the image is an imaginary unity’. This gap, this essential lack, origi-
nary prohibition is constantly mirrored to the subject through images, symbols
and signs, where the truth of the image always already split the subject who expe-
riences it, conditions the subject’s desire to be desired. The gap is where law comes
into being but within which any given law already heralds alterity – resistance to
itself. This gap ‘is always captured by power and influenced by norms, commands
26 Law and art: justice, ethics and aesthetics

and regulations. It is the space inhabited by death masks and imagoes Dei, idols
and icons, authorised and prohibited images, presence and representations. The
history of the capture of this gap is intimately linked with power and law.’ While
the image has liberating forces it also has become epochally regimented and in the
service of the permission and prohibition of dominant power-strategic interven-
tion in the field of vision that Jacques Rancier describes as regimes of visibility: ‘The
first task of every culture is to institute and guarantee regimes of imagistic and
linguistic representation, which both separate and bond words and things and thus
allow the assembly of the biological, social and unconscious dimensions of human
life in the figure of the person (persona in Latin is the mask actors put on stage
during performances).’ The seeing desire of the subject responds to the desire for
other that regulates visibility and for the earlier other that liberates in its impossi-
bility. The image combines both and in between lies its critical political and criti-
cal legal significance. ‘Two basic anthropological functions are therefore at stake
behind the war of images: division, negativity and nothingness on the one hand
and likeness, mimesis and representation on the other. In this sense, the power to
stage representation links the normative structures with the world of forms, relates
politics and aesthetics and supplies the symbolic order with its absent foundation.’
The role of the eye for the ‘I’ in the regime of visibility is always split from the eye
that sees itself seeing. Manifesting always within the domain of the visible for the
perceivedness that characterises the very happening of subjectivity ensures that
‘law remains a deeply aesthetic practice’. ‘The task of legal iconology is to explain
how power and normative systems frame what and how we see, to develop a cri-
tique of regimes of visuality that will complement the critique of ideology.’
Peter Goodrich takes us through the significance of legal emblems which,
through a combination of image and text, bring forth spiritual Jurisdiction into the
Common Law. The hybrid aesthetics of spiritual and the legal in emblems marks
the symbolic source and authority of law and is thereby efficiently transmitted.
Legal emblems constitute ‘the most visible and evident mode of social meaning, of
identity and belonging’. Emblems, and in turn this symbolic transmission of
spiritual origin of the law, one which continues the social bond of identity and
belonging, can be found in every public and private space, public events, national
symbols and flags. Goodrich richly illustrates how emblems convey symbolic
power, hierarchies and thus inclusion, exclusion and marginalisation, thus pre-
serving very forcefully symbolic origin of normative power and do so very sophis-
ticatedly in a way that is more than what immediately meets the eye. As the hidden
spiritual origin of the common law and as measures of its organic normative
nature, emblems serve to transmit its authority and, preserving faith in it. Goodrich
shows us that emblems’ symbolic constancy creates elements that are prone for
exploitation but which can nevertheless not be exhausted by such exploitation.
There is a transmission of symbolic power which goes beyond the symbolic order.
The emblems confirm the origin of authority in a subtle and purely visible way,
symbols that always condition the transmission of the sign, beyond the sign in a way
that can convey the authority in a simple way that does not require texts analysis
 Introduction 27

but in a way that arguably inform the permissibility of horizons of interpretation

within the law. What Derrida referred to as the mystical foundation of authority
of law, one that transcends any given law and thereby preserves the law, is executed
and disseminated very efficiently through the proliferation of emblems. The law
has always something more ancient than is transmitted in the face of any specific
performance of its instantiations. That emblems, images, icons are forbidden in
Judaism presents an interesting quandary that connects Atzmon’s and Goodrich’s
chapters with regard to the origin of authority of law.
What is suffering? How is Suffering? How can an account of suffering be given
without already conditioning and overpowering it? How can the saying of suffer-
ing be conveyed, before expression, before a theme, before any narrative that is
put on it by the law? Can there be an imagery of suffering? Inspired by Levinas’
portrayal of suffering as ‘useless’, ‘meaningless’ – the proximity of the caressing
wholly Otherness, as well as by Benjamin’s notion of ‘the expressionless’, Panu
Minkkinen’s chapter conveys the inexpressibility of suffering through the
image in the work of art. Following the depiction of the theme of the crucifixion
in Matthias Grünewald’s Isenheim Altarpiece (1512–1515), Picasso of the 1930s and
of the 1937 Guernica, as well as Francis Bacon’s crucifixion works in the 1940s, 1960s
and 1980s, Minkkinen argues how images can import the expressionless-ness of
suffering, beyond any narrativity and counter-narrativity that characterises the
law. While law is quite often criticised for not allowing enough narrativity an
engagement with, and contestability of which would critically expose its dominat-
ing core, Grünewald’s work that ‘defocus away from Christian mythology’ brings
forth the suffering that defies narrativity in a manner which influenced Picasso.
Francis Bacon’s reluctance to ascribe any abstraction and generality to his disturb-
ing partially disfigured and disharmonious images of pain and suffering brings the
political message home, namely that putting expression to suffering on behalf
of the Other is already to narrate the suffering. Minkkinen considers Michel Leiris’s
view of beauty grasped as the seed of destruction contained in any ‘beautiful’ totality
and which may be termed ‘harmony of oppositions’. Beauty, justice, ethics conveys
by these images of the crucifixion is the disruption of any narrative that appropri-
ates suffering in the law. For Minkkinen the expressionless connotes Levinasian
pre-ontological alterity, and thus, in a subtle way, the chapter also points to a cri-
tique of the ontology of law which silences the uselessness of suffering. Art emerges
as caesura of the meaninglessness that nevertheless constitutes the agonia, the essence
of the suffering, some radical humanity. The chapter opens for debate the question
of the nature of the political space opened by art’s refusal to law.
Desmond Manderson analyses two iconic pieces that have been deployed
to convey the essence of the Rule of Law. The first image, a proclamation which
was served to the aborigines in 1816 is shown by Manderson to sophisticatedly
cloak assimilating powers of cultural imperialism and sameness behind an appar-
ently simple and ‘natural’ evolution of the principle of equality before the law.
The story of impartiality that the image apparently conveys corresponds to actual
surge of violence against aborigines, one which was fully oblivious to its message
28 Law and art: justice, ethics and aesthetics

and which exposed the supremacist attitudes towards aborigines, despite the best
of intention to bring in the ideal of the Rule of Law. The dark side of the image
was that it justified the invocation of the Rule of Law in a state of emergency that
suspend the very Rule of Law and which violently ‘civilised’ aborigines so that,
once the job was done, they would be able to enjoy the benefit. It is that lack of
sensibilities to cultural difference and in turn, to different substance and manner
of legal expression, argued Manderson, that produces that apparently benign
gesture which in fact did not treat aborigines and their cultural membership
as equally human. At the same time there is something in the image that calls
for yet-unaccounted for universality which the Rule of Law does aspire to evoke
and which Manderson conceives as sustaining difference and incommensurabili-
ties. Echoing Bańkowsky and Del Mar, Manderson argues that the density of
the image readily invites self-deconstruction which would be more difficult with
elaborate textual rationalisations. Images of law intensely convey the danger for,
as well as the actuality of, the Rule of Law to fall into performative contradictions.
By contrast, the second iconic image used to characterise relationship with North
American Settlers – Two-Row Wampum – a belt which shows parallel lines on a
piece of cloth, evokes the notion of empathy whereby togetherness can be valued
through law which constantly challenges of its own sameness and enforces different
and parallel cultural unfolding. Manderson’s piece shows that the use of image
is a very powerful tool to focally bring into expression and hence to possibly
deconstruct the very tensions that are embedded in the Rule of Law thus also helping
to sustain faith in it.
Despite its situational specificity, Kendell Geers’s ‘by any means necessary’
instantly reminded me of pirates – those who sail the unbounded sea, who suddenly
appear, and whose ‘criminality’ and terror can not fail to evoke primordial free-
dom that calls from and yearned for within us – the freedom of mortals’ violent
origin. This work caresses this book as a pointer to that aesthetic moment of freedom
towards which the sublime violent knowledge of techne- comports, comportment
which characterises the uncanniness that pertains to the human condition and its
situatedness in the happening of the due of injustice. Art ethically transgresses any
legal violence. Certainly. However the mystery of the happening of injustice calls
to some form of legal violence to return, inflected, only so that art’s next beginning
can re-turn. An epilogue this piece may well be, but one that has always already
begun as a question mark that thinks back the origin of the tensions encapsulated
in this book – tensions that bind law and art within the violent circles of truth and
power – aluta continua indeed.

Notes
1 See P. Fitzpatrick, Modernism and the Ground of Law, Cambridge: Cambridge University
Press, 2001.
2 See e.g. C. Douzinas, The End of Human Rights, Oxford: Hart Publishing, 2000.
3 See C. Douzinas, Human Rights and Empire: The Political Philosophy of Cosmopolitanism,
London: Routledge-Cavendish, 2007.
 Introduction 29

4 See M. Foucault, Discipline and Punish: The Birth of the Prison, A. Sheridan (trans.),
London: Penguin Books, 1977; History of Sexuality Vol. 1, Robert Hurley (trans.),
London: Penguin Books, 1978; Society Must Be Defended: Lectures at the Collège de
France, 1975–76, D. Macey (trans.), London: Penguin Books, 2003, The Birth of Biopolitics:
Lectures at the Collége de France, 1978–79, G. Burchell (trans.), Basingstoke: Palgrave
Macmillian, 2008; Security, Territory, Popularity: Lectures at the Collége de France, 1977–78,
G. Burchell (trans.), Basingstoke: Palgrave Macmillian, 2007. G. Agamben, Homo
Sacer: Sovereign Power and Bare Life, D. Heller-Roazen (trans.), Stanford: Stanford
University Press, 1995 and State of Exception, Kevin Attell (trans.), Chicago: Chicago
University Press, 2005. See also P. Fitzpatrick and B. Golder, Foucault’s Law, Abingdon:
Routledge, 2008.
5 On the inexpressibility of pain and the pain resulted when it is put into language, see
E. Scarry, The Body in Pain: The Making and Unmaking of the World, Oxford: Oxford
University Press, 1985.
6 See C. Douzinas and L. Nead (eds.), Law and the Image: The Authority of Art and the
Aesthetics of Law, Chicago: The University of Chicago Press, 1999; A. Gearey, Law and
Aesthetics, Oxford: Hart Publishing, 2001; C. Douzinas and Adam Gearey, Critical
Jurisprudence, Oxford: Hart Publishing, 2005.
7 See H. Rappaport, Is there Truth in Art?, Ithaca: Cornell University Press, 1997.
8 Ovid, Metamorphoses, Arthur Golding (trans.), London: Penguin, 2002, pp. 188–9. See
also R. Graves, The Greek Myths, Volume One, London: Penguin, 1990.
9 See e.g. E. Said, Orientalism; Western Conceptions of the Orient, London: Penguin Books,
1985; H.K. Bhabha, The Location of Culture, London: Routledge, 1994.
10 F. Nietzsche, The Birth of Tragedy – Out of the Spirit of Music, S. Whiteside (trans.),
M. Tanner (ed.), London: Penguin, 1993.
11 I. M.Young, Justice and the Politics of Difference, Princeton: Princeton University Press,
1990.
12 See C. Douzinas and Ronnie Warrington, Justice Miscarried: Ethics, Aesthetics and the
Law, New York/London: Harvester Wheatsheaf, 1994.
13 See L. E. Wolcher, Law’s Task: The Tragic Circle of Law, Justice and Human Suffering,
Aldershot: Ashgate, 2008.
14 P. Celan, ‘The Meridian’, in R. Waldrop (trans.), P. Celan’s Collected Prose, Manchester:
Carcanet Publishing, 2003, 38 at p. 39.
15 M. Heidegger, An Introduction to Metaphysics, [1935], R. Manheim (trans.), New
Haven/London: Yale University Press, 1961, pp. 141–68.
16 J. Derrida, ‘Majesties’, in J. Derrida, Sovereignties in Question: The Poetics of Paul Celan,
T. Dutoit and Outi Pasanen (eds.), New York: Fordham University Press, 2005,
pp. 108–34, at pp. 113–4.
17 J. Derrida, Of Hospitality: Anne Dufourmantelle invites Jacques Derrida to Respond,
Rachel Bowlby (trans.), Stanford: Stanford University Press, 2000.
18 Ibid., p. 110.
19 Ibid., pp. 130–3.
20 On the dwelling together and mirroring between mortals and gods, see the excellent
Summary of Herodotus, Pindar and Heraclitus by Hannah Arendt, The Human
Condition [1958], Chicago: Chicago University Press, 1998, pp. 17–19.
Part I

Philosophical reflections
Law between ethics and aesthetics
Chapter 1

Poietic ‘justice’
Krzysztof Ziarek

In the essential realm of the ‘command’ belongs the Roman ‘law’ ius. . . . The
command is the essential ground of domination and of iustum, as understood in
Latin, ‘to-be-in-the-right’ and ‘to have a right.’ Accordingly, iustitia has a wholly
different ground of essence than that of dike-, which essentially unfolds [west] as
-
aletheia
(Heidegger, Parmenides, p. 40, modified)

‘Justice’ in the title of my chapter appears in inverted commas in order to underscore,

specifically with reference to the citation above, the crucial difference of the
‘ground’ from which dike- and justice (iustitia in its original etymological conjoining
with ius [law]) unfold, and therefore come to be thought and ‘practised’ in radi-
cally divergent ways. This difference becomes the site of the ‘crisis’ of ‘justice’,
since justice there is rendered up into deciding (again) between iustitia and dike-,
which means deciding not just between various competing conceptions of justice
(legal or ethical, commutative or distributive, social or ecological, etc.) but, more
radically, deciding as to whether ‘justice’ is to continue to be thought from within
the perspective of iustitia or rather supplanted by poietic ‘justice’ unfolding from
dike-. Such questioning involves, as will become evident later, a dismantling of the
legal and/or moral, and thus, anthropological, underpinnings of ‘justice’ and an
introduction of the notion of poietic ‘justice,’ different so to speak ‘from the ground
up,’ as the epigraph from Heidegger suggests, from legal/moral/religious notions
of justice. The above quotation from Heidegger’s Parmenides points to the inextri-
cable originative entwinement of law and justice with the idea of the necessary
correctness (right: rectus, and in-the-right: iustus) of command and domination.
The power of law and justice is seamlessly co-extensive with the imperial power
of domination and its commands. Being in the right, both law and justice are
imperially correct in their command and claim to dominion/domination.1
The difference between iustitia and dike- points to a wholly different way of
thinking about justice, one which necessitates putting the very term ‘justice’ in
quotation marks, so as to indicate the im-possibility of translating dike- into iustitia and
into the modern vocabulary of justice. The hyphen in this im-possibility indicates
34 Law and art: justice, ethics and aesthetics

at the same time the requisite calling into question of the translation of dike- as
justice and the effort to initiate the possibility of thinking dike- otherwise than jus-
tice, with its legalistic and moral, and even imperial, undercurrents. Hence the
adjective poietic in front of the contested term ‘justice’, which is to signal that nei-
ther law nor ethics, and certainly not imperial power/command, will serve here as
the determining perspectives deciding the nature and the resonance of poietic
‘justice’. Neither the sense of nomos nor of ius, neither the idea of morality nor even
that of ethical relation, when such relation continues to be thought in terms of a
relation to another (human) being, can account for poietic ‘justice’, or, to remain
more faithful to the vectors of thinking proposed here, poietic dike-. This is the case
because both law and ethics operate from within a decidedly and decisively human
or anthropological domain, reinforcing the centrality of the human and making
the human–other (human or non-human) relation not just the focus but in fact the
pivot of their exercise. It would require a separate essay to probe the extent to
which this anthropological domain, in fact its grounding conception of ‘man’ as
human, constitutes in essence an imperial domain, in which anthropos becomes con-
scripted, as the necessary pivot, into the overall imperial command of technicity—
the planetary reach of Machenschaft or manipulative power, as Heidegger diagnoses
it in the late 1930s.2 The strangeness of the formulations poietic ‘justice’ or poietic
dike- is meant at least to mark off initially this divergence from thinking justice
through the often conjoined anthropocentric prisms of law and ethics, and thus to
place up front the necessity of thinking poietic ‘justice’ originatively by way of the
relation to being, and therefore apart from the imperial nature of the claim to
‘being in the right’, apart from both its correctness and its sense of being justified.
To put it very briefly, if justice and law originate from human relations, primarily
to other humans but often involving other beings as well, whether as property or
as coexistent life forms in the global environment, poietic ‘justice’ marks a differ-
ent starting point for thinking justice and law: being’s relation to the human, which
remains ungraspable in terms of power, command, or law. This means that the
anthropocentric optics of law and ethics, with their tendency toward imperial
reach and the penchant for correctness, come to be enveloped here within the
poietic resonance of being-to-human relation and its different, non-anthropological
tenor. This new tenor calls into question the self-assumed centrality of the human
in ethics and law, in the end perhaps giving a new valence to terms such as ‘justice’
(as poietic dike-) and ethics (as e-thos, originary ethics as dwelling, that is, as responsive
and responsible being-in-the-world).
As Oren Ben-Dor explains, much of the debate about the problematic of
justice, especially within the discipline of law, has been caught up in working out
the difference between legal, or legalistic, justice and ethical/moral justice.3 Yet
both legal and ethical approaches to justice, notwithstanding their differences,
remain caught up in the anthropological perspective, making the human—
whether the individual or the subject, on the one hand, or the (radically) other, on
the other, is less pertinent here—the center of their speculation. Even the
Levinasian ethical contestation of justice and law, which pivots on the radical
 Poietic ‘justice’ 35

alterity of the (human) other, maintains the human—albeit the other and no
longer the ‘subject’—as the center of thought’s gravity. Levinas’s grave and incon-
testably just accusations of philosophy tip thinking toward the alterity of the other,
thus giving the very notion of alterity the pull of a being. Even if one broadens the
scope of Levinas’s thought and includes other others, e.g. animals, as part of the
ethical vectoring of contemporary thought, it can be argued that such an ‘ontic’
approach still orients itself decisively toward a thinking of beings, human and non-
human, thus continuing to rivet the thought of ethics and justice to the anthropo-
centric, and metaphysical, optics of ‘beings’, perhaps unintentionally bringing
with it a trace of the imperial.4 In this context, it is not at all surprising that Levinas
insists on calling his thinking metaphysical, as it indeed (re)instates at the center of
attention the other (human) being. Vectoring ethics to a being, Levinas’s thought,
while radically displacing and critiquing the metaphysics of the subject, develops
a metaphysics of the other, or, more precisely, the metaphysics of the desire toward
the absolutely other: ‘The metaphysical desire tends toward something else entirely,
toward the absolutely other.’5 This metaphysics is then said to precede any and all
ontology, which makes any reflection on world, being, or history, necessarily
secondary to and ineluctably distortive of the originary relation to radical alterity,
always already excessive in relation to moral, legal, ontological, or cognitive
bonds.6
By contrast, the term poietic suggests that the problematic of ‘justice’/dike-
needs to be questioned from the perspective of poie-sis, art, and language, in order
to think through a measure different from either the measure of legal normativity
or from the ethical (im)measure of absolute alterity. Instead of being originally
vectored toward a being in ‘his’ alterity, the poietic measure unfolds from the
event, whose uniqueness and one-timeness, as Heidegger remarks, make possible
and enforce otherness:

Holding sway in terms of the not, it [be-ing {Seyn}] makes possible and enforces otherness
[Andersheit] at the same time.
But whence comes the utmost confinement to the one and the other and thus to the either or?
The uniqueness of the not that belongs to be-ing and thereby the uniqueness of the other fol-
lows from the uniqueness of be-ing.7

The alterity of any ‘other’ (being), including the absolute alterity of the other
human, is given within the otherness of this other time-space of the event, which
happens always as singular (einzig) and one-time (einmalig). The time-space-play of
the event is given poietically, that is, in each instance (Augenblick) originatively as
each time one-time and unique, unrepeatable in its event-singularity. It is this
originative silent force of the possible that makes possible and enforces otherness:
no other, no alterity and no difference, without this nihilating force of possibilization.
Poietic ‘justice’ follows the critical impetus of Heidegger’s proleptic retrieval of
dike- in its Heraclitean sense, which Charles Bambach sees as offering ‘a way of
dismantling the Western edifice of ethics by rethinking ‘‘justice’’ as the very structure
36 Law and art: justice, ethics and aesthetics

of being within and against which all beings are measured. In this non-juridical,
non-ethical reading of justice we will need to think of justice as that which joins all
beings together in a peculiar jointure, the jointure of adjustment where mortals
and gods adjust themselves to a justice above their ken.’8 I would add here, with
reference to the citation above from Contributions to Philosophy, that this jointure
(Fuge) is not a set structure but is given as the event, each moment into the singularity
and one-timeness of its time-space-play (Zeit-Spiel-Raum).
Poietic dike- receives its measure by and from language, though language
thought no longer in terms of the play of signification but originatively, i.e. poietic-
ally, as the way-making into words. Its measure is thus given through the poietic
register of language, as the mortal and finite scansion of dwelling, silently ‘said’ in
language. To the extent that attentiveness to this poietic register (Dichtung) marks
especially the ‘language’ of arts, and perhaps most intensely poetic writing in
particular, I draw in this context on Heidegger’s reflection on language and its
way-making (Bewëgung) through the prism of poetic dwelling (e-thos). I take as the
point of departure Heidegger’s thought of the fourfold, and in particular its dis-
placement of the human from the position of centrality to the role of a participant
in a nexus of relations constitutive of the world. The primary determination of the
human in this context is neither the notion of the subject nor that of the other’s
alterity, but instead that of mortality and the perspective it opens onto being.
Mortality becomes the measure of the place and relations of the mortals, always
thought by Heidegger as a plural, within the world. This poetic measure of the
mortals’ dwelling discloses itself precisely in art, specifically in the poetic event of
the world opened up in the artwork. Drawing out the unsaid from the lines of
Hölderlin’s poems, Heidegger attempts to think such measure in a way that would
reflect the mortal dwelling, which unfolds essentially as poietic. ‘Measure-taking is
no science. Measure-taking gauges the between, which brings the two, heaven and
earth, to one another. This measure-taking has its own metron, and thus its own
metric.’9 This poietic measuring is an attentive reservedness (Verhaltenheit), which
‘does not consist in clutching or any other kind of grasping, but rather in a letting
come of what has been dealt out.’10 This attentiveness is never simply a passive
reception of a dictate, even though it necessarily involves a listening and an atten-
tiveness to silence, which belongs to (ge-hört), tunes itself into the Stimmung accord-
ing to which the event metes and is meted out. The most important and difficult
aspect of the measuring Heidegger traces in Dichtung is its tonality of letting (lassen),
a complex ‘middle voice’ attentiveness, neither passive nor actively taking charge,
neither inertly receiving nor forcefully making happen. The poet does not make
the dwelling into its poietic character and yet this dwelling would not unfold as
such without the poet’s attentiveness, which brings language into words, into the
poem, and thus allows the dwelling to unfold and the dimensioning of the play of
time-space to be meted out poietically. Poietic measuring is the letting, which lets
unfold what is being dealt out, what is meted out from the event: ‘the phrase
‘‘poetically man dwells’’ says: poetry first lets [lässt] dwelling be dwelling. Poetry
[Dichten: the poietic] is the proper letting-dwell [das eigentliche Wohnenlassen].’11
 Poietic ‘justice’ 37

On the surface, nothing seems easier than this letting, but only if such letting is
misunderstood as passive acceptance, which simply permits and consents to,
instead of opening up an encounter and adjusting its parameters. The difficulty
here is that poietic measuring has no standard and cannot have one, as its relation-
ality is given each time singularly by the play of the event’s time-space and, there-
fore, preserves an element of the unknown. Other ways of measuring proceed
through grasping something unknown through an established standard, which
quantifying the unknown makes it known.12 By contrast, the poietic measure
which Heidegger tries to tease out of Hölderlin’s poetry orients itself specifically
toward the unknown: ‘for Hölderlin God, as the one who he is, is unknown and it
is just as this Unknown One that he is the measure for the poet.’13 This sense of the
unknown has to be differentiated, however, from the simple absence of knowledge,
and needs to be thought instead in the sense of concealment, of le-the, intrinsic to
unconcealment. As is well known, concealment for Heidegger is nothing negative,
and it does not stand for the negation of unconcealment. As he puts it in ‘The
Origin of the Work of Art’, ‘truth in its essential unfolding is untruth’14 which
means that the pseudos not only belongs to ale-theia but in fact constitutes part of its
essential momentum. The momentum of truth is not toward the elimination of the
pseudos, or toward the negation of the negative, but instead toward outlining the
play of pseudos within ale-theia, of the concealed (unknown) within unconcealment.
It is thus quite distinctive from the measurement of the unknown by the standard
of the known. Poietic measuring is not about rectifying the absence of knowledge
but instead about allowing the concealed the dimension proper to its manifestation
as concealed within the span of unconcealment: ‘God’s appearance through the
sky consists in disclosing that lets us see what conceals itself, but lets us see it not by
seeking to wrest what is concealed out of its concealedness, but only by guarding
the concealed in its self-concealment. Thus the unknown god appears as the
unknown by way of the sky’s manifestness. This appearance is the measure against
which man measures himself.’15 The seeing which measures in known and grasp-
able standards regards the unknown negatively as what has to be overcome in a
rush to render it known, to reduce it to a knowable data, quantity, or measure-
ment. The mission of such measuring is to find a way or to invent a standard
which would allow for what remains unknown to be translated into the terms of
knowing. The difficulty of the poietic measure resides by contrast in the need to
not only endure the concealed but specifically to let it be, that is, to reshape think-
ing and acting in a way that would allow the concealed the proper span of its play,
its own dimension of time-space: ‘Because man is, in his enduring the dimension,
his being must now and again be measured out. That requires a measure which
involves at once the whole dimension in one. To discern this measure, to gauge it
as the measure, and to accept it as the measure, means for the poet to make poetry
(dichten). Poetry is this measure-taking—its taking, indeed, for the dwelling of man.’16
To measure poietically means to endure the dimension, that is, the continuous
interplay of the fourfold (earth, sky, mortals, divinities), in other words, to stay the
world in the complex one-time (einmalig) relatedness, neither one nor simply many,
38 Law and art: justice, ethics and aesthetics

neither known nor simply unknown, of the time-space-play of the event. There are
no ready-made standards for enduring this meting out of the world, and no meas-
ures that could be invented. There are only ways of orienting, the complexities of
the spatio-temporal strife of the concealed and unconcealment, and the poetic
listening out into the silences of language for the tonality (Stimmung) in which the
event would be let be and could be poietically endured in its futural momentum,
though always only singularly and one time. This poietic measure is meted out as
language’s way to words, and as such, has to be traced by way of attending to what
silently guides words and breaks open tracks for signification. Hence the key
importance here of poetry; not simply as a literary genre, as a way of writing verse,
but as the ability to listen, in and with language, to language, to endure its silences
and to allow silence’s span to register, along with words, that tonality in which the
world is meted out each time singularly into the time-space-play. Such listening
and enduring take the measure of the poietic dwelling, that is, of the otherness of
what in Contributions to Philosophy, is called ‘another time-space:’

The truth of be-ing [Seyn], which is to be opened up, will bring nothing other
than the more originative essential unfolding of be-ing itself. And this means that
everything is transformed and that the walkaways that still led to be-ing must
be broken off, because another time-space is enopened by be-ing itself, which
time-space makes a new erecting and grounding of beings necessary.17

Thus another time-space is precisely the time-space in which the possible ‘holds
sway’18 and with its silent force transforms everything, holding it open to the
futural momentum of the play of time-space and thus shedding the customary
relations of power, which keep beings, human and non-human alike, to their
forms of knowledge and relationality. As Heidegger aptly suggests, the possible
in its sway shocks us with the ‘gentleness of the awesome’19 and does so because
this other time-space is macht-los: released, free from power and its productive
and dominating machinations. This otherness of the each time singular and one
time unfolding of time-space metes out the measure for how to relate to what
exists. It gives the measure, ‘unknown’ in the sense that it holds itself attentively
toward the silent force of the possible, to what becomes possible, to how the
jointure of the four in the event of its time-space-play gives always one-time and
singularly.
This each time singular jointure is the poietic measure which makes possible
and enforces otherness. Ethics, law, and justice become possible in the poietic
sway of the event. One could say then that the face of the other (de)signifies ethic-
ally only because its manifestation occurs within the poietic e-thos. Differently put,
the other can be other, and this alterity can have an ethical resonance, because the
other manifests always already etho-poietically, within the fold of poietic dwelling.
In fact, the other’s alterity leaves a trace which can be heeded only when the world
is allowed to unfold poietically. To mark and remark the alterity of any being, this
being needs to let be etho-poietically, to let dwell in its each time unique and only
 Poietic ‘justice’ 39

one time pulsing of existence. No ethics without the pulsation of es gibt, without the
rhythm of dwelling and its strange and concealing poietic metric. This poietic
metric is the letting come of the meting out of the dimension of dwelling, in the
singularity of its one-time pulsing, or quivering, of giving. The ethics of the face no
doubt torques poietic dwelling but it neither displaces nor replaces it. It does not
come on its own, as it were, but leaves its trace (Spur) within the hint or intimation
(Wink) of the other time-space of being. It has a radical ethical resonance because
the giving of the event lets the other signify singularly: ‘Being makes possible and
enforces otherness.’
Though the poietic measure has no standard and no metron in the strict sense, it
has its own (eigen) tonality and orientation: its tonality (Stimmung) is that of the
power-free—‘the gentleness of the awesome’ or ‘the gentle bind’ (milde Bindung)20—
and its span and momentum are given to it by mortality. Mortality not conceived
as the inevitable end of human life but as being-towards-death, which renders
humans uniquely capable of experiencing the play of the event’s time-space, and
thus also uniquely capable of language. To be mortal means to be capable of
attending to this each time singularly self-withdrawing event, to the each time
unique contours of its silence in the play of the concealed and unconcealment.
Mortality does not mean dying but being capable of death, which gives the measure
to each moment and, when allowed its proper resonance, lets mortals be uniquely
attentive to the nothing inherent in the unfolding of being. The nothing in question
is not absence or negation of being but rather the nihilating momentum intrinsic
to the futural unfolding of the event. Being capable of death lets mortals dwell,
each time singularly, in the ebb and the while of each moment, lets them be on
occasion tuned to the nothing which allows being to unfold, each time with the
possibility of ending and thus each time unique, one-time awhile. In other words, to
be mortal means to be attuned to the silent force of the possible, allowing this force
its singular (einzig) and one time (einmalig) silent and finite resonance of possibilities.
Poietic measure thus spells out a peculiar jointure of the nothing in being, of the
nothinging of the nothing, and the distinctiveness of the mortals lies in the fact
that they can be the placeholders of the rifting of this jointure: ‘The human is the
placeholder of the nothing.’ (Heidegger 2003: 63) This jointure marks specifically
the sense of dike-, which Heidegger resonates out of the cryptic and self-silencing
sayings of Heraclitus. This dike- is a kind of ‘justice’ not dictated by laws, whether
divine (monotheistic or Greek) nor by the laws of man, the distinction often dis-
cussed in reference to Antigone or Oedipus,21 but rather is given, let be, by the
needfulness of being, signaled by Anaximander in the Greek khre and rendered by
Heidegger as brauchen.22 Justice, therefore, has everything to do with art’s poietic
event of disclosure, that is, with the way in which the artwork, as Heidegger points
out in ‘The Origin of the Work of Art,’ suspends the usual ways of acting, perceiving,
knowing, and valuing.23 Allowing us to experience the temporality of this suspen-
sion and displacement, the artwork opens up being as the historical-temporal
event of finitude: the poietic measure of mortal dwelling. Justice then is always
already poietic justice, always ‘in question’ as a certain mode of being, free of power
40 Law and art: justice, ethics and aesthetics

and dominance. Justice for beings, non-human and human, comes as part and
parcel of the power-free, poietic way of world’s being.
The measure of such ‘justice’ is poietic in the sense, or rather, in the scansion,
elaborated above. Poietic ‘justice’ is therefore the justice of ethos, which is not
simply ethical justice, i.e., justice in-formed by ethics conceived as exposure to
alterity. It is also not to be confused with iustitia, which is a legal, moral, and
political term. Dike- by contrast, would have to be listened to as ontological, as of
being. This is why poietic ‘justice’ indicated in the title of this chapter can be
explained in the context of Heidegger’s ‘Anaximander’s Saying’ as giving the
measure of how beings are given to the while of their presencing (and absencing)
through the order/disorder out of the jointure of disjointure. Poietic ‘justice’ is the
measure of the joining and disjoining among beings in their each-time-a-while
presencing from out of and back into absence, the joinining of the disjoining
of un-concealment. In this context, dike- is thought in terms of the respect for and
the justness of finite temporality, as the order (Fug) of the while, which is obscured
and covered over by the tendency of beings toward continuance, constancy, or
permanence:

According to the saying, αυ' τ α' (τ α' ε ο' ντα), the things that stay awhile in pres-
ence, stand in dis-order (Un-fug). As they while, they tarry. . . . When the things
that stay awhile hang on, they stubbornly follow the inclination to persist in
such hanging on, indeed to insist on it. They are concerned with permanent
continuance and no longer look to the δ ι' κη, the order of the while.24

Dike- is possible only as the ‘fit’ of the while, or, more precisely, as the dike- of the
possible opened up through the transitoriness of the while. Presence and constancy
(of identity, beingness, possession, etc.) are marks of dis-order, or Un-fug, foreclosing
the possible radiating from the always transitory while and thus foreclosing ‘justice’
in the sense of dike-. Any sense of what may be fitting, and befitting (justice in the
sense of Gerechtigkeit) comes out of this (dis)joining play of Fug and Un-fug. Thus dike-
as poietic ‘justice’ makes possible justice in the sense of fittingness and in turn this
Gerechtingkeit can be articulated, however imperfectly, into law: into legal measures,
prescriptions, and prohibitions.25 Each step, if this can be conceived as a kind of
simultaneous sequence, involves a loss of hearing, a decreased ability to listen to and
allow silence, the ability to listen which gets traded in for the enhanced capacity to
conceive, grasp, articulate, set in stone, and correct. For poietic ‘justice’ is never a
command or a law but the poietic jointure, giving the measure of joining and
disjoining of presence and absence, to which justice and law should belong and
listen (ge-hören), and after which they should phrase their sayings.
In a sense, the poietic dike- constitutes the measure of temporality in its finite,
mortal dimensionality, and as such is neither divine nor simply human. Rather, it
is only given to humans to pay attention to and heed in how they may construe
their legal idea of justice. To be just, justice needs to obey no commandment but
rather shelter the poietic measure of temporality, the fitting and unfitting jointure
 Poietic ‘justice’ 41

of each time one time and singular while of presence. In this sense, poietic ‘justice’
is the measure of the nothing, or of the nihilation, understood as the scansion of
presencing and absencing, that is, as the enjoining of presence out of and back into
absence: the finite beat of temporality, never ‘fully’ or abidingly present, only dis-
jointed into the idea of ‘permanence’ or metaphysical notions of presence.
Nihilation is not only nothing ‘negative’ (in the sense of the denial or negation of
presence) but in fact the singularly proper (einzigste) giving of being to its possibilities.
Nihilation is the silent force of the possible, troping the opening out of the while of
the ‘present’ onto the possibilities extending into the future from the foreclosing
possibilities that have been (‘the past’). It is precisely in this sense of this silent force
unfolding the possible, that nihilation is poietic. Nihilation is the poietic ‘justice’,
that is, the poietic jointure, of being. Poietic ‘justice’ is the measure of the reck
(Ruch), of the reciprocally considerate letting be, that is, letting beings, ‘what comes
to be’ (anwest), while in its proper possibilities to be. By letting what comes to be
‘awhile’ fittingly, one lets oneself be in one’s possibilities. In this way, what is let be
is the jointure of being in its temporal scansion, the ‘whiling’, of each time singular
presencing out of/into absence.
Otherness and difference come by way of and out of the poietic jointure of
being. They can be let be and let unfold as other only from the each time singular
jointure of their a-while, given to them precisely by way of nihilation, that silent
force of the possible, whose scansion is the ebbing in and away of presence. In
short, there is (es gibt) no otherness, difference, or justice, and obviously, no law,
without nihilation. Justice or law given without proper heed and openness to the
force of the possible is a disjointed justice or law, law without reck, without heed
given to how it gives there to be—an un-just justice. It is reck-less law.
Justice or law trying to base itself in any sense of ‘presence’: abiding, standing,
substantive, permanent, and thus predicating rights connected to a substantive
sense of presence, say, the subject of rights, loses and covers over the poietic measure
of dike-. Similarly, justice appealing to any sense of transcendence or sovereignty
beyond the giving of the play of time-space, also distorts and covers over the finite
scansion of being. Transcendent or sovereign justice become inevitably un-just
and reck-less justice, as they operate without heed to how the each time absent
presence has always already joined to the presencing presence and is joining for-
ward to the not yet present (future) presence. Justice can only be just when it listens
to and minds the always singular poietic beat of time; or at least does not allow the
looming presence of the present to obscure and negate the transient scansion of
being and its force of the possible. Poietic ‘justice’ is the singular, always only one-
time (einmalig) Fug of the while in its play of the possible. Legal justice remains blind
precisely to this force of the possible, to the each time singularly scaled jointure of
the while of presence.
Language and poetry shelter this each time unique giving of being as the
possible in the silence and the unsaid, which come to be said alongside words.
Heidegger finds this singular resonance, for instance, in Anaximander’s to khreon,
which does not connote compulsion or necessity, but rather the way in which the
42 Law and art: justice, ethics and aesthetics

one-fold of being/beings is also an in-fold (Ein-falt) as a singular relation to the

nihilation intrinsic to presencing; singular in the sense of being in each time singu-
lar (einzig) and one time (einmalig). ‘The relation to what is present that prevails in
the essence of presencing is singular. It is comparable with no other relation. It
belongs to the singularity of being itself (Einzigkeit). In order to name the essence of
being, therefore, language would have to find a singular, the singular word [das
einzige Wort].’26 This singular word is, however, not the unique word in the sense
of the one and only word, a supra-word, as Derrida mistakenly suggests in
‘Différance,’ associating it with the ‘hope’ for the unique name: ‘Nevertheless I am
venturing it, without excluding any of its implications, and I relate it to what still
seems to me to be the metaphysical part of “The Anaximander Fragment’’: the
quest for the proper word and the unique name.’27 Das einzige Wort is not the
unique name but rather the word—possibly each and any word, when properly
attended and listened to—as each time singular in how it gives to be. It is not
the unique name (for being) but a poietic word, which originatively, each time
singularly, gives being into language. The unique name for being would be a
word ‘in-the-right’, an imperial word, both correct (rectus) and just (iustus), a word
operating as law (ius), whether legal or ethical, and thus covering over the each
time singularly silent dike-, the jointure (Fuge) of the event. For at issue here is not
the unique word for being, a word which would conceive and thus capture being
(as in the Latin capere), but the poietically singular way in which always only one
time being is given, as the way of language, to what exists in the other space-time
of the event. This poietic way of language is also the Rätsel des Seins, the enigma of
being: not the secret, unique name, which would unveil/veil the enigma but the
hint of the Ein-zigkeit/maligkeit. ‘Then thinking must poetize on the enigma of being.
It brings the dawn of thought into proximity to that which is to be thought.’28
The definite article, das/the, which Heidegger places in front of what might
perhaps be best rendered as ‘the one-time word’, marks here not the generic reson-
ance of a word which would always already and proleptically capture being and
say, by way of veiling, each time the same, but points instead to the singularly one-
time giving of the word, of words that, even though repeating the same signifying
chain of letters, are each time singularly and only one time, and therefore are
marked by the definite article ‘the’. This ‘the’ is not the generic but the singular
‘the’; not the singular generic of the unique name (‘being’: the word) but a non-
generic, one-time singular ‘the’, with the silent resonance of the ein. In other words,
the definite article gives voice to the silent—because each time only one time and
in this sense singular—giving of being in(to) this word. I propose to read this silent
resonance of ein as indicating the each time singular way in which being gives
in(to) words, and thus outlines the poietic measure of dike-. Indicating therefore a
difficult task for words to each time resonate singularly, despite the repetitive
nature of signs and signification; a poietic task for words and language to each
time think and let say the silence that marks words, each time singularly and in a
flash of way-making, despite the necessary repetitiveness of meaning. A word which
each time lets the jointure of the event abide, stay its while, singularly and always
 Poietic ‘justice’ 43

one time only: and thus a word which each time is the singular word. This letting
a-while is the poietic measure, the dike-, the ‘justice’ of being in its mortal and finite
spanning of the time-space-play. Quite distinct from legal and ethical senses of
justice, this ‘justice’ is eminently poietic, calling for a measure which displaces and
decisively reorients the debates about justice.

Notes
1 William V. Spanos elaborates on some political implications of Heidegger’s linking of
the philosophical vocabulary of knowing (concept, conceive, perception, capture) with
the imperial realm of law and command, ‘establishing the essential complicity of Roman
metaphysics and imperialism’ (100), in his essay ‘Heidegger’s Parmenides: Greek
Modernity and the Classical Legacy,’ Journal of Modern Greek Studies, 19, (2001), 89–115.
2 It is again Spanos who underscores Heidegger’s point about the Roman character of
the notion of humanitas and its inscription of Greek paideia in the service of the imperial
ambitions of power/knowledge, speaking of the ‘anthropological and imperialist reading’
of Greek thought by the Romans; see ibid., pp. 93–94.
3 For this discussion see O. Ben-Dor’s book Thinking about Law In Silence with Heidegger,
Oxford and Portland, Oregon: Hart Publishing, 2007, and especially its ‘Introduction.’
4 This issue becomes poignant especially in view of Heidegger’s linking of humanism to
the imperial domain of command and, in other contexts, to its essentially onto-theo-
logical grasp of being by way of beings. It is interesting in this context to recall that
Levinas’s rethinking of humanism as ‘the humanism of the other man’ explicitly anchors
its critical project in the notion of the human being as intrinsically marked by an alterity,
whose resonance is precisely theo-logical: ‘This inwardness is an obedience to a unique
value without anti-value, which it is impossible to escape, but which, “akin” to the subject,
is neither chosen nor not-chosen. . . . This value is, by an abuse of language, named. It is
named God.’ E. Levinas, Collected Philosophical Papers, A. Lingis (trans.), The Hague:
Martinus Nijhoff Publishers, 1987, p. 136. The human is thus seen as marked by a
uniquely transcendent value, a trans-value, as it were, which is essentially theo-logical,
that is, God-naming, even if only by an abuse of language. Though this naming of God
as a unique trans-value is intrinsically abusive and distortive of the absolute alterity it
attempts to trace, does the switching of the center of gravity from the subject (‘the same’)
to the other, from the humanism of the subject to the humanism of the other (hu)man,
avoid carrying with it, however minimally and unintentionally, the vestige of the imperial-
ism of the human, of the theo-logical domain and its command? What would be required
is a careful reading of the difference and/or contamination between the imperial com-
mand (of humanism and theo-logy) and the command of the other, which motivates
Levinasian ethics. Is the inescapable command as well as the height and alterity of the
other in their radically ethical resonance still a form of power which, as Totality and Infinity
proposes, undoes my power to have any power?; and how is this ‘power’ or ‘force’ of
alterity different from the imperial command to be in-the-right? While this is evidently
not the case in the intent of Levinas’s ethics, its idiom of humanism, anthropocentrism,
command, and theo-logy needs nevertheless to be critically interrogated on these
counts.
5 E. Levinas, Totality and Infinity, A. Lingis (trans.), Pittsburgh: Duquesne University Press,
1969, p. 33.
6 In Thinking About Law, Ben-Dor argues that Levinasian transcendence ends up ‘legalizing’
ethics and morality, which covers over the poetic dwelling: ‘The legalization of ethics and
morality, as entrenched by Levinasian transcendence, seem to successfully take humans
away from their essence, the essence of poetically dwelling together in the mystery.’
44 Law and art: justice, ethics and aesthetics

(p. 403) ‘Levinas’s thought constitutes the most radical ontic transcendence but it takes
us back to the deepest origins of error’ (p. 404), that is, deeper into the forgetfulness of
being. As Ben-Dor adds, ‘The legal nature of Levinas is that he pretends, inhumanely,
to go beyond interpretation, beyond intentionality, beyond desiring the mystery. Levinas
legalizes that very desire.’ (p. 405)
7 M. Heidegger, Contributions to Philosophy (From Enowning), P. Emad and K. Maly (trans.),
Bloomington and Indianapolis: Indiana University Press, 1999, p. 188.
8 C. Bambach, ‘Translating ‘‘Justice’’: Heraclitus Between Heidegger and Nietzsche,’
Philosophy Today, 50, 2006, 143.
9 M. Heidegger, ‘. . . Poetically Man Dwells . . .’ in M. Heidegger, Poetry, Language, Thought,
A. Hofstadter (trans.), San Francisco: Harper & Row, 1971, pp. 211–27, at p. 219.
10 Ibid., p. 222.
11 Ibid., p. 213, modified.
12 Ibid., p. 222.
13 Ibid., p. 220.
14 Heidegger, ‘The Origin of the Work of Art,’ Poetry, Language, Thought, op. cit., p. 53,
modified.
15 Heidegger, ‘. . . Poetically Man Dwells . . .,’ op cit., pp. 220–1.
16 Ibid., p. 221.
17 Heidegger, Contributions, op cit., p. 334.
18 Ibid.
19 Ibid.
20 M. Heidegger, Die Geschichte des Seyns, Gesamtausgabe vol. 69, Frankfurt am Main: Vittorio
Klostermann, 1998, p. 69.
21 Bambach suggests that it is dike- ‘that is lost on Antigone, Creon, and Oedipus as well
as on the later technicians of planetary Machenschaft,’ Bambach, ‘Translating ‘Justice,’
op cit., p. 153.
22 See M. Heidegger, Four Seminars, A. Mitchell and F. Raffoul (trans.), Bloomington and
Indianapolis: Indiana University Press, 2003, p. 63. The place holder for the nothing is
also discussed in ‘Anaximander’s Saying’: ‘. . . he can become the shepherd of being
only if he remains the place-holder for the Nothing. Both are the same. Man can do
both only within the dis-closedness [Ent-schlossenheit] of Da-sein [being-there].’ Heidegger,
Off the Beaten Track, J. Young and K. Haynes (trans.), Cambridge: Cambridge University
Press, 2002, p. 262.
23 M. Heidegger, ‘The Origin of The Work of Art,’ Poetry, Language, Thought, op cit., pp. 17–86,
at p. 64.
24 Heidegger, Off the Beaten Track, op cit., p. 270.
25 As David Michael Kleinberg-Levin remarks, ‘For Heidegger, Anaximander’s Δι'κη is
an archaic name for being. Thus, justice in the moral-juridical sense is an expression, a
derivative, of ontology.’ Kleinberg-Levin, ‘The Court of Justice: Heidegger’s Reflections
on Anaximander,’ Research in Phenomenology, 37, 2007, 386.
26 Heidegger, Off the Beaten Track, p. 276.
27 J. Derrida, ‘Différance’ in Margins of Philosophy, A. Bass (trans.), Chicago: University of
Chicago Press, 1982, p. 27.
28 Heidegger, Off the Beaten Track, op cit., p. 281.
Chapter 2

Repetition
Or the awnings of justice
Andreas Philippopoulos-Mihalopoulos

Again and again

De Chirico produced more than one hundred almost identical canvases, roughly
categorised under the Piazza d’Italia series. He began in 1912–13 with the Ariadne
paintings (namely a piazza with a reclining statue of Ariadne) and continued
over a period of fifty years with increasing intensity towards the end of his career.
All the paintings depict typical Italian piazzas that nevertheless break up in incom-
patible perspectives:1 the arches flanking the piazza end up in different vanishing
points; the awnings are repeated endlessly yet incongruously with the edifice;
Ariadne looks as if seen from above; the figures in the background float about
unconnected to the rest of the piazza; the edges of a city stop abruptly and give
way to a collapsing sky. The paintings are characterised by a compulsive repeti-
tion of the same elements, volumes, perspectives, whose difference can only be
appreciated in the rare occasions when a group of them is shown together – rare
because the whole series has often been rejected by art theory as the embarrassing
downfall of the founder of the metaphysical school of painting and of the Surrealist
movement more broadly.2
Indeed, de Chirico’s repetitive production is still dismissed as either a money-
making spin (which it was); a strategic turning against the Surrealist movement
(which it also was – his earlier paintings have been co-opted by the Surrealists as
foundational of their movement despite de Chirico’s refusal); a manifest indication
that ‘de Chirico has lost his genius’;3 or a self-destructive gesture (which may have
been) that took the form of ante-dating, falsification, deliberate confusion as to
the authorship and other tricks that at the same time both devalued the original
paintings of his metaphysical period (by that time extremely valuable pieces in the
hands of dealers dealing in Surrealist art) and hyped the value of his later produc-
tion. There is, for example, this extraordinary anecdote on de Chirico’s response
to Mrs Eluard’s request to buy a couple of already-sold paintings: ‘. . . if you wish
exact replicas of these two paintings, I make them for you for one thousand Italian
lire each.’4 The anecdote neither denies nor privileges any of the above.
Having been influenced by Nietzsche’s The Birth of Tragedy and at the same time
attempting to put into practice the idea that infinite variations can be produced
46 Law and art: justice, ethics and aesthetics

from a limited set of tools, de Chirico simultaneously annuls and reinstates his
own production by generating almost identical copies. De Chirico himself has
talked about his paintings as ‘extremely exact variations’.5 Through repetition,
each new copy confounds its origin and originality, while at the same time making
the whole style unmistakably ‘original’ and readily recognisable. In other words,
just like Nietzschean rebirth, de Chirico’s repetition does not produce identity but
difference. De Chirico’s own repeating, ante-dating, confounding performances
produced an innumerable (in its real rather than metaphorical sense) amount of
repeated Piazza d’Italia paintings, created by different painters who signed them as
de Chirico. I myself have been involved with a de Chirico painting for the cover
of one of my books, acquired through the perfectly legitimate route of an image
data bank. The painter’s estate refused permission to use it because the chosen
painting was simply not by de Chirico (as far as they knew anyway). The book had
to be withdrawn and a different (but same) copy was produced instead.
In what follows, I posit that repetition can produce difference by remaining
repetition. This is relevant both in terms of art and law. In art theory, repetition
has been exculpated from its pathological affiliations and rendered a staple of
postmodernism through Andy Warhol’s silk-screening (also applied to de Chirico’s
work6) and Jean Baudrillard’s simulacra. In legal theory, however, repetition is
thought, if at all, in the form of precedent or in the traditional definition of justice
where like cases are decided alike. Repetition, however, characterises the whole
of the legal edifice, which, as I argue below, is capable of producing difference in
the form of justice. This in its turn is linked to law’s ‘awnings’, namely the open
space of the arches that at the same time support the legal edifice and allow for a
piece of the horizon to gleam through. In this respect at least,7 art and law can be
put on the same footing.
De Chirico’s Piazza d’Italia series confounds the limits between repetition as
mechanic, made-to-order replication, and repetition as the generation of what
de Chirico would call an ‘enigmatic’ difference. There is a movement, from the
repetition of the same (or indeed of an extremely exact different) to the acknow-
ledgement of difference as whole but without relinquishing the act of repetition,
without attempting to produce something other, ‘new’. The same crossing can be
observed in the theoretical construction that I would like to put forth: namely, that
the movement from law to justice is possible only by delving deeper into law’s
repetition. This crossing is more static than moving. Law remains law, while
‘becoming-tautologous’ with justice. Yet, law is just only when law’s repetition
produces difference. If law, therefore, is the hypnotic mundanity of repetitive
norm application and the superimposition of norms to facts (and this is a vast ‘if’),
then justice can only arise from deep within this mundanity.
I draw my inspiration from two of what can be considered the main sources of
the modern theory of repetition:8 Søren Kierkegaard’s Repetition and Gilles
Deleuze’s Difference and Repetition. A note on these two texts: while Deleuze’s contri-
bution has already been employed in art theory, Kierkegaard has been left in
the margins. At first instance, this may be attributed to the fact that Deleuze has
 Repetition Or the awnings of justice 47

regularly written on art, thus facilitating the use of his theory of repetition, whereas
Kierkegaard’s art discussions are sporadic, one would say incidental and usually
instrumental to his theological project. There is, however, another difference:
in full awareness of generalisations, Deleuze remains a philosopher with a solid
faith in oneness, in ‘primordial totality’9 which has later evolved in Deleuze’s work
with Guattari in the plane of immanence – however fragmented, multiplicitous
and never-given this may be.10 On the contrary, Kierkegaard’s oeuvre is charac-
terised by the impossibility of oneness, even when the leap of faith has been taken
and the godly has appeared in the act of worshipping (hence his famously becom-
ing ‘non-Christian’ as his later work announced11). Kierkegaard is characterised
by a deep impossibility of oneness. In many respects, he remains a philosopher of
a breaking down, of a despair that cannot accept itself. However, precisely this
makes Kierkegaard’s work relevant to the present analysis of repetition for two
reasons: first, as an ideal companion to de Chirico, whose late production is char-
acterised by ‘something terribly heroic . . . not only because he must be lonesome
and desperate in his patient work of self-destruction, but also in the fact that he
carried his intentions out in a terribly consequent way and never gave the slightest
explanation of it even to his most intimate friends’;12 and, second, as an ideal foray
in law’s own impossibility of going beyond itself. I hope that the connection
becomes more obvious as the argument progresses.

Giving up
Søren Kierkegaard’s Repetition is an odd work even for the usual transgressive
Kierkegaardian standards. Half roman-à-clef, half philosophical treatise, Repetition
deals with its title concept rather incidentally and through the motions of the
novel.13 There are two levels on which repetition takes place in the text: first, the
enslavement of the narrator’s protégé to repeating amorous recollections for a
girl he met; and, second, the author/narrator’s return to Berlin in an attempt to
recapture the pleasures of his first visit to the city. These instances exemplify two of
the basic thrusts in Kierkegaard’s take on repetition: first, that repetition is not
recollection; and, second, that repetition can only take place when one does not
mediate in order to reproduce it.
The two, however, are not clearly separated and feed into each other. Thus,
the narrator’s (Constantine Constantius – Kierkegaard’s nom-de-plume) move
from Copenhagen to Berlin takes place in intense spatialisation. Spatiality under-
lines the fundamental notion of the book, namely that repetition is always actual
(it has ‘the blissful security of the moment’14), always here, and for this reason, as
Constantius/Kierkegaard urges, it must replace the historicity of recollection.
Indeed, recollection plagues Constantius’s protégé, a young poet given to passion-
ate feelings whose actions Kierkegaard dismisses as mere recollection, namely
one’s desperate clinging on the past in an attempt to understand one’s being. But
repetition is not recollection: repetition is a ‘forward’ recollection in actuality that
opens up to one’s becoming. Repetition prioritises living over understanding, thus
48 Law and art: justice, ethics and aesthetics

moving away from what Kierkegaard dismissed as the erroneous backwards

historicity of recollection, and reinstating the immediacy and actuality of here.15
Constantius’s attempt to mentor the young poet on how to deal with his desire
consists of a cruel and dispassionate strategy of distanciation that would allegedly
save him from the torment of sterile recollection. Unsurprisingly the attempt fails.
When Constantius returns to Berlin in search of repetition, he discovers that
‘everything was exactly the same, the same jokes, the same courtesies, the same
patrons, the place was exactly the same – in short, uniform in its sameness.’16
His endeavour to experience again the urban pleasures ends up in perfect tedium:
‘the only thing that repeated itself was that no repetition was possible.’17 So, on
one hand, there could be no repetition, and on the other, everything was the same!
But this is not surprising: the problem with Constantius’s approach was that he
tried for repetition rather than abandoning himself to the here of the present living
(which is already replete with repetition). In his pursuit of pleasure, Constantius
acts like Don Juan (another favourite Kierkegaardian figure18) who over-invests in
the here but only as another recollection in his list of conquests; he tries too hard
and misses actuality.
At the end, Constantius does what he should have done from the outset:
he resigns from the pursuit. ‘Repetition is too transcendent for me. I can circum-
navigate myself, but I cannot get beyond myself. I cannot find this Archimedean
point.’19 At the same time, however, this Archimedean point is nowhere to be
found except within: ‘that which is repeated has been, otherwise it could not be
repeated; but precisely this, that it has been, makes repetition something new.’20
This is the peak of the Kierkegaardian paradox: the Archimedean point of
transcendence is folded in the immanence of living that defies understanding, ren-
dering living itself the point of transcendence. Constantius gives up, abandons
himself to his relentlessly repeating (human) nature and, by extension, to the
divine. In that sense, repetition is both outside and within, hidden in the fissures
of withdrawal. For Kierkegaard, this withdrawal refers to the resignation from
the possibility of a Hegelian Aufhebung, the final resolution which, according to
Kierkegaard is not a movement but a ‘commotion’, a mere ‘mediation’.21
Repetition is ‘the new category that must be discovered’,22 a movement that moves
away from both recollection and mediation, and opens itself with abandon to the
future. And although repetition is the absence of endeavour, at the same time is
inviting of a rupture, a transfiguration that makes repetition every time different:
for while Constantius reminds us that ‘repetition is transcendence’23 he also
makes sure to contain this by a paradoxical ‘repetition is actuality’.24 Kierkegaard’s
transcendence can only be performed and embodied in an actual materiality,
indeed an immanent spatiality, which in itself renders the space transcendent.
The connections between de Chirico and Kierkegaard are several,25 but here I
would like to focus on the predominant position that both auteurs assign to the
enigma. Repetition is arguably the most enigmatic of Kierkegaard’s books – George
Steiner has called it ‘an enigmatic but probably decisive treaty’,26 underlining with
the term ‘probably’ the awkwardness with which one always approaches an enigma.
 Repetition Or the awnings of justice 49

De Chirico on the other hand has always attempted to capture the ‘enigma’, both
expressly, as several titles of his paintings attest to, but also in relation to his own
compulsively repeating persona.27 In other words, repetition is the enigma, because,
in Kierkegaard as in de Chirico, it cannot be clearly attributed to anything, to
either side of making art or money, conceptual or material, identity or difference,
immanence or transcendence. Both Kierkegaard and de Chirico make use of their
material, be this the text or the canvas, while superseding it. But neither of them
departs from their material. They remain captured, carving out spaces of tran-
scendence among the breaths of repetition, the building and the sky, the demiurge
and the public. The enigma of repetition is that its transcendence can only be
reached through, and then inscribed within, immanence.
This is also the basis for the kind of thinking I would like to suggest in terms of
repetition in law. Normative repetition may well be repetition in the Kierkegaardian
sense. To start with, it is not mere recollection. When norms (or judgements)
repeat themselves, superimposing themselves on a spiral of self-referential produc-
tion, repetition is ‘every time once’, every time different and given to the condi-
tions that determine their singularity. At the same time, normative repetition is
immanent, determined solely by its own semiotic processes, whose not infrequent
departures signal a widening, altering, adapting of law’s semiotics. Normative
immanence stretches to include the extra-legal, the novel, the different, by carrying
on relying on its ‘canvas’ of given normative structures. Thus, we are presented
with a law that seems (but is not) coherent, monocular, synthetic. In its repetition,
the law fragments in its various perspectives and then, arbitrarily at a given point,
regroups and delivers a judgement. For the law, this is the moment of transcend-
ence, where an opening in the architecture, an awning of an arch unexpectedly
reveals a piece of sky. When it takes place, legal transcendence is always within the
law, appearing dream-like behind a normative edifice, in the form of justice. Derrida
has famously shown that justice, however transcendent, comes from within the
calculability of the law.28 But one can take this even further: in its transcendent
immanence, law is justice.29 Only through law’s obsessive normative repeating
can justice spring forth. But here, the arbitrariness of the law is revealed: we who
view the spectacle of the law in all its square claustrophobia with its collapsing
structures and sordid shadows, we know that the law simply may be just. There is no
guarantee that law is just. The law is blind to its injustice. Not only that, but the law
takes time to address its own transcendence, that is to cross its piazza of immanence
and capture this and that vista, this and that parcel of the horizon. Law’s repetition
produces difference, but this does not always mean that law is just.

Logos and nomos as repetition

Just as Kierkegaard, Deleuze, in his Difference and Repetition argues that repetition
produces difference. Deleuze gives the ‘paradoxical’ example of festivals: ‘they
repeat an “unrepeatable”. They do not add a second or third time to the first, but
carry the first to the “nth” power.’30 Deleuzian repetition ‘constitutes the degrees
50 Law and art: justice, ethics and aesthetics

of an original difference’,31 the difference that trammels all differences without

making them commensurate. It is the unique production of absolute differences
‘without any mediation whatsoever by the identical, the similar, the analogous or
the opposed.’32 Deleuze, however, differs from Kierkegaard in that he creates a
hierarchy of repetition: a ‘repetition of the same’, that is generality, and ‘a more
profound repetition, which is played in another dimension.’33 The law is men-
tioned very early on in the book and helps Deleuze differentiate between repeti-
tion and generality. Law for Deleuze is ‘an empty form of difference, an invariable
form of variation’, and as such it is confined to generality. If law is generality, then
‘repetition would remain impossible for pure subjects of law – particulars.’34 Legal
subjects, namely particular conditions, facts and subjectivities, have to be subsumed
to this generality: they have to change themselves constantly in order to adapt
to it.
Both natural and moral law remain too general for the kind of repetition that
gives rise to singularity. Law striates the ‘Euclidian’ space35 of the ‘legal model’, of
logos and sovereign morality. But just as there are two kinds of repetition, there are
also two kinds of law. To law as logos (Oedipal law, the law of the Father that stri-
ates into structures, disciplinary terrains, pillars of hierarchy), Deleuze and
Guattari oppose nomos: ‘the nomos came to designate the law, but that was origi-
nally because it was distribution . . . one without division into shares, in a space
without borders or enclosure.’36 Nomos is the uncountable, incalculable law that
distributes emplacements and lines of flight on smooth space. Nomos is ‘wedded to
a very particular type of multiplicity: nonmetric, acentered, rhizomatic multiplici-
ties that occupy space without ‘‘counting’’ it and can ‘‘be explored only by
legwork’’.’37 Nomos is also connected to what Deleuze has referred to as jurisprudence,38
the space of flows of desire not for a lack but for the future.39
For Deleuze, the law of hierarchy and stricture is nothing but a repeated call to
transcendence. To transcend is to offer the teasing connection to a prior other
(Levinas), to a more worthy ‘quasi-concept’ inside metaphysics (Derrida), to an
instrumentally necessary idea that will guide reason (Kant). To transcend is to
reduce one to one’s own limitations, to show that there is always more they could
have done but will never be able to. Law’s commands are filled with impossible
leaping feats that demand a moralising reaction. To put it from an autopoietic
perspective, law’s transcendence impedes the ethical (immanent, ontological,
inscribed within one’s capabilities) and encourages the moral (expansive, colonising,
capitalist).40 Indeed, ethics is of the law, inscribed in its immanence, whereas
morality is the demands on the law to transcend itself, try more for its repetition,
be something other. Deleuze’s answer to this is always one of immanence, of
Spinozian univocity where difference is unmediated, defined only in its absolute as
differing.
This is perhaps the crux of the Deleuzian project of immanence, and on this
basis he criticises Kierkegaard’s allowance for transcendence, namely the latter’s
entrusting of repetition to the future and more specifically to the transfigurating
rupture of god: ‘faith invites us to rediscover once and for all God and the self in a
 Repetition Or the awnings of justice 51

common resurrection . . . This is [Kierkegaard’s] problem: the betrothal of a self

rediscovered and a god recovered, in such a manner that it is no longer possible
truly to escape from either the condition or the agent.’41 This ‘once and for all’ is
the end of repetition, and for Deleuze, the end of difference too.42 Repetition ends
when a posited space of transcendence (the transfigurating rupture of the divine)
solves the chain of repetition. What is more, transcendence retrospectively renders
repetition a repetition of the same, a mere generality, one that needed transcend-
ence in order to relieve itself from itself. In a Hegelian coup, the rupture both
validates and identifies the prior repetition as impasse. Transcendence reveals
repetition to be nothing but recollection (to use Kierkegaard’s term) thus inscrib-
ing it firmly in a bad, infinite transcendence. This kind of repetition desires
after the impossibility of transcendence, and as such annuls itself as repetition
as difference.
If one accepts that there is a posited space of transcendence in Kierkegaard of
the kind that Deleuze finds to be incompatible with immanence, one is left with a
conundrum: for Deleuze there is an essence of repetition (‘profound’ repetition)
that is left uncaptured by generality or by mere repetition of the same. This simply
means that repetition can be compared to repetition, and one of them will be
found inessential, impure and inferior, while the other will be the right thing, as if
we are still talking about two phenomenological levels of reality. To this, one can
oppose Kierkegaard’s understanding of the Deleuzian equivalent of ‘repetition of
the same’ which for Kierkegaard is simply no repetition at all. When Kierkegaard
rejects the lover’s passionate obsession, he does so, not because his repetition is not
true, but simply because there has been no repetition. A repetitiveness maybe, a
morose self-indulgence certainly, but not repetition (to quote Constantius/
Kierkegaard again, ‘the only thing that repeated itself was that no repetition was
possible’43). For Kierkegaard, repetition is freedom,44 and being enslaved to the
repetitive fixation of the same is neither freedom nor repetition. Thus, for
Kierkegaard there is repetition only where there is repetition. The autopoietic nature of
repetition in its incomparable exactitude is clearer in Kierkegaard’s description
than in Deleuze’s staggered version, and allows for a repetition in its absolute
incomparability. Repetition happens only when it happens. One cannot try for
it; rather, one abandons oneself to it. Kierkegaardian repetition is unstaggered,
undivided, incommensurate immanence.
In short, I argue that Kierkegaard does exactly what Deleuze professes to
do but stops short from, namely ontologically equate difference and repetition.
In that sense, the Kierkegaardian project of repetition as difference is closer to
immanence than the Deleuzian one. This is supported also by the fact that for
Kierkegaard, no transcendence is possible except as an enigma, a paradox that
remains irresolvable. This does not mean that there is a space of transcendence
that promises resolution. On the contrary, it reveals a Kierkegaardian immanence
so absolute and for this so incommensurate, that the whole plane of immanence itself turns
onto its head and becomes coextensive with its own transcendence. Repetition is both actuality
and transcendence, both here and there, both now and then – but this paradox
52 Law and art: justice, ethics and aesthetics

can only be inscribed in the plane of immanence which, in its self-referential

incommensurability, becomes its own plane of transcendence.
This plane is not a closed, circumscribed chess game but an open terrain: ‘it is
a question of arraying oneself in an open space, of holding space, of maintaining
the possibility of springing up at any point.’45 The space of repetition is one of
expansive, borderless immanence that contains potentially (actually, contingently,
latently) everything. ‘All is contained’ means necessarily that its self-reference is
also contained, otherwise it is not all containing. But self-reference requires a
space from which to make the reference – it requires a self to describe the self. This
is not representation but the self-description of becoming. To cross from described
self to describing self, that is to ‘spring up at any point’, is immanent, yet tran-
scendent. In other words, on the plane of immanence there is crossing, and this
crossing is repeated in absolute difference, every time once, as transcendence. This
is how, I would argue, Kierkegaard understands repetition as both immanence
and transcendence: on the one hand, transcendence inscribed in immanence, and
on the other immanence as absolute, self-transcending immanence.
This bears important consequences for the law. Deleuzian/Guattarian distinc-
tion between logos and nomos corresponds to the staggered repetition, with its clear
preference for the nomic and the ‘war machine’ as resolution. While this may be
justified in various contexts, it undermines the nomic nature of law. Nomos was not
around only when law was distribution, an almost nostalgic recreation of spatial
smoothness. Law is always still nomic. Law refers to its spatiality (not only in its
distributive sense, but in its ethical sense46) and gets dirty with the immanent tran-
scendence of justice. This is nowhere more obvious than in law’s repetition. What
Nathan Moore finds problematic, namely the self-referential nature of the law,
I consider law’s only way to remain immanent. Moore writes that the law pro-
duces ‘an uncritical and unthinking mode of legalistic being that never departs
from the vicious circle of interminable self-reference. On the other hand, jurispru-
dence is the mode of working through, and acts as the event or abstract machine
of the legal assemblage. It is jurisprudence that demands a thinking through, while
the law and laws require mere application.’47 The distinction between law and
jurisprudence is of the Roman legal tradition – because here and in Deleuze’s
distinction, jurisprudence is used in its continental sense of legal cases rather than
legal theory – and one that seems to lose its relevance in Common Law systems.
But is this really the point? The distinction is structured as uncritical application
versus applied thinking of the law. This kind of distinction can be applied to both
Roman Law and Common Law traditions, and in every case will be found want-
ing. This is not an apologia for the law. It is precisely the opposite: it is an argu-
ment for the non-clear-cut nature of the law, its expansion in thinking application
as well as uncritical generality. The law is not just legalistic. This would have been
too simple (to deal with, understand, counteract, oppose to, revolt against). The law
repeats itself interminably, every time producing an absolute difference inscribed in its self-referential
immanence. Within the folds of its repetition, the law renders itself just, turns itself into justice,
and crosses from one point of immanence to another. The law is both legalistic and just.
 Repetition Or the awnings of justice 53

This of course does not mean that law always produces justice. Rather, justice
is unexpected and uncontrolled by law. Even so, any control that may be exerted
over the production of justice can only take place through law. More concretely,
justice may be produced and the only way of allowing for this to happen is by
delving deeper into law. Law’s repetition is justice’s field of appearance, but its
appearance is unexpected, surprising even, like the piece of sky captured by an
awning. It is important, therefore, to emphasise that the conditions of justice
production cannot be reduced to a distinction between logos and nomos. Just as
nomos does not always produce justice, in the same way ‘mere application’ does not
preclude justice. In its confluence of logos and nomos, the law becomes a fleeting
target. Nothing as easy as ‘uncritical and unthinking’, or as Deleuze put it, a facile,
one-directional causality of the kind ‘it’s jurisprudence, ultimately, that creates
law.’48 Nor is there a distinction between ‘pure’ legal repetition that produces
singularity and justice, and a ‘repetition of the same’ that is merely a vicious circle.
Law is repetition, and repetition is justice. Law is both immanence and transcendence,
and in its incommensurability it includes the transcendence of justice. Deleuze
talks about ‘a field of justice against the transcendent law, the continuous line of
escape against the segmentalisation of the blocks’.49 But this field is working from
within the law, between the blocks, often against the law, indeed as I have argued
elsewhere despite the law;50 but often also through the law, with the law, as the immanent
law’s very own transcendence. The enigma of the law makes the law a difficult
target, giving rise to what Peter Goodrich refers to as the melancholic lawyer,51
namely the one working from within the law but against it, in a state of constant
revolt against one’s own incapacity to choose whether to love or hate the law.

Abandon
In de Chirico’s early painting The Enigma of the Hour (1911), a portico appears for
the first time as a series of identical awnings in the middle ground of the canvas.
There is a wall behind the awnings and on the wall there are two openings on
either side of the central arch of the building. The openings are only partly visible,
since the curves of the portico obstruct the upper part of the opening. Through
what is left, a nebulous greenish sky can be discerned. The same motif returns
forty years later in several of de Chirico’s multiple revisitations of the Piazza d’Italia.
In Piazza d’Italia – Malinconia (both versions of 1950) for example, a similarly semi-
obstructed awning appears on the back wall of the midground building, just
underneath an arch, allowing a glimpse of an almost fluorescent green piece of
sky. Likewise, in the 1970 (ante-dated by de Chirico as 1937) Piazza d’Italia with
Statue, the porticos flank the canvas and the tall awnings capture a slice of dusk.
These paintings have been endlessly repeated, every time producing a different
painting, both in terms of canvas details and in terms of the sensation they create.
Every awning captures something of the sky in an unexpected, surprising, some-
what unnatural way. The opening of the canvas from within signals the open
plane of immanence where the sky can spring up anywhere. The repetition of the
54 Law and art: justice, ethics and aesthetics

porticos, always the same but always different, produces an interspace of tran-
scendence, itself part of the portico, in its turn part of the interminable helix of
self-reference. Within, through and against the edifice of the law, the opening of
justice appears and renders the very portico the site of its appearance. The portico
is immanence unfolded, but its unfolding extends to transcendence. Transcendence
crops up like a crossing from awning to awning. De Chirico’s repetition is repetition
in the Kierkegaardian/Deleuzian sense, namely as the space of singular difference.
Law’s need to capture future through present repetition opens up its imma-
nence to the future. But even the future is inscribed in the present for Kierkegaard.
Openness to the future is simultaneous with repetition, and the only temporal
faux-pas of repetition is recollection. As Žižek says, ‘it is therefore in the name of the
abyss of free decision that Kierkegaard turns against the retrospective ‘‘comprehen-
sion of history’’ which endeavors to account for the necessity of what took place.’52
Recollection is understanding, validating, justifying. Repetition is a simultaneous
act of difference along other repeating acts that, in their immanent simultaneity,
open up to the possibility of future as a present event. Law includes its future in its
series of repeated difference, and at every nod of repetition justice may spring up.
As said, its appearance is unexpected and beyond the control of the law. Provided
that the law carries on repeating its incommensurability, justice is potentially
there. The temptation to push law into ‘more’ justice is understandably strong.
But the law risks becoming moralising. Law needs to return to itself, its repetition, in
order for the immanence of the ethical to replace the transcendence of the moral.
Targeting justice from within law is equivalent to trying for a transcendental law –
but what is that if not law’s incapacitation? Law may turn itself into justice by
delving deeper into repetition. But there is no magical way to make this happen,
no external coup that will demolish the building yet keep the sky as appearance.
The way to deal with it is from within the law, the only playing field available.
There is a final point of relevance in the paintings. This is the repeated figure
of Ariadne, depicted as a statue in the middle of the piazza. Ariadne is asleep,
statuesquely frozen in the middle of piazzas, oneirically suspended between the
departing sail of Theseus’s boat who just abandoned her on the island of Naxos,
and the arriving smoke of Dionysus’s train (who in the myth arrives to her rescue),
silently mouthing one relentlessly repetitive phrase: ‘I want to be found.’ Nested
between the folds of her ethereal body there is an invitation to the passage in
the form of stasis: ‘Ariadne’s sleep is the moment in which abandonment and dis-
covery touch, in which mortal and immortal, Apollonian and Dionysian worlds
meet.’53 Ariadne, and through her de Chirico, abandons herself to an enigmatic
languor, offering thus the only way in which the enigma can be traced: withdrawing
from it.54
De Chirico has not forgotten Ariadne’s previous mythical cameo. She was the
one who helped Theseus find his way out of Minotaur’s maze with a winding
thread. Although de Chirico’s piazza with its superimposed perspectives repeats
the maze, his thread leads not out of the maze but deeper into it, deeper into the
melancholy of Ariadne, into her abandonment to a state where no resolution is
 Repetition Or the awnings of justice 55

anticipated: this line, which has placed her on the island of Naxos, is the one that
thinly and contingently separates abandonment from desire, maze from island,
recollection from repetition. This line is taken up by de Chirico and in a magis-
terial move, is stretched as the line of the horizon, luminous limit of a twilight that
expands the immanence of the canvas to further, constantly renewed fields of
immanence. In its appearance through the awnings, the horizon signals the
enigma at its most potent: the choice between immanence and transcendence is
firmly inscribed within. In response, Ariadne is frozen, statuesque. She withdraws
both from recollecting Theseus and waiting for Dionysus and allows repetition to
wash over her. As if following Kierkegaard’s urge, Ariadne stops trying to mediate
between her past and future, she gives up (as Constantius/Kierkegaard says,
‘Repetition is too transcendent for me . . . I cannot get beyond myself.’55). Ariadne
incarnates Deleuze and Guattari’s favourite figure, the Nietzschean schizo: ‘the
schizo knows how to leave: he has made departure into something as simple as
being born or dying.’56
Ariadne’s unwillingness to choose between Theseus and Dionysus is resonant
of the melancholic lawyer’s inability to choose between loving and hating the law.
Just as Ariadne and Constantius, the melancholic lawyer withdraws before the
distinction, delving deeper into the enigma. This, however, does not mean that she
surrenders to the system. On the contrary, this is the only way in which repetition
is repetition. Trying to repeat in order to achieve difference brings no repetition.
The mundanity of repeating, however, may bring difference. Difference is like
breathing. One repeatedly breathes without thinking about it. One has to abandon
oneself to breathing so that every breath brings its singular life-giving properties.
As soon as one tries to breathe, breathing becomes a chore, a struggle for sameness
(‘how do I normally breathe?’). Justice is law’s breath, law’s animation that turns
its repetition into difference, its structure into responsiveness. Through the self-
referential repetition of the law, justice springs up in its own improbable repetition –
itself coextensive with the law. Law’s repetition is justice, provided that repetition
is difference. Law becomes co-extensive with itself, frantically pulsating under the
strain of its own differential repetition. There is no space for justice except as a
superimposition, an amalgamation with the law. Law’s plane of immanence bursts
with justice.
This can only happen through withdrawal. This is the ultimate revolution:
to repeat difference in absolute incommensurability while withdrawing from
trying to repeat. Indeed, for Deleuze and Guattari, withdrawal has nothing pas-
sive about it. The schizo’s withdrawal is a stasis in the double sense of the word as
pause and revolt: the schizo knows how to depart ‘but at the same time his journey
is stationary, in place’,57 frozen like a statue but forceful in her pause, a pulsating
stasis. Withdrawal is revolutionary because it reveals the social as rotten under-
neath the cover of presence. This is the crux of Deleuzian critique, as de Sutter
puts it: ‘a process of vanishing’.58 Deleuze and Guattari make the connection clear
in the following passage: ‘Good people say that we must not flee, that to escape is
not good, that it isn’t effective, and that one must work for reforms. But the schizo
56 Law and art: justice, ethics and aesthetics

knows that escape is revolutionary – withdrawal, freaks – provided one sweeps away
the social cover on leaving, or causes a piece of the system to get lost in the shuffle.
What matters is to break through the wall.’59 But even this other side of the wall
remains immanent. A passage from de Chirico’s novel Hebdomeros gives an indica-
tion of what happens behind the wall: ‘at such moments it happened sometimes
that the wall at the back opened, and then there appeared spectacles which were
sometimes frightening, sometimes sublime or delightful: a storm at sea with hid-
eous gnomes grimacing and gesticulating in hostile fashion on the foaming crests
of the waves, and sometimes also a springtime landscape, astonishing in its
poetry and tranquillity: hills of delicate green framed a path with almond trees
shading the edges.’60 In other words, immanence repeats itself both sides of the
wall. Breaking the wall is also part of the canvas, and the enigma is repeated.
There is no other side. Justice can only be found within, in a gesture of immanent
withdrawal.

Notes
1 Taylor has characterised them ‘incompatible spatial systems’: ‘Between Modernism
and Mythology: Giorgio de Chirico and the Ariadne Series’, in M. Taylor (ed.), Giorgio
de Chirico and the Myth of Ariadne, exh. cat., Philadelphia: Philadelphia Museum of Art,
2002, p. 33.
2 G. Lista, ‘La Trans-Avant-Garde ou le Retour à l’Art’, Artstudio 7, 1987–88.
3 M. Ernst, ‘Max Ernst on de Chirico’, in M. Taylor, op. cit., p. 171ff.
4 Cited in S. Symmons (ed.), Andy Warhol (After de Chirico), London: Waddington Galleries,
1998.
5 Quoted in M. Bail, ‘De Chirico’s Future’ in M. Lloyd et al. (eds.), Surrealism: Revolution
by Night, Canberra: National Gallery of Australia, 1993.
6 Symmons, 1998, op. cit.
7 For further, see my ‘Beauty and the Beast: Art and Law in the Hall of Mirrors’,
2 Entertainment Law 3, 1–34, 2004.
8 Sources include Aristotle and his theory of imitation, as well as Nietzsche’s eternal
return. I have chosen to focus on the Kierkegaardian and Deleuzian repetitions because
it applies to issues of immanence between law and justice.
9 G. Deleuze, Nietzsche and Philosophy, H. Tomlinson (trans.), New York: Columbia
University Press, 1983, p. 24.
10 Alain Badiou calls him ‘the most radical thinker of the One since Bergson’, Deleuze:
The Clamor of Being, L. Burchill (trans.), Minneapolis: University of Minnesota Press,
2000, p. 80.
11 N. Nymann Eriksen, Kierkegaard’s Category of Repetition, Berlin: Walter de Gruyter, 2000,
p. 6, puts it correctly: ‘Kierkegaard’s final position is captured in his words ‘I am not a
Christian’ (comparable to his earlier professing that he is not a surrealist).
12 Max Ernst, ‘Max Ernst on de Chirico’, in Taylor, op. cit.
13 N. Eriksen, 2000, op. cit., p. 2, sees repetition ‘not so much as a philosophical doctrine
as a paradigm of thought’.
14 ibid., p. 3.
15 ibid.
16 ibid.
17 S. Kierkegaard, Repetition and Philosophical Crumbs, M. G. Piety (trans.), Oxford: Oxford
World Classics, 2009, p. 38.
 Repetition Or the awnings of justice 57

18 See Either/Or, W. Lowrie (trans.), Princeton: Princeton University Press, 1949.

19 Kierkegaard, Repetition, op. cit., p. 50.
20 ibid., p. 19.
21 ibid.
22 ibid., p. 18.
23 ibid., p. 50.
24 ibid., p. 4.
25 See my ‘On the Line of the Horizon: Anxiety in de Chirico’s Metaphysical Landscapes’,
in G. Ricci (ed.), Religion and Public Life Annual Series, Vol. 35, 2006.
26 G. Steiner, ‘The Wound of Negativity: Two Kierkegaard Texts’ in L. Rée and
J. Chamberlain (eds.), Kierkegaard: A Critical Reader, Oxford: Oxford University Press,
2008, p. 104.
27 G. de Chirico, originally published in Valori Plastici, Rome, April–May, 1919, cited
in H. Chipp (ed.), Theories of Modern Art, Berkeley: University of California Press, 1968,
p. 451.
28 J. Derrida, ‘Force of Law: The ‘‘Mystical Foundation of Authority’’’, trans. Michael
Quaintance, in D. Cornell, M. Rosenfeld and D. Gray Carlson (eds.), Deconstruction and
the Possibility of Justice, New York: Routledge, 1992.
29 N. Luhmann, Law as a Social System, trans. K. Ziegert, Oxford: Oxford University Press,
2004; and my Niklas Luhmann: Law, Justice, Society, Nomikoi Critical Legal Thinkers
Series, London: Routledge, 2009.
30 G. Deleuze, Difference and Repetition, P. Patton (trans.), London: Continuum, 2004, p. 2.
31 G. Deleuze, Proust and Signs, R. Howard (trans.), Minneapolis: University Of Minnesota
Press, 2004, p. 48.
32 Deleuze, Difference and Repetition, op cit., p. 117.
33 ibid., p. 20.
34 ibid., p. 2.
35 G. Deleuze and F. Guattari, A Thousand Plateaus: Capitalism and Schizophrenia, B. Massumi
(trans.), London: Athlone, 1988, p. 409.
36 ibid., p. 420.
37 ibid., p. 409.
38 ‘What interests me isn’t the law or laws (the former being an empty notion, the latter
uncritical notions), nor even law or rights, but jurisprudence. It’s jurisprudence, ulti-
mately, that creates law, and we mustn’t go on leaving this to judges.’ G. Deleuze,
Negotiations, M. Joughin (trans.), New York: Columbia University Press, 1995, p. 169.
See N. Moore, ‘Icons of Control: Deleuze, Signs, Law’, International Journal for the Semiotics
of Law, 20, 33–54, 2007, who defines jurisprudence as ‘the mode of practising the law,
where the law is engaged with anew in each and every situation’, p. 34.
39 For a comparison between Lacanian and Deleuzian desire, see D. Milovanovic,
‘Diversity, Law and Justice: a Deleuzian Semiotic View of ‘‘Criminal Justice’’’,
International Journal for the Semiotics of Law, 20, 55–79, 2007; also D. Smith, ‘Deleuze and
the Question of Desire: Toward an Immanent Theory of Ethics’, Parrhesia 2, 2007,
66–78. On emergent law see J. Murray, ‘Nome Law: Deleuze and Guattari on the
Emergence of Law,’ International Journal for the Semiotics of Law, 19/2, 2006, 127–151.
40 The distinction comes from Luhmann, himself following Weber. See Law as a Social
System, 2004, op. cit.
41 ibid., p. 118, original emphasis.
42 But Deleuze’s difference is also absolute and non-comparable, elevated to an all-underlying
idea replacing the Hegelian pseudo-movement between identity and difference.
43 Kierkegaard, Repetition, op. cit., p. 38.
44 Nymann Eriksen, op. cit.
45 Deleuze and Guattari, Plateaus, op. cit., p. 420.
58 Law and art: justice, ethics and aesthetics

46 See my ‘Law’s Spatial Turn: Geography, Justice and a Certain Fear of Space’, Law,
Culture and the Humanities, 5, 2010.
47 Moore, Icons of Control, op cit., p. 43.
48 Deleuze, Negotiations, op. cit., p. 169.
49 G. Deleuze and F. Guattari, Kafka: Toward a Minor Literature, D. Polan (trans.),
Minneapolis: University of Minnesota Press, 1986, p. 86.
50 See my ‘Between Law and Justice: A Connection of No Connection between Luhmann
and Derrida’, in K. E. Himma (ed.), Law, Morality, and Legal Positivism, Stuttgart: Franz
Steiner Verlag, 2004.
51 P. Goodrich, Oedipus Lex, Los Angeles: University of California Press, 1995.
52 S. Žižek, Enjoy Your Symptom!, New York: Routledge, 1992, p. 79.
53 M. Gale, ‘Rewinding Ariadne’s Thread: De Chirico and Greece, Past and Present’ in
M. Taylor, op. cit., p. 56.
54 This is exactly the enigma in de Chirico’s oeuvre, contra A. J. Tamburri’s (‘Aldo
Palazzeschi and Giorgio de Chirico’, in B. Allert (ed.), Languages of Visuality, Detroit: Wayne
State University Press, 1996) assertion that there is no enigma but for the mismatch
between title and image.
55 ibid., p. 50.
56 G. Deleuze and F. Guattari, Anti-Oedipus, R. Hurley, M. Seem and H. R. Lane (trans.),
Minneapolis: University of Minnesota Press, 1983, 131; see also B. Arsic, ‘Thinking
Leaving’ in Buchanan and Lambert (eds.), Deleuze and Space, Edinburgh: Edinburgh
University Press, 2005.
57 Deleuze and Guattari, Anti-Oedipus, op. cit., p. 131.
58 L. De Sutter, Deleuze: La Pratique du Droit, Paris: Michalon, 2008, p. 55.
59 Deleuze and Guattari, Anti-Oedipus, op. cit., p. 277.
60 G. de Chirico, Hebdomeros, M. Grosland (trans.), London: Peter Owen, 1992, p. 21.
Chapter 3

Judaism in the no man’s land

between law and ethics
Ariella Atzmon

To define ethics is no easy task! As ethics is connected to philosophy, many

‘philosophies’ radiate numerous reflections concerning ethical premises; e.g. con-
temporary western democracies derive their whole legal discourse from Positivism
and its calculative offshoots. Contrariwise, the ethical judgment as a vigilant act,
attributable to the transcendental subject rather than to the empirical individual,
hints at the uncanniness of human existence.
According to Heidegger, this is the condition of being torn between ‘violence–
doing’ against ‘Being’ and the violence of ‘Being’ itself. In Sophocles’ Antigone
Heidegger presents us with a human swirl, as a reflection upon arguing rightly and
thinking humanely.1 Heidegger describes the Greek polis as the site of openness
where contest and antagonisms are revealed in a torturous way. The polis is where
Man’s craving for ‘unconcealment’ (Unverborgeneheit) allocates to him as a ‘there’ site,
and that genuine ‘thereness’ alludes to the political as bound to ethics.2 Viewing
justice in legalist terms signifies the Westerners’ betrayal of its ‘polis’ heritage.
In violating the overpowering limiting power of ‘Being’ poetically, creative
thinkers have created ‘the place’ in the polis, where the rhetorician, politician,
philosopher, or legislator aspired to convince the public about the ‘truth value’ of
innovative bits of knowledge. In the centre of the city, symbolically represented as
an ‘empty place’, the speaker’s position could be challenged in order to be won.
Physics furnishes an excellent illustration of the fluidity of concepts that once
had been established and defined, their content is constantly altered. This ongoing
process of disequilibrium between a discourse and its objects is reminiscent of the
‘empty space’ (agora) in the Greek polis. In Judaism, where ‘truth’ is divine, the
‘empty space’ does not exist! Thus, it is deprived of the ethical whirling experi-
ence. The question is: How is it possible for the ethical episode to happen, if
science and art are prohibited, and justice is replaced by obedience? Jewish
law tolerates neither empty spaces to be filled up by rhetoric, nor disparity to be
acted out by the means of theatre or epics.
The Greek polis represents an immensely challenging opposition to the biblical
monotheist posture towards ethics. Unlike the Greek polis, ‘Jerusalem’ comprehends
justice as spiritually constricted by scriptures’ instructions. If we perceive ‘justice’
as a striving for knowledge armored by techne, rebuffed violently by dike, then the
60 Law and art: justice, ethics and aesthetics

people of Jerusalem are deprived of this exciting experience.3 Heidegger’s con-

ception of the ethical event as an unending throwing of techne against dike, evokes
an inherent clash between ‘Law’ and ‘Justice’ as contemplated by ‘care’ that inten-
sifies the sensitivity for the ethical and the political. But what can take place only
if it remains open; being attentive to a changeable inconclusive universe, is vitiated
by the Judaic verdict of closure.
The ‘empty space’ is the core of hermeneutics.4 In Heidegger’s view herme-
neutics is the art of creatively understanding a text, thereby inspiring new chains
for profound search into ‘ontological and epochal thinking’. This position is alien
to Jewish ‘erudition’, where the Law is read in respect to a preserved textual
knowledge originating in divine authority. The Judaic approach to the playfulness
of language is more elusive than it seems. The Jew who is oscillating between
immutable textual knowledge and the ‘turn it and turn it, for everything is in it’, without
plumping for either, is jammed into false hermeneutics. Hence Judaism which
conceives the human being as subordinated to the Text, the claim of bringing
hermeneutics to its prime fails.
In his article ‘The Law Wishes to have a Formal Existence’ Stanley Fish speaks
ironically about the threat of hermeneutics, as being the exposure of a text to too
many open uncontrolled interpretations.5 The two threats to ‘The Law’ are moral-
ity, to which the law pretends to be related, and interpretation. But legally valid
and morally right can rarely coincide. If justice could be inferred directly by a
chain of moral obligation there would be no need for a legal system. In Fish’s
words: ‘many moralities would make many laws, and the law would lack its most saliently
desirable properties, generality and stability’.6 The fear of the ‘deleterious’ influence of
morality maintains the formal existence of the law.
Oddly enough, formal legalism coincides with Judaic conceit of elevating
hermeneutics to its peak and at the same time preserves zealously the formal status
of The Law. ‘Jewish Hermeneutics’ presents us with an example where as soon as
an inventive interpretation re-generates a new law, it immediately has imposed
upon it ‘A Law’ confounding the interpretative process. This is a pseudo-herme-
neutic game comprising a set of tricky rhetorical maneuvers! Jewish Law due to its
hybrid nature can function pragmatically within the limits of its contradictions. In
the eyes of Jewish law, any possible moral questioning (that might expose the
observant subject to the danger of facing a genuine quest for a personal ethical
interpretation) is considered a sin. Thus, for the purpose of distancing the observ-
ant subject from imaginative reading leading to unruly moral thinking, an esoteric
hermeneutics followed by rhetorical spins was elaborated. In devising self-executing
formalities Jewish hermeneutics ascertain the meaning as possessed by the last
word. Lyotard asks: if deconstruction is about something badly constructed, how
can deconstruction deconstruct a text which cannot be amended?7
Hence, keeping the ‘thinking subject’ within the boundaries of the same written
texts, supervised by the religious institutions, epitomize the ‘people of the book’
as the ‘people of the one and the same book’. They are literate but not know-
ledgeable. Conceiving themselves as the ‘light of the nations’, they fail to show any
 Judaism in the no man’s land between law and ethics 61

eagerness to be enlightened. Judaic zeal for abstract signification, the refusal to

supply presentation for the unpresentable interferes with a capacity to speculate
with ideas.
Actually, Judaism is oriented towards a preserved text, the poetic dimension
taking the form of learning by rote, whose meanings are sealed under a stern and
authoritarian trait which prevents any chance of mutual relationship with the
surrounding cultural world. This is a process of diverting aesthetics and ethics into
a narrow path of strict obedience.
In a world of more than one church, morality will always bend in response to
various personal moral intuitions or groups’ value judgment. Interpretations,
which by their very nature are coupled with moral intuitions, extend the text
beyond its limits, beyond its agenda, breaking through, pushing forward its
message onto new regions and opening up scenes for fresh thought. Thus, any
unauthorized interpretation becomes a crucial danger to the Law. In the realm of
western liberal democracy, when it comes to justice, we are witnessing a severe
tendency towards dismissing ethics and morality in favor of legal maneuvers:
cf. Douzinas: ‘Any contamination of law by value will compromise its ability to turn social
and political conflict into manageable technical disputes about the meaning and applicability of
pre-existing public rules.’8
In Judaism, which lacks the dynamic action of bringing language to its essence,
this is called ‘Halachah Law’. Jewish law resembles formalism in the sense of devising
self-executing formalities which leave in advance very little leeway for unfolding
independent initiatives which might agitate the whole system. Heidegger’s insistence
on ‘bringing language back to its essence’ implicitly opposes Jewish ‘formalism’. It
is a call for ‘letting the essence of language resonate in the human saying’, fully
assenting to the Word of Being, to what remains concealed. It does not mean the
governing of Being as representation, but rather as a universal understanding of
what human beings have in common which are the binding relations of language.
In his notion of the word ‘Kehre’ Heidegger approaches language as ‘bound up with
time, but space, or rather taking place, dwelling, techne as the art of forestry and agriculture, the
‘‘field’’ of language, cannot betray’.9 This is what guides a community of people to be
the ‘guardians of Being’.
The essence of language means that the said is always suffused with silence and
mystery, and mystery relates to ‘Being’ as the unspeakable to the spoken. Judaism’s
grasp of the Word falls far short of Heidegger’s insight regarding the inescapable
submission to language as an uncontrolled passage from ‘Being’ to Ereignis.10
Judaic persistence on acquiescent relation to the Word and its submission to what
is engraved in stone militates against an open hermeneutical game. A biblical
testimony is durable and cannot be touched. While Heidegger conceives language
as a concern about things coming into themselves by belonging together, Jewish
hermeneutics’ fear of uncontrolled intuitions grasped by language blocks the
access to ethical considerations, which naturally bind Ereignis to interpretation.
Fish detects a mutual relationship between meanings established through the
interpretative process, and how meanings shape the course of interpretation itself.11
62 Law and art: justice, ethics and aesthetics

Interpretation, as attached to ethical considerations, may end in inter-subjective

conclusions regarding what ought to be done.
Just think of the distinctive nature of the Ten Commandments and its auto-
nomous existence as self-declaring. Moreover, the autonomy of the Decalogue
cannot be threatened by any auxiliary system. Presenting the Ten Commandments
as an ethical Text delivered from heaven, exemplifies how in the name of justice,
moral intuitions are replaced by scrupulous piety. For more than 2500 years the
world was suffused with the myth of justice and social welfare which the Ten
Commandments bestowed upon it. The fact that the Decalogue does not define sin
in terms of ethical and moral conduct, but replaces ethical wrangling with dutiful
obedience, suggests an irreconcilable gap between Hellenism and Judaism. From
a careful re-reading of the Ten Commandments, an all-embracing intention to
disconnect human beings from their natural instincts, impulses and natural drives,
can be revealed.
To start with the commandment that tells us to respect and love our parents.
We love our parents instinctively, but rebel their authority through many life epi-
sodes. This ethical intricate burden that was relentlessly reconsidered by Greek
mythology and tragedy, is delivered as an imperative, which excludes an ethical
battling with the ‘given’. To be commanded to respect our parents in exchange for
being rewarded with long life in the Promised Land does not sound like a revela-
tion of truth and justice. Likewise with the ‘Sabbath’ commandment: in the ancient
world the tillers of the soil had to plough, sow and reap. Once the tears and toils
of farming and growing were ended by joy, they celebrated with feasts of wine and
dances. The harmony of man and nature was signified by the rhythm of nature’s
passing seasons, hoping for balance in a soft way. After sweating in the fields,
people took a rest to rejoice. To punctuate peoples’ lives by six days of ‘labour’ and
‘rest’ on the seventh is not such a great socially beneficient legislation. Notably on
the Sabbath Jews are not allowed to ignite fire or to move from one place to another;
in Judaism things cannot be left alone for a moment.
It is precisely the realm of ethics, and value judgment, which manifest a critical
threat to the Jewish Law. Actually, the pagans as ordinary human beings, craved
for the good life on earth and some kind of salvation in the afterlife. Despite being
involved in wars and political battles, they sought to live decent lives. The values
of self-control, courage, decency, civility, respect to parents and to the old, obedience
to magistrates, and the submission to the laws are consistently venerated in most
of the ancient pagan texts.
Jewish monotheism is distinct not only from the Pagan world but also from
Christianity. Regarding themselves as chosen, Jews were oriented to differentiate
themselves from the gentiles whom they held in contempt. Christianity as a univer-
sal religion enables the believer to contemplate ethically without the interference of
supremacist postures.
Subsequently, Judaic system of law is an impoverished system of justice. Even
the six tomes of the Talmud are in fact a collection of behavioral guidance which
scarcely engages in ethical issues or with an attempt to exercise moral intuitions.
 Judaism in the no man’s land between law and ethics 63

Hence, there are some disturbing questions to raise: If Jewish scholarship, including
its oral offshoots and the Talmud, should, as declared by the Jews, be accredited as
a universal wisdom which embraces ethics and morality, why is it that the more
Jews are wrapped up in this erudition, the more segregated they turn out to be?
How can ethical thinking mesh with learning that leads to segregation? Is it possible
for a genuine sincere ethical reflection to distance its bearers from ‘thinking Being’?
Isn’t it likely that where there is no care for the external world and for human
beings outside the tribe the call for ethical thought is silenced? Is it the Judaic sup-
pression of ‘the image’ and the submission to the Word, which is recognized as the
reign of intellectuality over sensuality that distances its bearers from being in tune
with earth and heaven?
For some reason Judaism lacks the notion of civil society. In Judaism the
political, the intellectual and the cultural are all fused into the interest of an
authoritarian power. Instead of supplying proper arguments, Jewish learning
unfolds a series of fables and allegories. ‘Ethics’ says Lyotard, ‘should be free of all
motivating pathos’.12 The submission to the Word ends in an ethical obliviousness
while the legal discourse prevails. That’s why, despite Jewish thinkers’ attempts to
persuade European intellectuals how to extract wisdom from Jewish traditional
sources,13 the Talmud never evolved into an essential part of western intellectual
thought.
The polemic argumentative image of the Talmud disguises a tradition of
chewing ready-made disputes. Jewish Rabbinic school is not renowned for chal-
lenging the pupil with questions which should train him to think for himself. The
way of learning is: the pupil asks the teacher for his opinion, and tries to memorize
the views of all different authorities. Opinions of previous scholars are faithfully
preserved verbatim citing the rabbi who first uttered it. Hence, while grieving the
forgotten wisdom of the Talmud, Jewish scholars disguise its formal judicial nature.
The Jewish Law is not founded in a moral or an ethical conception of man; but
rather as a set of regulations which grew out of social conditions and cultic motives
obsolete and no longer understood.
The Jews, who praise themselves for rescuing the oriental world from the
cruelties of paganism, actually impersonated their own mental picture of an
invisible God as a simulacrum of an oriental pitiless tyrant that grounds His power
in the Mosaic Law. In fact, this conception of God is the most ingenious device
ever invented for cementing a group. It is a mastermind’s indestructible strategy,
that in combining repression with gratitude, it authorizes a perfect scheme for
self-preservation.
Bultmann’s insightful interpretation of the word ‘hope’ in Jewish aspiration
highlights the content of the word as the ‘end of earthly things accompanied by
the glory of God and his chosen people’.14 ‘Hope’ in Judaism does not appear in
political, judicial or economical terms. What is signified as ‘Hope’ by Judaism
contradicts the sense of ‘anxiety’ and ‘caring’ for the sake of ‘Being’. Without
compassion for the real world, as Bultmann suggests, hope and obedience are
supporting each other. Despite the prophets’ leading idea that blind adherence to
64 Law and art: justice, ethics and aesthetics

the law is not as important as the understanding of its meaning, in accord with the
Jewish verse that ‘there is no sooner or later in the Torah’, the laws, national historical
stories and prophecies are all considered as one unity. In Judaism as a national
religion, cultural constraints and personal requirements are construed in legalist
terms and in accordance with God’s will. In ancient times the Israelites’ country was
God’s country, Israel’s wars were God’s wars, and so Israel’s welfare was conditional
upon obedience to the rigorous legislation of daily life.15 In later Judaism, under
the socio-political conditions imposed by their host countries, despite the fact that
the guiding code which shaped the cult and rites were no longer understood, they
were strictly preserved and sanctified by rabbinic authority.
A Jewish scholar who studies the Jewish scriptures day and night is supposed to
achieve a virtuous fluent competence in the ocean of obsolete interpretations
bringing together rigid rules of conduct with a never-ending endeavour. A proficient
Jewish scholar is expected to fiddle with the Torah of life – ‘TORAT HAIM’ – in
order to adapt segregated Jewish life to its exiled surroundings. ‘Just because conduct
is not determined by unified intelligible basic principle but is regulated by the formal authority of
the Law, the task of the scribe is to ‘‘make a fence around the Torah’’, that is, by endless acute
doctrines from scripture to find rules for cases not foreseen in the Law, which never confront men
in their present life’.16 Oddly enough, the Talmud, which kept the Jews literate, also
served as a vehicle for bending their own Law.
Right from the beginning, Mosaic monotheism aimed at achieving a complete
grip on Jewish daily life. In the shma Israel (Hear, O Israel) prayer, in the name of
God Israel is told ‘. . . you must love the Lord your God with all your heart and soul and
strength. . . . when you lie down and when you rise’ (Deuteronomy 6:4–8).17 This double-
bind imperative, i.e., loving God coupled with dread, imposes indebtedness for
being bestowed with stolen treasures.18 The spirit of the Jewish religion was not
really inspired by ideas, but rather by a covenantal pact of conditional activities
which took over all aspects of the peoples’ behavior. Bultmann describes how
Israelites’ life was characterized by ritual holiness. The national leaders were not
politicians but interpreters of scriptures: those who articulated the law and regu-
lated the rules for daily life.19 God’s Law is valid eternally, in the same form in
which it was delivered by Moses. Once Law is intermingled with religious obedi-
ence, lacking a consistent call for ‘The Good’, no further development is possible.
Actually, it hints at the Judaic innate failure at ethical vigilance. We should note
that many secular Jews (though non-observant), still follow the Jewish rites, and
maintain the same vague admiration for Judaic latent wisdom. This brainwashing
regarding the intellectual intensity of the Talmudic pilpul20 is sustained by a pre-
determined common ignorance.21 Most sections of Jews are convinced that
Judaism is a caring compassionate religion. Repeatedly Jews refer to western social
regulations in favor of the poor and the deprived sections of the community as if
they derive from the Holy Bible. They keep citing the Ten Commandments as if
Jewish monotheism has revealed social justice to the uncivilized ancient world.
We should bear in mind that rabbinic tradition did not reveal a sincere
endeavor to supply an intelligible moral meaning for the arbitrary Jewish Laws.22
 Judaism in the no man’s land between law and ethics 65

While decision-making is typically authorized by tribal needs or personal greed,

moral issues are approached pragmatically in terms of profit/loss calculations.
The observant Jew, who is not necessarily a believer, is immersed in a meritocratic
faith, i.e., that the good man who piles-up good deeds, such as being a charitable
contributor of alms, praying and fasting will be rewarded.23 Relations with God
are conceived in contractual terms: good deeds are measured against bad, as in
a business balance sheet.24 Bultmann points to the disturbing nature of obedient
ethics: ‘As an ethic of obedience the Jewish morality was not designed from the human standpoint;
that its purpose is not the realization of an ideal of man or of humanity. It is definitely opposed to
humanistic ethics, for it is not man but only the glory of god is important’.25
The Talmud, which is praised by Jews as one of the greatest works of human
intellectuality, actually adopted only the façade of a deductive inference. But while
Euclidean conclusive statements (theorems) are derived from a set of key postulates,
Talmudic scholarship lacks these main features of logical coherence. Hence, rab-
binic scholarship is a collection of polemical arguments preserved under a cloak of
logical discourse. In reality, the Talmud is a huge collection of polemics regarding
formalities, where coherent theological discourse regarding morality or ethics can
rarely be found.
Morality in Judaism is not conceived according to philosophical ideas. A crav-
ing for the good, as bound to the glory of God, is matched by an absence of reflec-
tive doctrine regarding the term ‘virtue’. This Jewish morality, perceived in terms
of action – and not as one of the virtues of the ‘ideal man’, differs entirely from that
in Greek Thought. According to Bultmann, ‘The motive of obedience, is, then something
which a man dependent on himself, as the Greek conceived him, cannot possess, for he recognizes
no authority to which there could be any question of obedience; he knows only the Law of the
perfecting of his own nature by his own achievement.’26
Full devotion based on fear leaves no other way for the trembling Jew but to
propitiate this unconditional ‘God authority’ by praise and ostentatious obedience.
But then, how is it possible to find moral satisfaction when generated by dread
rather than love?27 There are no love relationships in Judaism. What does God’s
‘Love’ mean, if it is consistently associated with intimidation and fright? It is what
differentiates people who are inspired by the god within from those who are led by
the pillars of ‘cloud and fire’.
The quest for the ‘Kingdom of God’ under a guiding divinity which presents
good versus evil as a binary opposition, is a sediment infused into Christianity, and
which throughout two thousand years of monotheism, has estranged people from
their human nature.28 The idea of the ‘good’ as independent of man’s will entirely
opposes the Greeks’ striving for the ‘highest good’ in an ethical sense. Thus, whilst
Greek wisdom inspired Westerners’ thought through twenty-five centuries, the
Old Testament’s contribution to personal ethical reflection can be entirely dis-
missed. It is a mystery how this all-pervasive error that ploughed a furrow of
mental detachment has prevailed all through history. A serious quest to decipher the
comprehensive intensive triumph of Jewish monotheism over western civilization
is yet to come. Although all through the generations Judaism’s effect made a definite
66 Law and art: justice, ethics and aesthetics

impression, it did not develop into an intellectual pursuit enunciated in philo-

sophical terms.
The Law flourishes on the ruins of ethics. Heidegger opined that the more
people are immersed in legalism, the more they quit the embrace of ‘Being’. When
complete enslavement to textual signification becomes intermingled with cere-
monial blindness, there is no room for thinking the sublime: poiesis is constrained
and a sense of beauty will atrophy.
Likewise, Lyotard highlights the oddity regarding secular Jews, who adhere to
the Law even more than their observant brothers. For the secular ‘non-Jewish
Jews’ who not only question, but betray the tradition: ‘the fact that the sacred is dead is
the very beginning of their Law’29 The Law does not signify ‘Truth’ and ‘Truth’ is not
correctness. On the contrary, correctness is the shadowing of truth that obliterates
the prospects of justice, and stains reality with blind spots.
The term ‘Law’ can be portrayed in descriptive or in prescriptive terms. The
first, which applies to the Law of Nature, is: a natural order whose eternal repeti-
tive nature is open to intellectual apprehension; the second refers to: a set of
behavioral regulatory rules imposed by a legislative authority. The first stresses a
resemblance between ‘laws of nature’ and legislative laws; which reflects a univer-
sal quest for order. Though its basic meaning is descriptive, the way to enforce it
by legislation is prescriptive. In Judaism, where God’s revelation in nature is not
conceived as orderly systematic intellectual apprehension of natural events (but
rather through unnatural occurrences), the first connotation is distorted. Therefore
Judaism clings to a fuzzy notion of the term ‘Law’: it may evoke the wonder of the
psalmist, but it silences ‘the voice of reason’.30
Heidegger focused on phronesis, as more important than episteme to politics,31
and on judgment as reflective rather than determinant. ‘If the political is a mimesis
(fashioning) . . . meaning cannot be presented, present cannot be signified, all incarnation is illu-
siory to the extent that it ‘‘unveils the retreat of Being”’.32 The thought cannot actualize the
return of the disappeared, it can only watch (over) the Forgotten so it remains
unforgettable. Here the problem with the Jews can be detected: it is the Jews who
waver between the forgotten and the unforgettable promise. Instead of being the
‘guardians of Being’, they turned into the guardians of ‘not-forgetting-the-forgot-
ten’. ‘The Jews’ are the hostages of their own memorials, distorting justice in the
name of ‘The Law’. In asserting that every Jew is a bad ‘Jew’ – a bad witness to
what cannot be represented – ‘just like all texts fail to reinscribe what has not been
inscribed’,33 Lyotard brings up the Jewish ‘fugitive’ towards the law. The loss of the
signifier, which results in referring to justice in legal terms, ends with the betrayal
of the essence of Justice. While legalism is anchored within rules, justice is an
object of an idea. While an ethical judgment is a game without rules, the Law is a
linguistic ‘fashioning’, elevated to a supreme sacred stage of secular fundamental-
ism. It creates a thought that cannot think, as the unforgettable that continues to
forget itself.
Schleiermacher noted that hermeneutics should be seen simultaneously as
‘art’, and as the perfection of the moral experience.34 As a creative understanding
 Judaism in the no man’s land between law and ethics 67

of a text, not in grammatical terms but as an epic act, hermeneutics endorses with
the aesthetic pleasure.
Hermeneutics that deals with the part and the whole triggers a sensitive effec-
tive historical consciousness. Only subordination to the entire text can inspire an
innovative interpretation of its sections. The ethical act, just like the aesthetic act,
is simultaneously: a manifestation of reason, intuition and the pleasurable thrill
when personal identity reveals itself. Jewish traditional learning lacks that aes-
thetic insightful facet where a mediated understanding of the whole is shown by its
peculiarities. Hermeneutics as an ethical and an aesthetic obligatory mission
becomes paralyzed under Judaic ambience.
In the context of justification of a statement, the Judaic elimination of the
figurative referent imposes a validation procedure that follows the criteria of
coherence.35 But what sounds productive in science is less recommended when it
comes to an ethical judgment. Lyotard pinpoints the ambiguity of the Jewish
approach to the law as ‘mired in a schizophrenic self-denying contradiction’.36 In
an attempt to be right, fair, honest and acting justifiably, the legal system has to
refer to particular operational indicators. The hallmark of legalism is its attempt
to sound clear, obvious and precise. As a religion comprehended in legal terms,
Judaism lacks this operational factor. It is impossible for ‘rightness’, ‘fairness’ and
‘honesty’ to be embraced solely within a literal verbal scene.
Unlike morality, which involves relations between the concrete ‘I’ and the con-
crete ‘other’ as conditioned upon group values, ethics belongs to the realm of the
inexpressible. Ethics reveals itself in an attempt to maintain a fair, right, or just
conduct despite the written, inscribed, or spoken word. If ethics manifest itself in
the twilight zone where universalism surrenders particularism, under a pluralist
imperative how can Judaism, which resists 'pluralism’, make an ethical act happen?
Actually, there is no viable way forward for moral philosophy to develop in Judaic
scholarship.
Yet, in the western legal system the criteria of justice, as grounded in universal
morality, is faced with a crucial challenge: how to compromise the claim for uni-
versality with the multicultural demands of auxiliary moral norms? Or, in other
words, how does one reconcile a legal system grounded in universal norms, with
alternative systems which undermine its universal self conviction? While univer-
salism asserts moral imperatives as valid for all human beings, particularism
endorses other sets of moral norms which draw their authority and legitimacy
from alternative, incommensurable sources (such as holy scriptures, or oral trad-
itions) with poor prospects of conciliation.
Since the scientific revolution, the tendency to equate legalism with morality
and ethics is linked with the idea of human beings as endowed with the ability to
make rational judgment without being biased by prejudices or superstitions. This
view divides mainstream Enlightenment approaches from Judaism (and Islam) in
a nonnegotiable clash.37
Opposing this widespread liberal departure point, Lyotard38 points out that,
assuming that all legalities can be reduced to the ground of rational reasoning,
68 Law and art: justice, ethics and aesthetics

this means that all conflicts should be considered as litigations, as if there were a
neutral route enabling an objective resolution of any conflict.39 Lyotard coins the
concept of the ‘Differend’ for those irritable unresolved conflicts which persist due
to a ‘lack of a rule of judgment applicable to the discourses at issue’. Grasping
language as a limitation of reality, the ‘Differend’ raises our awareness of unmarked
communication. While The ‘Differend’ signals silence, litigation maintains the pos-
sibility of settling an argument by using phrases from a common rule. But, when
conflicts are signaled as litigations, differences are ignored, and transgressed. In
the context of Liberalism that celebrates the autonomous, rational subject, an
inherent tendency to replace any conflict of a ‘Differend’ by litigation can be easily
exposed. The ‘Differend’ resembles a rope-walker passing over a viper’s nest of the
legal system. Liberal Legal traditions consider universal norms as a predetermined
condition for a dialogue that leads to the participants’ ‘consensus’. A tendency to
define conflicts as litigation reflects an attempt to effect closure in the political
public sphere. Despite its legalistic nature, the controversy between Jewish Law
and Liberal jurisprudence presents a characteristic case of a ‘Differend’. Judaic,
arbitrary, capricious dicta are neither challenged by ethical thought, nor by theo-
logical questioning. And that is what distinguishes Judaism from liberalism and
the Christian world. Legalism and ethics cannot be reconciled. Legalism, devoid
of ethics, means ant-like blind obedience; whilst ignoring the law for being ‘ethi-
cal’ is egocentric and a-social. Theology was invented to affect a compromise
between authoritarian religious law and human instincts. The suppression of the-
ology in Judaic tradition dovetails with a completely subservient choice.
Furthermore, Jewish law, as differing from civic law (which is capable of reformu-
lating itself to correspond with a changeable environment), lacks the ability to
regenerate itself. Mosaic Law resides forever. ‘The Jew’ is claimed by God in his
entirety and in every conceivable contingency.
Since Judaism and Islam share the same view regarding human beings as
spoken subjects rather than self-defining individuals, both religions reject the
notion of democracy which views the human subject as a unitary free agent.
Yet, Islam is not a tribal religion; it is established on the love of God, which guides
the believer towards compassion, forgiveness and mercy. Judaic tribalism as
distinct from Islam, bestows upon the Jews a special status in the eyes of God.
Thus, despite the similarities, Judaic righteousness, as distinct from Islam,
requires a strictly God-fearing obedience motivated not by love but by the fear of
a jealous, resentful power. The Bible even commands the children of Israel to
annihilate all those in the neighborhood who worship other gods: ‘In the cities of
these nations whose land the Lord your God is giving you as patrimony, you shall not leave any
creature alive. You shall annihilate them . . . – as the Lord your God commanded you . . .’40
Among incompatible groups who resist the western legal system, Judaism is most
uncompromising.
The book of Job is considered to be one of the most sophisticated and profound
literary works of the Old Testament; yet it is the only book which contains a theo-
logical discussion regarding God’s justice, ethics and moral standards. We read the
 Judaism in the no man’s land between law and ethics 69

book to find out how Job’s children are killed, his servants slaughtered: Job himself
is brought to the brink of death, his wife and his friends deny him any support and
understanding. Thus, from the depths of his misery, Job meets with a stone wall,
to discover that his complaints cannot obtain a hearing from the judge who is so
much praised for his justice. Whilst foul deeds follow one another in quick succes-
sion – robbery, physical injury, murder – the denial of fair trial is the worst of all.
How appalling that Yahweh displays neither remorse nor compassion.41
If this is indeed a lesson God teaches us about fairness, the question is: why are
people in court asked to swear upon a book which presents us with such heartless
injustice? On this matter Jung justly asserts that God himself: ‘. . . flagrantly violates
at least three of the commandments he himself gave out on Mount Sinai.’42
Job’s only guilt lies in his incurable optimism, in that he regards God as a moral
being. It is an instructive lesson about ‘A God’ who claiming to harangue the
world by persecuting a miserable sufferer, squatting in ashes, and scratching his
sores with potsherds. The conclusion to be drawn from this pitiless story is that
God is far more preoccupied with a manifestation of His might than sustaining
His right.43 The Bible, pre-occupied as it is with righteous qualities and the ways
to be rewarded, is exposed as alien to the notion of moral personality.44 The Judaic
lack of ethical thought as revealed in the book of Job, hints at an inability to com-
prehend the notion of an ‘ideal’ society.
This Discussion on ethics pictured a craving for the ‘Lost Paradise’: the ideal
community of the Greek polis epitomizing collaboration between free individuals
and collective harmony. A stance that links ethics to politics requires the know-
ledge of the ‘right’: of what ‘The Good’ means in terms of duty and loyalty. The
ethos of the polis as the guide for the ‘good life’ while not being grounded in strict
rules, is entirely hostile to the Jewish doctrine of man not being allowed to ques-
tion God’s purposefulness. The chasm between the Greek approach to politics as
an inherent link between human wisdom and ethics, and the Judaic one which
replaces ‘human virtues’ with submission to God’s arbitrariness in establishing a
just society, exemplifies (again) a case of a ‘Differend’: this is where, on the one side,
are placed those who believe in ‘religio naturalis’ (an innate inborn sixth sense of
justice), and, on the other side, those who are indoctrinated by an acculturistic
dogma releasing them from the anguish of ethical vigilance: thus, the ‘Differend’
mark of silence that inflicts muteness by the plea of political correctness. Any
attempt to combat this case of the ‘Differend’ is immediately denounced as anti-
Semitism.
In the disparity between Augustine’s idealization of the ‘City of God’ and the
Greeks’ polis, the former seems to correspond with Jerusalem as the site at war with
the pagan’s addiction to false gods. By believing that only a righteous community, led
by the church, can establish a society whose public motives are inspired by God,
nevertheless, Augustine’s stance is still far from the Judaic position. No community
can exist without justice of some sort. Compliant with the Greek idea that human
beings can be directed to justice by commonsense and reason, then, justice cannot
be acquired through blind learning or strict obedience. It is only by allowing freedom
70 Law and art: justice, ethics and aesthetics

of the mind (as applied to rhetoric and sharpening the faculties of reason) that justice
can be experienced. Thus, politics is the rhetorical product of exercising options with
the view to the realization of the ‘good’. And ethics are aimed to orient politics
towards the ‘common good’ and collaboration within a community. In other words,
politics is grounded within ethical deliberations.
In Augustine’s view, politics is not conditioned upon practical human reason-
ing, but rather upon submission to theological determinants. Augustine’s cynical
realism was later found in Hobbes’ secular philosophy, replacing ethics with the
civil law as legislated by the ruler and seen as the source of stability. This is how
the fuzzy confusion between the legal and the ethical started. Insisting on human
rationality, secular Enlightenment replaced ethical vigilance with the law; and
moral norms were purposely confused with ethical cautions. Liberal Social institu-
tions, founded upon Enlightenment secular ideology regarding human rationality
and common sense, ordained a civil law which, because it is rational, is assumed
to be just.
The legal system legitimized itself by embracing a calculative culture necessi-
tated by evidential proofs and supported by factual data. Here we again meet the
intricacies of Judaic religion which, despite being conceived in legalistic terms,
celebrates the primacy of the ear over visual representation. Hence, disregarding
the vividness of the referent leaves the subject sealed in a segregated bubble,
impelled into an incurable detachment.
The replacement of theology by secular philosophy enforced an official legal-
ization of the authority of the law by ethical endorsement. Conversely, Jewish
scholars were never tormented with questions concerning the legitimization of
their law, or with the approval of their authoritarian power. One of the most
praised skills of Jewish scholarship is a controversial competence; i.e. the ability to
mask the irrational nature of Jewish legislative doctrines.
Jewish communities in Europe did not share with their hosts the same belief in
human rationality. They did not acknowledge the secular assumption which
regards human reason as a safeguard for a just society. Neither did they share with
their Christian neighbors the conviction that the love of God should be the core
for ethical thought.
The seclusion of science and art blocks the comprehension of ‘the beautiful’,
including what ‘justice’ stands for. The rejection of the aesthetic and the ethic,
denies the Jewish subject the access to judge.
Contrary to the doctrines of the law, ethics, just like aesthetics, have no rules for
justification. Even if there are rules for moral consideration, they are inaccessible,
by their ethical nature. Ethical judgment falls between dogma and the unexpected
event, ‘where the case must be found for the rule, or the rule for the case’.45 Ethical judgment
cannot be taught, it must be exercised, for the more we judge, the better we judge.
To wrestle with an exceptional case calls for the ethical judgment to alleviate the
abuse of dogmas and doctrines. Thereby, it is how vigilant awareness by taking a
skeptical stance, defends itself against inert doctrines. If ‘Doctrines weave a spell that
prefigures death’ then insomnia prevents us from forgetfulness!46 The ethical judgment
 Judaism in the no man’s land between law and ethics 71

requires a conscientious attempt to contemplate ‘a case’ from more than that one
route paved by the law. If the ethical means ‘response-ability’ towards what is
exterior to myself in a deferral of conclusive decisiveness, how is it possible for
people who are confident about the moral inferiority of others, to cogitate a decid-
able/undecidable uncanny venture?
In this paper I focused on Judaism, as dichotomous from Hellenism and from
the other two monotheistic religions. The Jews are homeless; but they are fright-
ened by uncanniness. Although regarding themselves as ‘citizens of the world’,
they feel most secure within the walls of their mental ghetto. ‘Otherness’ is a
threat, the non-Jewish neighbor is considered as hostile. Lacking the sense of
‘otherness’, they shield themselves behind a cultural barrier, where the ‘good virtues’
are suppressed by covenantal ceremonies.
In the no man’s land between Law and Ethics, is it not much too dangerous for
a people who lack the care for Being, to manifest itself as a political-national
entity?

Notes
1 See M. Heidegger, Introduction to Metaphysics, G. Fried and R. Polt (trans.), New Haven:
Yale University Press, 2000, pp. 159–76.
2 On ‘revealing-concealing’ contemplation see: Aletheia (Heraclitus, Fragment B 16) in
M. Heidegger, Early Greek Thinking, trans. D. Farrell Krell and F. A. Capuzzi, New
York: Harper & Row, 1989, pp. 102–122.
3 Heidegger grasps human beings as an event in a reciprocal violent struggle between dik e-
the governing order of ‘Being’, and techne- as the violence of knowledge. For a broader
discussion on the subject, see C. Fynsk, Heidegger: Thought and Historicity, Ithaca and
London: Cornell University Press, 1993, p. 120.
4 According to Schleiermacher, hermeneutics as the ‘art of understanding’ is a dynamic
process of ‘feeling’ and ‘divining’ language as a living power that affects the fabric of
thought. See F. D. E. Schleiermacher, H. Kimmerle (ed), Hermeneutics: The Handwritten
Manuscripts, trans. J. Duke and J. Forstman, American Academy of Religion, Missoula,
Montana: Scholars Press, 1977, p. 35.
5 S. Fish, ‘The Law Wishes to have a Formal Existence’, in Alan Norrie (ed.), Closure and
Critique, Edinburgh: Edinburgh University Press, 1993, pp. 157–74.
6 Ibid., p. 158.
7 See J-F. Lyotard, Heidegger and ‘the Jews’, Minneapolis: University of Minnesota Press,
1988, p. 81.
8 C. Douzinas, Postmodernity and Critical Legal Studies, London: Routledge, 1994, p. 17.
9 Lyotard, Heidegger and ‘the Jews’, op cit., p. 92.
10 Ereignis meaning bringing forth an event.
11 Fish, ‘The Law Wishes to have a Formal Existence’, Closure and Critique, op cit., p. 167.
12 J-F. Lyotard, ‘The sign of History’, in A. Benjamin (ed.), The Lyotard Reader, Oxford:
Basil Blackwell, 1989, p. 404.
13 I refer to Ernest Bloch, Immanuel Levinas and Franz Rosenzweig.
14 R. Bultmann, Primitive Christianity, London: The Fontana Library, 1960.
15 Ibid., p. 40.
16 R. Bultmann, Jesus and the Word, London & Glasgow: Fontana Books, 1958, p. 56.
17 New English Bible, The Old Testament, 1970.
18 Deuteronomy 6:10–12.
72 Law and art: justice, ethics and aesthetics

19 Bultmann, Primitive Christianity, op cit., p. 72.

20 ‘Pilpul’ refers to the learning of the Talmud through intense textual analysis in an attempt
either to explain or reconcile conceptual disputes between Halachic rulings.
21 While observant Orthodox Jews reject external knowledge, secular Jews are not famil-
iar with the Jewish scriptures.
22 Influenced by Greek thinking, Hellenist Judaism attempted to make the law more
meaningful.
23 Avoth 2, 16.
24 The central trait of Judaism is that the good conduct should not be motivated by
rewards but by obedience and the fear of God. The attitude of ‘punishment and reward’
was more popular with illiterate people.
25 Bultmann, Jesus and the Word, op cit., p. 55.
26 Ibid., pp. 57–58.
27 While the good virtues of the ideal man are described in universal terms, the Jewish
righteous Tzadik is a spiritual figure enlightened by God’s justice (tzedek).
28 See The Collected works of C. G. Jung, Psychology and Religion: West and East, London
and Henley: Routledge & Kegan Paul, 1977, Vol. 11, sec 605, p. 385.
29 Lyotard, Heidegger and ‘the Jews’, p. 93.
30 Bultmann, Primitive Christianity, op cit., p. 18.
31 The knowledge which Aristotle calls phronesis, differs from episteme as a systematic
understanding.
32 Lyotard, Heidegger and ‘the Jews’, op cit., p. 79.
33 Ibid., p. 81.
34 On the link between hermeneutics and phenomenology see: Schleiermacher,
Hermeneutics: The Handwritten Manuscripts, pp. 91–117. More on hermeneutic as the art of
understanding as related to ethics see F. D. E. Schleiermacher, Hermeneutics and criticism
and other Writings, in A. Bowie (ed), Cambridge: Cambridge University Press, 1998,
pp. 5–29.
35 In the context of justification of a statement by the criteria of correspondence or by coher-
ence, in the Jewish scene the latter wins.
36 Lyotard, ‘Figure Foreclosed’, The Lyotard Reader, pp. 69–110.
37 The two main routes language capture reality, representation and simulation, reflect
two images of man (as an ‘individual’ or as a ‘subject’). The poststructuralist view that
grasps the subject as constituted by the text, differs from the Judaic position that
approach the subject as spoken by immutable texts.
38 See J-F. Lyotard, The Differend: Phrases in Dispute, Minneapolis: University of Minnesota
Press, 1988.
39 See J-F. Lyotard, ‘Judiciousness in Dispute, or Kant after Marx’, The Lyotard Reader, op
cit., pp. 326–59.
40 The Israelites are commanded to exterminate all seven nations of Canaan – Hittites,
Girgashites, Amorites, Canaanites, Perizzites, Hivites and Jebusites, see Deuteronomy,
7:1–2: so that ‘they may not teach you to imitate all the abominable things that they have done for their
gods and so cause you to sin against the Lord your God’. Deuteronomy 20:16. See New English
Bible, The Old Testament, 1970.
41 C. G. Jung, Psychology and Religion: West and East, Vol. 11, section 581, p. 376.
42 Ibid., section 584, p. 377.
43 Ibid., section 586, p. 379.
44 Philo of Alexandria tried to reconcile Judaism with Greek philosophy.
45 Lyotard, ‘Judiciousness in dispute, or, Kant after Marx’, op cit., pp. 333–4.
46 Ibid., p. 331.
Chapter 4

Seizing truths
Art, politics, law
Igor Stramignoni

Woher, in aller Welt, bei dieser Constellation der Trieb zur Wahrheit!
[Nietzsche]

Quel sera le destin de la pensée, Dont on sait bien qu’elle est invention affirmative,
Ou qu’elle n’est pas?
[Badiou]

Introduction
The invitation to consider the relationship between art and law is, after all, a
philosophical invitation, a question for thought.1 Or is it? The scene, it appears,
was set long ago, when in Plato’s Republic Socrates first issues Homer, the great
poet of antiquity, with the rather biting indictment of having been neither a
Lycurgus nor a Solon, and then proceeds to banish poetry from the city except
when it comes to ‘hymns to the gods and eulogies to good people’ or else, when it
is readmitted because ‘it has successfully defended itself, whether in lyric or any
other meter’.2 It is thus commencing with Plato that the city comes to be seen as
fundamentally separate from, and better a world than that of art and that, by
implication, law comes to be understood as not poetry.3 Here we are still in the
business of naming, and it will take Aristotle to turn naming into categories and
then the praetor’s edictum to turn categories into persons, things, and actions (personae,
res, actiones) – as Cicero shows and Gaius records. Thus the centre and cynosure of
Roman social thought becomes Psyche,4 no longer a spirit like in antiquity (thymos)
nor even a mooting people at the heart of the Greek polis (demos) but instead a
principal actor, a model disposition (persona), on the bigger stage of that actor’s
world and of its laws.
The die is cast, the wound within opened, the walls without erected. The citizen
(civis) must not, or no longer, be a poet and so, from now on and for a long time to
come, recourse to poets and to poetry and to their authority or knowledge (auctoritas
poetarum) must be treated with contempt by philosophy, politics, and law. For even
Virgil, it is now feared, may prove a misleading witness (falsus testis). Or else because,
74 Law and art: justice, ethics and aesthetics

even more annoyingly for some, ‘thus do many who know nothing yet manage to
earn twice as much money as those who have the correct knowledge’ (sic faciunt
multi qui nihil sciunt, sed lucrantur bis tamen quam illi qui bene sciunt). From now on and
for a long time to come, then, the city and its laws will evoke poets and poetry only
so as to be able to banish them, in the hope of affirming or reaffirming thus their
own command or their own legitimacy, if often not their own prestige.
This long-standing arrangement went through several important permutations
in the Western world but its deeper significance was to be questioned upon what
Jean-François Lyotard famously called the ‘linguistic turn’ of Western thought.
Earlier on Newton had explained, Descartes doubted, and Kant transcended but
it was probably Nietzsche the last metaphysician (as Heidegger was to argue) or,
indeed, the first of a new and expansive breed of thinkers to submit fully to the
ultimate effect of modernity by actually venturing or wandering into a dimmed or
darkening world whereby, it appeared, the breakdown of any primordial notion
of authority or tradition had paved the way to the lessening or loosening of the
authority or grip of any old and modern philosophical truth, scientific knowledge,
political arrangement, artistic creation, and even amorous declaration. In that
gloomier or no longer so luminous a world, the idea of art of course but also that
of ethics, jurisprudence, or law sink back into their embodied or finite histories
and from there into the turmoil of their individual or collective memories and to
the clamour, or perhaps the murmur, of their voices. They become, in Nietzsche’s
famous expression, figurative all the way down (even Hobbes might have agreed
with that). Thus if indeed ‘the effort of social thought and philosophy since the
Enlightenment can be described as an epic effort to ground knowledge and truth
in a new age of radical rootlessness and doubt’,5 the key question gradually if
unevenly becomes not just what specific languages citizens or legislators as opposed
to poets might speak but also, ironically, what languages might speak something
like ‘politics’ ‘law’ or ‘art’, ‘citizens’ ‘legislators’ or ‘poets’, and even ‘reason’ or
‘unreason’, for example. Politically that meant, for some, the need of multiplying
their efforts in order to rediscover the human or even just the common in ethics,
aesthetics, or justice while, for others, the question clearly required attending to
the margins of the Western subject or even removing to the ‘open’. At a time when
the human exploitation of life on earth has reached an unparalleled intensity,
others have concluded instead that it is technology (as techne) that speaks, or that so
often speaks, the language of many languages. And so then it is technology that
might provide the missing link or, depending on one’s views, inaugurate the
hidden tensions that are supposed to exist today between, for example, the world
of law and the world of art.

The return of philosophy?

That is of course a highly selective and probably insufficient picture of what really
happened during much of the twentieth century. However, the point here is neither
to map out such a complex event as the linguistic turn nor to debate whether such
 Seizing truths: art, politics, law 75

turn was, after all, more persuasive in its various analytic instantiations or in its
equally numerous continental ones, nor, finally, to consider whether or not the
latter could be seriously regarded to be eminently ‘American’, as Cusset perhaps
understandably suggests.6 Instead the point here is to register how by the begin-
ning of the twenty-first century the model of language, Frédéric Worms has
recently argued, appears to be dwindling.7 For Worms, the present moment
(moment présent) appears to be marked by a return of philosophy and of history
(réprise) and, on the other hand, a return of philosophy and of the life sciences.8
The question then – and it must remain an open question, at least for now – is less
whether we are in for a return to such disciplines – if there is one thing that the
linguistic turn will have conclusively demonstrated that is just how porous the
boundaries of disciplines can be – than it is, one might argue, to examine how
those fields of inquiry might be shaping up in the aftermath of an event that ‘hit’
them so hard and cannot therefore be ignored nor, for that matter, revoked into
doubt. Language, one feels, is here to stay, at least for the time being. The more
interesting problem, then, would be whether anything else has happened which
might help us think the contemporary situation and so, here, the relationship
between art and law, the poet and the city, afresh.
In such a fluid or confused situation – whereby the ‘confusion’ (confusion) seems
to belong to the present rather than to any particular field of inquiry such as, for
example, philosophy or history9 – the work of French philosopher Alain Badiou
occupies a unique position for its continued defence and imaginative deployment
of a certain Platonism. In a short but powerful text published in 1992 and entitled
The (Re)turn of Philosophy Itself, Badiou sums up his general thesis regarding philosophy
in four key points. The first one is that philosophy itself must recommence. The
second point is that (intriguingly) philosophy must break with historicism:
‘Philosophy must determine itself in such a way as to judge its history itself, and not
to have its history judge it’.10 The third point is that a definition of philosophy does
in fact exist and can be distinguished from both early and latter-day or postmodern
philosophical sophistry. Early sophists ‘maintain that thought is . . . either effects
of discourse, language games, or the silent indication, the pure ‘showing’ of some-
thing subtracted from the clutches of language’.11 Latter-day sophists, by contrast,
argue for ‘a general equivalence of discourses, a rule of virtuosity and obliquity’
attempting ‘to compromise the very idea of truth in the fall of historic narratives’
and critiquing Hegel and philosophy itself ‘to the benefit of art, or Right, or an
immemorial or unutterable Law’.12 In general, Badiou warns, sophists should be
taken with a pinch of salt insofar as they seek ‘to set the strength of the rule, and,
more broadly, modalities of the linguistic authority of the Law against the revelation
or production of the true’.13 Finally, the fourth and perhaps most important point
is that there are truths after all, and that to stand by that evidence is neither to embrace
the sort of idealism criticised by a certain Marxism, nor to subscribe to Heidegger’s
historical meditation, nor, finally, to turn yet again to Plato’s mathematical objects
and to what Anglo-Saxon analytical philosophy might dismiss as a ‘metaphysics of
the supra-sensible’.14
76 Law and art: justice, ethics and aesthetics

What then is Badiou up to? Badiou’s four theses are designed to declare the end
of the end of philosophy and so to reopen ‘the Plato question . . . to examine
whether it is not by an other Platonic gesture that our future thinking must be
supported’.15 Such a gesture would recognise how the operational or logical Truth
of Platonic philosophy is that in the beginning there are truths that philosophy will
have subsequently declared to be compossible.16 Or, philosophy is, in a way that
will have to be further examined, a possible and necessary yet purely subtractive
operation designed to produce the effect of Truth as against the effect of sense and
an operation, moreover, that is ‘driven by the intensity of love without an object’
and by means of ‘a persuasive strategy without any stakes in power’.17
Thus for Badiou the question of the relationship between art and law, the poet
and the city, becomes at first a question of recognising that there are truths after all and,
then, a question of thinking four distinctive truth procedures in their ontological,
logical, and subjective dimensions:

We shall thus posit that there are four conditions of philosophy, and that the
lack of a single one gives rise to its dissipation, just as the emergence of all four
conditioned its apparition. These conditions are: the matheme, the poeme,
political invention and love. We shall call the set of these conditions generic
procedures.18

Such a striking task presents at least two preliminary challenges for those who
are interested in the question of the relationship between art and law as this might
present itself from Badiou’s point of view. On the one hand, Badiou’s critique
seems to be built on the assumption of a continuity between legal and political
arrangements that some legal and political theorists might find difficult to recog-
nise, let alone accept.19 And indeed Badiou, by lumping up politics and law, might
smack some of the sophistry he otherwise appears to criticise. On the other hand,
Badiou’s critique could be seen to reinstate philosophy, and for no obvious reason,
into its long-standing aspiration to arbitrate over that ancient quarrel between the
city and the poet that Stanley Rosen has recently re-examined.20 And yet, Badiou’s
philosophy – which, he never tires of repeating, does not produce truths of its own
but merely ‘configurates the becoming-disparate of the system of its conditions by
construction of a space of thoughts of the time’21 – may be attractive precisely
because we live in a time when global capitalism seems to have brought about a
hazy state of fragmentation that, oddly enough, leaves us stranded with a some-
what limited alternative between the rather disconcerting spectacle of an endless
number of paradoxical or, at best, self-referential legal, political, artistic, and other
domains (or even eigenvalues), and on the other hand an equally endless albeit con-
trasting horizon of overlapping discourses or regimes such as that of the political,
the juridical, the cultural, and so on and so forth. In such an obviously unsus-
tainable situation, are those domains or those overlapping discourses or regimes
not in need to be thought afresh, and otherwise? Can we think that which pertains
to art, politics, and law separately and yet together rather than treating them,
 Seizing truths: art, politics, law 77

by contrast, either as essentially different or as essentially in-different worlds, that

is to say, in a way that either hopelessly would accelerate their reciprocal isolation
or that, alternatively, would dissipate them into a baffling communicative con-
tinuum where no difference is, ultimately, really possible or even perhaps desirable?
And indeed, is there an alternative to the danger of complacent introspection that
is somehow unavoidable in difference and even more in self-reference and, on the
other hand, to the equally obscure danger of giving up on thinking altogether?
An account, however thorough, of the relationship between art and law, the
city and the poet, in the work of Alain Badiou may not provide a direct answer to
those broader and, to my mind, pressing questions but it can illuminate them
somewhat. As we will see, art and law are distinct domains for Badiou and yet like
other domains such as science or love, their links and modes of operation can only
be properly shown for him upon certain preliminary steps that will subtract their
objects from the apparently all-encompassing, late-modern empire of language
and then disseminate them afresh or, in an alternative scenario, leave them to age
and to perish. One might wonder why Badiou wishes to insist on such a singular
and complex project. The short answer is that such steps seem necessary as today
the poets (and Badiou, one might argue) may have conquered the city but the city
on the other hand, no longer seems to be such in any recognizable sense of that
ancient word. In such extraordinary circumstances, the question for Badiou must
be: what can be done next?
On that note, it is worth adding perhaps that Badiou’s recent publication of
numerous new essays, as well as the publication of Logiques des mondes (Part II of his
earlier major work, L’être et l’événement), are being hotly debated, unsurprisingly
in my view, well beyond the narrow corridors of academia. Indeed, Badiou’s
work may well offer, to quote Peter Hallward, the ‘most powerful alternative yet
conceived in France to the various forms of postmodernism that arose after the
collapse of the Marxist project’.22 For Alberto Toscano, ‘Badiou presents us with
what is perhaps the most effective critique of the very conditions for what has
become the nostalgic, crepuscular, and ultimately reactionary tonality of much of
European philosophy’.23 For Christopher Norris, ‘Badiou’s thinking is remarkable
chiefly for taking so strong and principled a stand against just about every major
direction of the present-day philosophic tide’.24 And finally Peter Goodrich admits,
albeit one suspects obtorto collo, that ‘Badiou has taken over the coveted spot of
regnant French philosopher in the Anglophone world’.25

Art, philosophy and truth

Art occupies a somewhat enigmatic place in Badiou’s oeuvre. On the one hand,
Badiou argues, art qua language has, since Nietzsche, Wittgenstein, and Heidegger,
adopted or even appropriated certain functions that thus far had been on the
whole the domain of philosophy qua (metaphysical) thought. And yet, Badiou
also argues, the age of the poets is now completed and so philosophy must be
untied or desutured from art.26 On the other hand, however, art and in particular
78 Law and art: justice, ethics and aesthetics

poetry remains central to Badiou’s philosophy, both as a key form of truth-event

(together, that is, with science, politics, and love) and insofar as the poem, he
explains, ‘is language itself, in its solitary exposition as an exception to the noise
that has usurped the place of comprehension’.27 Thus, one might say, art is not
philosophy for Badiou, and yet the value of that negation, the value of that ‘not’,
lies not in the exclusion, or in the overcoming, or even for example in what Jean-
Luc Nancy might call l’être abandonné or Giorgio Agamben la messa al bando of the
poet by the city but rather in something like a recognition or foregrounding of the
‘thought of the poem’ itself, along with that of the thought of ontology or science
(the matheme), of the thought of politics (the political invention), and of the
thought of love.28 Art then is ‘not’ philosophy in that art for Badiou is art and
philosophy is philosophy. Here Badiou’s thought operates in my view an almost
imperceptible yet crucial shift from banishment in all its forms and even from, say,
subjection to an exception – the rather problematic template at the heart of so much
social thought since the rediscovery in recent years of Carl Schmitt’s contributions
to constitutional theory – to a more eventful or joyful differentiation by subtraction,
and in so doing he steps away from both the Platonic, Hegelian or Marxian traditions
of Western thought and their subsequent, early or late ‘sophistic’ alternatives or
reversals.
That is clearly a signal move in all sorts of ways (I shall return to this shortly) but
it is especially salient here if one is fully to grasp Badiou’s highly distinctive take on
art and philosophy. To be sure, philosophy for Badiou has always been tempted
by poetry, and so poetry has always been ‘the precise equivalent of a symptom’ for
philosophy.29 But poetry is a symptom not, as tradition would have it, because
poetry imitates while philosophy does in fact speak the truth but rather because
poetry is a ‘properly incalculable thought’, wholly other than thought proper
(the matheme).30 Art then is not philosophy and philosophy is not art – and neither
are matheme, political invention, or love. Instead for Badiou they all sit together,
as it were, sovereign in respect of one another and so, in some sense, largely uncon-
cerned by one another, and that is what is most attractive for philosophy which
in turn must make their different thoughts manifest in their compossibility.31
Take the Preface to the Italian edition of his Manifeste pour la philosophie:

Philosophy is the place of thought where the ‘there are’ of truths and their
compossibility are declared. To that end, philosophy sets up an operative
category, Truth, which opens up within thought an active void. Such a void
is identified on the basis of the reverse of a sequence . . . and of the beyond
of a limit. Philosophy, as discourse, operates thus a superimposition of two
fictions, one cognitive and one artistic.32

Badiou’s move is clear. Philosophy amounts to a subtractive or ‘nocturnal’

discourse operating as a form of poetic as well as cognitive fiction.33 That is to
say, philosophical discourse for Badiou must aim to be both rigorous and inven-
tive rather than either rigorous (strictly philosophical) or inventive (wholly poetic).
 Seizing truths: art, politics, law 79

And ‘[i]n the void opened up by the gap or interval between the two fictions, philo-
sophy seizes the truths. This seizing is its act’.34 Thus philosophy is the rigorous
and inventive seizing of truths that becomes possible in the space opened between
knowledge and art. As fiction of knowledge, Badiou explains, philosophical dis-
course qua discourse of truth imitates the matheme. As fiction of art, on the other
hand, philosophical discourse imitates poetry.35 Finally philosophy imitates an
objectless love through the intensity of its seizing. And as that which is directed
towards all, philosophy imitates a political strategy without the power.36 Philosophy
in other words must be a stating to all, in a rigorous and poetic and passionate
way, that there are truths after all.
In his Petit manuel d’inesthetique Badiou looks specifically into the relationship of
art and philosophy once art and philosophy are distinguished again or indeed
returned to themselves (in a manner of speaking), and he puts forward the thesis
according to which art should now be understood as a ‘truth procedure sui generis,
both immanent and singular’.37 This, he argues, would be an entirely novel philo-
sophical proposition in a century that, for all its ‘endings, breaks, and catastro-
phes’, did not really depart from the three existing schemata of that relationship.38
Even Deleuze, Badiou controversially adds, fails to appreciate the true extent to
which art is both immanent and singular and so, consequently, the extent to which
art thinks. And the reason is (deceptively) simple. ‘This is because’, Badiou explains,
‘if one fails to summon the category of truth in this affair, one cannot hope to succeed
in establishing the plane of immanence from which the differentiation between
art, science, and philosophy can proceed’.39 Thus the category of truth is needed
if one is successfully to tell art, science, or philosophy apart from one another.40
For Badiou, the first of the three existing schemata of the relationship between
philosophy and art is the didactic one whose twentieth-century expression is exem-
plified, he argues, by Brecht’s Marxist and ‘scientific’ theatre which, in its insist-
ence on searching for the immanent rules of art produced ‘an artistic invention of
the first calibre within the reflexive element of a subordination of art’.41 According
to this first didactic schema ‘art is incapable of truth, or . . . all truth is external to
art’.42 That is to say, art and philosophy are clearly separate endeavours in a hier-
archical or at least in a mutually exclusive position vis-à-vis one another. Or, art
would be here like Lacan’s Hysteric in his or her relationship to the Master. It
would seek to present itself in its nakedness to the philosopher, asking the philoso-
pher to tell them who they are. Although charmed by it, the philosopher however
would ultimately reject art’s seduction on account that art in this way would con-
stitute not just an imitation of things but, somewhat more problematically, an
imitation of the effect of truth. The charge here would be as straightforward as it
would be damning.

If truth can exist as charm, then we are fated to lose the force of dialectical
labor, of the slow argumentation that prepares the way for the ascent to
Principle. We must therefore denounce the supposedly immediate truth of art
as a false truth, as the semblance that belongs to the effect of truth.43
80 Law and art: justice, ethics and aesthetics

In alternative to subjecting itself to philosophy only to be rejected by it, Badiou

adds, art in the didactic scheme would be permitted by philosophy insofar as
it would undertake to be educational and so remain under philosophy’s control.
In such case, ‘the ‘‘good’’ essence of art is conveyed in its public effect, and not in
the artwork itself ’.44
In the second, romantic schema, Badiou continues, art alone is capable of truth.
In the twentieth century the romantic schema finds a home, above all, within
Heideggerian hermeneutics according to which the poet is sovereign and

the thinker is nothing but the announcement of a reversal, the promise of the
advent of the gods at the height of our distress, and the retroactive elucidation
of the historicality of being. While the poet, in the flesh of language, maintains
the effaced guarding of the Open.45

Thus interpretation and poem in the romantic schema coincide or, which is the
same, art is held to amount to the body itself of truth, or to the absolute subject, or
true incarnation. Therefore art, not philosophy, would have the task of educating
us, namely by explaining how the power of infinity is held captive by form and so
delivering us ‘from the subjective barrenness of the concept’.46
If the first didactic schema hystericises art and the second romantic one glori-
fies it, then the third schema, the classical or Aristotelian schema, Badiou argues,
dehystericises art.47 Such schema is found, for example, in psychoanalysis and
specifically in Freud’s analyses of painting or in Lacan’s externations regarding
poetry and the theatre.48 While concurring with the didactic schema that art is
incapable of truth, the classical schema finds such predicament to be unproblem-
atic insofar as art, according to it, does not in fact claim to be truth. Neither
revelatory nor cognitive, art’s function is, in the classical schema, therapeutic.
Thus if it is liked, art is good for the classical schema and whether or not it is actually
true is irrelevant insofar as the artwork is liked as true. Here, in the classical schema,
art is ‘entirely exhausted by its act or by its public operation’.49 Art becomes quite
literally a service and an educational one at that.
So these are the three schemata of the relationship between philosophy and
art which, according to Badiou, were available throughout the whole of the
twentieth century. But that is not all. At the turn of a century – which, Badiou
concludes, was simultaneously conservative and eclectic – we are however
left with the saturation of the three existing schemata (the didactic, the romantic,
and the classic) and attendant disrelation of art and philosophy, but also with
the closure represented by a sort of synthetic, ubiquitous, didactico-romantic
schema. Which, then, would be the way out of this rather unsatisfactory situation
that may indeed turn out to have as a deadly effect that of paralyzing thought for
good? The way out would be to recognise the relationship of art and philosophy
as marked by both the immanent and the singular character of art–this would
be Badiou’s own suggestion, Badiou’s own schema–and specifically to recognise
art as
 Seizing truths: art, politics, law 81

a truth procedure . . . a thought in which artworks are the Real (and not the
effect). And this thought, or rather the truths that it activates, are irreducible
to other truths – be they scientific, political, or amorous. This also means that
art, as a singular regime of thought, is irreducible to philosophy.50

And what about the pedagogical function of art? In Badiou’s own and unique
schema that function would be laid bare by its arrangement of extant knowledge
and subsequent exposure of some truth within. Art here would still educate us, but
it would educate us to nothing else than its own existence and in so doing, it would
educate us to encounter thought, or else to think through a form of thought or,
which is the same, to think thought [penser une pensée] through an artistic proce-
dure’s own singular way.51
At this point, one final question is in order. Which would be the appropriate
unit of an immanent and singular art such as that which Badiou points out to? The
artwork, no doubt, is ‘the only finite thing that exists’ which is precisely why,
Badiou argues, the artwork cannot be what will allow us to think ‘art’ in a truly
inventive way. Thus art is not the artwork while, at the same time, certain works will
one day have been found to be the work of art (in short, art always precedes a work
of art for Badiou, or which is the same there is no artwork before art). Furthermore,
art for Badiou must never be thought independently of a prior event – quoting
Mallarmé, for example, Badiou reminds us how ‘made, existing, [the poem] takes
place all alone’52 – under pain of falling head-on into an ‘idealistic conception of
invention’ that Badiou (who is a materialist after all) cannot but reject.53 Thus art
always presents itself as first of all a coherent, surprising, and ‘elevated’ event (élevé)
rather than becoming apparent as something that had always already been there,
albeit under a different guise.54 And in turn, as a ‘fact of art’ (not an event) and, as
such, as ‘the local instance or differential point of a truth’ (not, therefore, a truth),
an artwork is what Badiou now designates as the subject of an artistic procedure or,
which is the same, ‘the subject point of an artistic truth’.55
Here, an appreciation of the gesture by which Badiou seeks to return philosophy
to philosophy and art to art (the sort of gesture Worms may be referring to when he
writes about the return of something like philosophy) is necessary for the eventual
grasp of the relationship of art and law in his work. One consequence of that initial
gesture is that, for Badiou, the sole being of an artistic truth is the being of works as
these weave being together after the event and ‘by the chance of their successive
occurrences’.56 Thus works are for Badiou enquiries about truths and, as such, they
are retroactively validated as real works of art whenever it is ascertained that such
enquiries are new. Secondly, artistic truths are, then, ‘artistic configurations initiated
by an event . . . and unfolded through chance in the form of the works that serve as
its subjects points’.57 Importantly, a configuration is, for Badiou, an ‘identifiable
sequence’ rather than an art form, a genre or objective period in the history of art,
or a technical dispositif.58 Thus, for example, the evental rupture of Greek tragedy,
for Badiou, bears the name ‘Aeschylus’ understood as the index of a central void in
the previous situation of choral poetry and as the initial event of tragedy as the
82 Law and art: justice, ethics and aesthetics

configuration or identifiable sequence that runs from Plato or Aristotle to Nietzsche

and which, however, reaches its point of saturation with Euripides.59 Thirdly and
lastly, it cannot be for philosophy to think an artistic configuration. Rather, ‘a config-
uration thinks itself in the works that compose it’.60 A work or inquiry, in other words, tests
an artistic configuration as this will have been upon its infinite completion and,
in so doing, lets art be ‘the thinking of the thought that itself is’.61
The overall result of Badiou’s inaugural gesture in relation to art is that art is
now successfully desutured from philosophy. And philosophy for its part has now
been reassigned its job which in relation to art must now be to show how art is
each time reinvented, repositioned, or opened up again, and so neither to banish
it (for what, after all, is to think art in the traditional way if not to exclude it from
the city?) nor, for example, to subject itself to it, to subject itself to an exception
that, ironically, has become the rule. But if, as Badiou is adamant to stress, one
should have the courage to declare that art is art and philosophy is philosophy,
how then is the relationship of art and law vis-à-vis one another?
One has to consider first how, in Badiou’s oeuvre, politics plays out against
the law.

Law and politics

The purpose of this section is not so much to present a detailed analysis of
Badiou’s views on law or on politics per se as to offer some sense of their interplay,
as a broad step towards a certain grasp of the way art and law, the poet and the
city, appear to be related in his work.
Our starting point must be the law understood generally as the traditional and
perhaps the most visible instrument of government deployed by Western societies
on their passage to modernity. However, it is true that Badiou himself refers
sparingly to the legal rules and legal institutions of modernity, whether in their
adjudicative, legislative, or administrative incarnations.62 For Badiou, as for Marx,
modern capitalism leads to the expropriation of the means of production by some
which then the State in parliamentary democracy upholds and, through its laws
and legal institutions, enforces and defends.63 Thus the law for Badiou belongs to
the language of the situation and it is therefore always predicative, particular, and
partial.64 It is, as he succinctly puts it, the cipher of a finitude (le chiffre d’une finitude).65
Intimations of Badiou’s consequent suspicion of the law are scattered throughout
his works. So for example a law banning the use of the hijab at school is a law
required by capital insofar as it seeks to appropriate the femininity of a minority
of young Muslim teenagers by instructing them to become exposed or unveiled as
if commodities on show in the market place.66 Likewise, a law sorting out and then
expelling those who are short of all the required documents (sans papiers) from
those who, by contrast, can exhibit those documents, and so can stay, cannot be
said to be the law of a truly democratic country.67 And finally a party system that
turns necessity into a figure of choice should not be surprised to discover that voters
in a referendum might decide against a law they do not actually want.68 As these
 Seizing truths: art, politics, law 83

examples show any explicit or implicit concern Badiou might have with the
laws and legal institutions of modern Western societies is routinely caught up in
a more fundamental concern with the State, with parliamentary democracy and
so today with the ‘political’ (le politique) or what Badiou famously calls ‘capitalo-
parliamentarism’ (capitalo-parlamentarisme).69 Under capitalo-parliamentarism,
Badiou thunders, there is nothing but management and law. ‘[T]he rest’, he
concludes, ‘is literature’.70
Badiou of course has always been concerned by the political which for him is
to be firmly distinguished from politics proper (la politique).71 In a series of lectures
held at the Ecole Normale Supérieure in Paris on the occasion of the 2007 elections of
the new French President, Badiou reflects for example on what he perceives to be
the ambiguous or porous nature of the electoral mechanism in contemporary
parliamentary democracies, that is to say, a mechanism that lies at the heart of the
political.72 In the face of such ambiguity or porosity, which paradoxically may
turn voting into an instrument of oppression and of exclusion rather than one of
emancipation and of participation, Badiou urges the abandonment of any illusion
about it and the embracement instead of eight key points, the most important of
which would be that ‘there is’ after all ‘one world’.73 Such a deceptively simple
overturning of the premises from which to start an analysis of the contemporary
situation – such moving away from an anxious concern with difference towards a
positive, even optimistic thinking of the Same – is, Badiou explains, what may be
really at stake in world politics today.
Others of course have maintained, like Badiou, that politics is to be clearly
distinguished from the political. Indeed, such a distinction appears to be running
through the whole of what is often termed ‘left-Heideggerian’, or genealogical, or
interpretive, or postmodern, or deconstructive, or ‘post-foundational’ political
thought74 and, obversely, through the political philosophy of the likes of Carl
Schmitt.75 However for Badiou real politics does not dwell at the threshold of, or
next to, or in the interstices of, or elsewhere than, or at the margins of, the political,
nor does it become utterly impotent or, alternatively, nuda vita vis-à-vis the political
in the state of emergency.76 All to the contrary, real politics for Badiou eschews the
political insofar as today what is presented by that name is a particular yet highly
unstable mode (the State) of a particular yet highly unstable politics (parliamen-
tarism) legitimated by a particular yet highly unstable definition of plurality
(pluralism) and regulated by three particular yet highly unstable norms (economy,
the nation, and democracy). The political coincides, for Badiou, with a no doubt
potent but ultimately ineffective reification of politics that is carried out or at least
encouraged by the particular political philosophy that has reigned sovereign and
apparently unchallenged in contemporary parliamentary democracies and that
holds ‘politics – or, better still, the political – as an objective datum, or even invariant,
of universal experience’.77
By contrast real politics for Badiou is a ‘subjective, intense activity that is
capable of producing novel truths’.78 Therefore politics is always pluralistic and
always brought about by multiple subjects who become such by virtue of their
84 Law and art: justice, ethics and aesthetics

own singular relationship to a truth-event. Above all, politics is a tearing away of

the vacant surface of language which goes to form the ‘state of the situation’.79 But
what is the state of the situation? Structures for Badiou are certain inconsistent
multiplicities that will have been counted as one. Thus inconsistency is at once the
precondition and the residue of structural unification, as Badiou sees it. Yet struc-
tures are inexorably haunted by the void they overshadow but cannot suppress. In
set theory terms, such void is neither a term nor the whole, neither something
local nor something global, but rather a ‘part’ or sub-multiple that is included but
does not belong.80 So if the void – ‘which is the name of inconsistency in the situ-
ation’ and which continually haunts presentation – is to be however superficially
warded off, the structure of the situation needs not only to be presented but also
to be re-presented as such.81 Ontologically then the state of the situation is ‘that
by means of which the structure of a situation – of any structured presentation
whatsoever – is counted as one, which is to say the one of the one-effect itself, or
what Hegel calls the One-One’.82 Or again it is ‘the riposte to the void obtained
by the count-as-one of its parts [which] proposes a clause of closure and security,
through which the situation consists according to the one’.83 Finally, the state of the
situation is always a separate or transcendental entity vis-à-vis the initial structure
of the situation but, also and at the same time, the state of the situation is of that
structure, immanent to it. That is to say, the state of the situation is both distinct
from and linked to the initial structure so that this is ‘furnished with a fictional
being: the latter banishes, or so it appears, the peril of the void, and establishes the
reign, since completeness is numbered, of the universal security of the one’.84
Politically, on the other hand, the State for Badiou is, with Marxism, a structure
of domination defined by a principle of counting that is ultimately removed from
or uninterested in – and yet, at the same time, historically tied up with – the indi-
viduals it counts. Thus the State is ‘the law that guarantees that there is Oneness’
and that ‘re-presents what has already been presented’.85 And yet, against Marxism and
with Hobbes, the State for Badiou ‘is not founded upon the social bond, which it would
express, but rather upon un-binding, which it prohibits’.86 Thus the politics that follows on
a political event will have been a dialectical interrupting of the State’s ubiquitous
representation of the situation that in turn will have triggered ‘a show of power by
the State’ and so, then, will have put ‘the State at a distance, in the distance of its
measure’.87 Politics, in other words, is not the political but that which opens up a
gap or a wound in the body of the dominant political fiction and, in so doing,
Oliver Marchart notes, ‘touches on the real’.88 Or, politics is that which designates
the order of truth and of the political event, and not, as is the case for Jean-Luc
Nancy and Philippe Lacoue-Labarthe, the order of power and of police.89
Thus instead of attempting to build one world out of the inevitable fragmentation
and individuation sought out and fostered by modern capitalism and supported
by democracy as this is normally understood, the question for Badiou would be
how to declare the existence of one world, of one indivisible world that belongs to
everybody, and so finally of a world that will have existed, all machinations to the
contrary notwithstanding, even as these are supported, as they often are, by one
 Seizing truths: art, politics, law 85

form or another of repression or violence. In a world continuously broken down

into nothing else than things and linguistic signs the attempt must be to declare
that nevertheless, ‘there is one world’ where differences will be taken to be that
which constitutes the world rather than that which divides it – such is what Badiou
calls the ‘transcendental’ of the world whose immanent logical law it also is – and
where particular laws exist that, however, are never really a condition to be part
of that world:

You might say that there are the laws of each country to take into account.
Indeed. But a law is something completely different from a precondition.
A law applies equally to all; it does not set a precondition for belonging to the
world. It is simply a provisional rule that exists in a particular region of the
single world. And no one is asked to love a law, simply to obey it.90

Here, Badiou’s grasp of law in contemporary Western societies might seem to

be exceedingly French, permissible though such an interpretation would other-
wise be from a political and philosophical viewpoint privileging history or even
historicality and culture over ontology, logic, and subjectivity. But it is not clear
that Badiou has gone that far yet, or indeed that he will ever go that far (although
he has indicated that he is aware of the task that may be lying ahead), for the
reason perhaps that ironically it is politics, not the political, that constitutes the
heartland of Badiou’s own politics. And true political events did in the past and
can always lay bare in the future thus far unseen or unthinkable possibilities for
politics.
Nevertheless, we should by now begin to see in some more detail Badiou’s
complex if largely inexplicit position regarding the relationship of law and politics.
To start with, while law is on the side of the political, politics for Badiou is not.
Secondly, real politics and the political (the city and its laws) are, appearances to
the contrary notwithstanding, not just separate realms but also something of a
scandal or obstacle to one another – a scandal or obstacle which both sides must
deal with yet neither side can probably remove. And so just as politics must con-
tinuously dispel political fictions insofar at least as the political insists on projecting
the particular überfiction of parliamentary democracy at the expenses of infinite
multiplicity, so, conversely, the political seeks at all times to overcome real politics
insofar as the political needs to keep out that which by contrast politics is always
intent on reintroducing.91 And I would argue, one duty of philosophical thought
is for Badiou to highlight just that. It is to highlight how the political blots out the
world even if, on the surface, it appears to be seeking to represent it,92 whereas
politics, by contrast, hopes to reinvigorate the world and to motivate it again even
when, on the surface, it may appear to be seeking to disrupt it.
For Badiou, the city and its laws seek to disconnect from politics rather than to
organize it, as they claim to do, whether through consent or otherwise. And there
lies for Badiou the crux of the problem where politics are concerned. Again, many
would be forgiven for thinking that to be, in and of itself, hardly a new problem in
86 Law and art: justice, ethics and aesthetics

political philosophy. And yet Badiou does not stop there and against much of
today’s political-philosophical thought declares that the situation is never static
and it is always changing, so that politics can in fact at anytime re-emerge from
the dark – upon, that is, the occurrence of what he calls a ‘truth-event’ – and with
philosophy in its trail come back on the scene and reinvent things, reposition
people, and so finally reopen the game.

Democracy and art

In the Preface to the Italian edition of the Manifeste pour la philosophie Badiou goes
back to what are possibly the two key turnings of his thought. First, there is a
category of Truth that, Badiou guarantees, constitutes an absolute novelty in
philosophy and, importantly, is able to eschew all ways of Nietzschean criticisms
levelled at metaphysical thought by being neither correspondence, nor coherence,
nor usefulness, nor even unconcealment, but rather generic singularity. Secondly,
there is the acknowledgement that language is important but there is the con-
viction, too, that language is not all and it is certainly not the transcendental
condition of thought that old and new sophists alike claim it to be. Instead cru-
cially, ‘it is from the trajectory of a truth that the linguistic invention proceeds, and
not the other way round’.93 Or, as Badiou puts it in another essay, ‘[a] world,
for Plato as well as for myself, can only become visible through the differences
constructed within it, and singularly through the difference, in the first place
between a truth and an opinion, and secondly between two truths whose type is
not the same’.94
So for Badiou truth is the hottest thing in town today. On that score what is at
stake for him today in the relationship between the poet and the city, between art
and law? Again, his answer appears to be both untimely and complex. It is
untimely in that Badiou speaks the language of a certain Platonism rather than
those belonging to what he would describe as the ‘Jewish’ discourse, or the ‘Greek’
one, or the ‘mystical’ one.95 Additionally, there is a complex answer, insofar as
Badiou’s vision is premised upon the occurrence of an event as rare and momentous
as it will have been, by Badiou’s own reckoning, entirely an ephemeral one. Thus
Badiou’s Platonism is, one might say, strangely relational – it is formalistic, but it
is also relational.
At this point, one thing still to stress here might be that no answer can in fact
be offered to the question of the relationship between art and law in the work of
Alain Badiou – not, at least, until after a specific, signal event has occurred, and
then only for the brief space of a moment, that of the nocturnal collecting of one’s
thoughts and reflections in view of what may have just happened.96 ‘Ultimately’,
Badiou recognizes, ‘the owl of Minerva only takes off when night fall’.97 What that
suggests, however, is that the relationship (for example) of art and law, of the city
and the poet, must be always a singular relationship generally available, as Truths
must be, albeit never universal, as different events must call for different Truths,
and which will be philosophy’s job to make each time manifest in different ways.
 Seizing truths: art, politics, law 87

And yet, such a caveat notwithstanding and until a momentous event will have
happened however fugitively on the horizon, a few preliminary steps might help
us appreciate Badiou’s position on the poet, the city, and its laws.
Firstly, we are invited to think again the relationship of art, philosophy, and
thought or ontology (as matheme), especially in consideration of the now ubiquitous
didactico-romantic suture. Thus philosophy for Badiou is not art and art is not
thought and so art is rather something like a truth procedure immanent to thought
and singular.98
Secondly one must think again the relationship between the political (the city
and its laws) on the one hand, and politics on the other hand. One will then realise
that politics is not the political, and yet it is with politics, not with the political, that
new political truth-events always occur.
Thirdly, philosophy cannot however produce artistic configurations or
political inventions of its own. Or, philosophy can certainly think thought in its
various instantiations (science, politics, art, and love) but these do not need
philosophy to think themselves and, in particular, they do not need philosophy
to think their own respective truths. Thus the common fear that philosophy
might be taking again the didactic position assigned to it by Plato would be
entirely unfounded. Instead, the task of philosophy would be to make new artistic
configurations and new political inventions manifest in their compossibility.
‘Finally, philosophy makes disparate truths compossible and, on that basis, it
states the being of the time in which it operates as the time of the truths that arise
within it’.99
Once taken those steps, an unexpected yet rather exhilarating question might
arise:

This question of the existence of truths (that ‘there be truths’) points to a co-
responsibility of art, which produces truths, and philosophy, which under the
condition that there are truths, is duty-bound to make them manifest. Basically
to make truths manifest means the following: to distinguish truths from opinion.
So that the question today is this and no other: is there something besides
opinion? In other words (one will, or will not, forgive the provocation), is
there something besides our ‘democracies’?100

Thus the relationship between politics and the city and its laws on the one
hand, and between politics and art or artistic configurations on the other hand,
seems to amount, in Badiou’s strictly intra-philosophical discourse, to a subtract-
ive or nocturnal relationship between democracy as we know it, and new forms
of belonging which can and will always emerge from the central void of the contem-
porary situation, and which it will be the philosopher’s duty to make each time
manifest. Quite what those forms of belonging might more specifically amount to,
once philosophy has been de-sutured from art and politics from the political, it is
probably one of the deepest, most interesting, and most promising challenges
raised by Badiou’s unique interventions on art, politics, and law.101 For once the
88 Law and art: justice, ethics and aesthetics

current links between philosophy, art, politics, and law are properly dispelled at
stake in the philosophical examination of the tension in late modernity between
the city and its laws on the one hand, and current artistic configurations and
political inventions on the other, would be precisely this, that is to say, nothing
less than the future state of democracy itself.102 And if, as Badiou poetically puts it,
‘the destiny of thought . . . must be affirmative invention or nothing at all’,103 then
the duty of philosophy must indeed be ‘to reconstitute rationally the reserve of
affirmative infinity that any emancipatory project requires’.104
For Badiou, the truth is that democracy can and must be reinvented, repos-
itioned, or reopened. And that is what the relationship of art and law, the city and
the poet, must be ultimately about. Quite how we might actually get there – how
can art be desutured from philosophy and politics from the political without for
instance then falling prey of what Benjamin long ago dismissed as the aesthetici-
zation of politics – remains perhaps to be properly worked-out by Badiou.105 Still
the stakes, for him, are high and he remains, like a present-day, forward-thinking
Copernicus of sort, faithfully on watch.

N otes
1 A shorter version of this chapter was presented to the symposium on ‘Law and Art:
Ethics, Aesthetics and Justice’, held at the Tate Modern London in March 2010 and
was published in LSE Law, Society and Economy Working Papers 14/2010. For comments,
footnotes, and glosses many thanks to Ray Brassier, Tom Poole, William H. Widen,
and Thanos Zartaloudis. Usual disclaimers apply.
2 Plato, Complete Works, Indianapolis and Cambridge: Hackett, 1997 ( J. M. Cooper and
D. S. Hutchinson). Translations throughout this chapter are my own, unless otherwise
noted.
3 Plato’s law was eminently practical as it becomes clear with The Laws where govern-
ment explicitly becomes that which keeps things ‘humming smoothly in the way they
were started’. See A. Woozley, ‘Plato and the Need of Law’, Philosophical Quarterly 60,
2010, 373–395, 374. For a holistic view of Plato’s philosophy see C. Rowe, Plato and the
Art of Philosophical Writing, Cambridge: Cambridge University Press, 2007.
4 D. R. Kelley, The Human Measure – Social Thought in the Western Legal Tradition, Cambridge,
MA and London: Harvard University Press, 1990, pp. 48–52.
5 C. Douzinas, R. Warrington, and S. McVeigh, Postmodern Jurisprudence – The Law of Text
and Text of Law, London and New York: Routledge, 1991, p. 9. On this effort see
P. Rossi, I segni del tempo – Storia della Terra e storia delle nazione da Hooke a Vico, Milano:
Feltrinelli, 1979.
6 F. Cusset, French Theory – Foucault, Derrida, Deleuze & Cie et les mutations de la vie intellectuelle
aux Etats-Unis, Paris: La Découverte, 2003.
7 F. Worms, La philosophie en France au XX˚ siècle – Moments, Paris: Gallimard, 2009,
pp. 553–571.
8 Worms, Philosophie. Worms focuses on France but a similar trend can be noticed
elsewhere.
9 Worms, Philosophie, p. 555.
10 A. Badiou, ‘The (Re)turn of Philosophy Itself ’, in Manifesto for Philosophy, Albany: SUNY
Press, 1999, trans. by N. Madarasz, pp. 115–116.
11 Badiou, ‘(Re)turn’, p. 116.
12 Badiou, ‘(Re)turn’, p. 117.
 Seizing truths: art, politics, law 89

13 Badiou, ‘(Re)turn’, p. 118. This is not however an out-and-out attack on early or

latter-day sophists: see Badiou, Manifesto, p. 98. An explicit confirmation of Badiou’s
position in respect of the sophists of his age is in A. Badiou, ‘Ouverture’, in Petit panthéon
portatif, Paris: La Fabrique, 2008, pp. 7–11.
14 Badiou, ‘(Re)turn’, p. 121.
15 Badiou, ‘(Re)turn’, p. 122. See A. Toscano, ‘To Have Done with the End of Philosophy’,
Pli 9, 2000, 220–238.
16 ‘The Truth simultaneously designates a plural state of things (there are heterogeneous
truths) and the unity of thought’ (Badiou, ‘(Re)turn’, p. 123).
17 Badiou, ‘(Re)turn’, p. 127.
18 Badiou, Manifesto, p. 35. The ontological dimension is tackled chiefly in A. Badiou, Being
and Event, London and New York: Continuum, 2005, trans. by O. Feltham. The logical
dimension is dealt especially in A. Badiou, The Logic of Worlds, 2009, trans. by
A. Toscano. Finally an important statement of the subjective dimension can be found
in A. Badiou, Theory of the Subject, 2009, trans. by B. Bosteel.
19 M. Shapiro, ‘Law and Politics: The Problem of Boundaries’, in The Oxford Handbook of
Law and Politics, Oxford: Oxford University Press, 2008, pp. 767–774.
20 S. Rosen, The Quarrel between Philosophy and Poetry, New York and London: Routledge,
1988.
21 Badiou, Manifesto, p. 39.
22 P. Hallward, ‘Generic Sovereignty: The Philosophy of Alain Badiou’, Angelaki: Journal of
the Theoretical Humanities, 1469–2899, vol. 3 1998, 87–111.
23 A. Toscano, ‘To Have Done with the End of Philosophy’, PLi: The Warwick Journal of
Philosophy, 9, p. 223.
24 C. Norris, ‘Some Versions of Platonism: Mathematics and Ontology According to
Alain Badiou’, Philosophical Frontiers, 2008, 1–16, 1.
25 P. Goodrich, ‘Preface (On Alain Badiou’s Handwriting)’, Cardozo L. Rev. 29, 2008,
1867–1876.
26 Badiou, Manifesto, pp. 69–77. It is uncertain what Badiou has in mind here – whether
by ‘poets’ he means the avant-gardes of the first part of the twentieth century, or the
‘sophists’ that became prominent in later modernity, or else just the so-called ‘nouveaux
philosophes’ (a largely French phenomenon that is a favourite target of Badiou’s scorn).
Obviously he may have in mind all of the above.
27 A. Badiou, Theoretical Writings, London and New York: Continuum, 2006, pp. 239–248,
p. 241.
28 A. Badiou, Handbook of Inesthetics, Stanford, CA: Stanford University Press, 2005,
pp. 1–15; Theoretical Writings, pp. 241–243; Being and Event, pp. 1–20.
29 Badiou, Theoretical Writings, p. 245. Italics are in the text.
30 Badiou, Theoretical Writings, p. 246.
31 I. Stramignoni, ‘Badiou’s Nocturnal Jurisprudence’, Cardozo L. Rev. 29, 2008, 2361–2393.
32 Manifesto per la filosofia, Napoli: Cronopio, 2008, trans. by F. Elefante, p. 20.
33 I highlight this key poetic quality in Badiou’s otherwise apparently un-poetic or
‘rationalist’ discourse in Stramignoni, ‘Nocturnal Jurisprudence’.
34 Badiou, ‘Prefazione’, p. 20.
35 ‘Prefazione’, p. 20.
36 ‘Prefazione’, p. 20.
37 Badiou, Inesthetics, p. 10.
38 Badiou, Inesthetics, p. 5.
39 Badiou, Inesthetics, p. 10.
40 ‘[T]he principal difficulty in this respect derives from the following point: When one
undertakes the thinking of art as an immanent production of truths, what is the pertinent
90 Law and art: justice, ethics and aesthetics

unity of what is called “art”? Is it the artwork itself, the singularity of a work? Is it
the author, the creator? Or is it something else?’ (Badiou, Inesthetics, p. 10). See also
A. Badiou, ‘The Event in Deleuze’, Parrhesia 2, 2007, pp. 37–44.
41 Badiou, Inesthetics, p. 6. In the didactic schema the relationship of truth to art is
normally singular but not immanent (Badiou, Inesthetics, p. 9).
42 Badiou, Inesthetics, p. 2.
43 Badiou, Inesthetics, p. 2.
44 Badiou, Inesthetics, p. 3.
45 Badiou, Inesthetics, p. 6.
46 Badiou, Inesthetics, p. 3. Hence the relationship of truth to art is, in the romantic schema,
immanent but never singular to it (Badiou, Inesthetics, p. 9).
47 Badiou, Inesthetics, p. 3.
48 ‘In Freud and Lacan, art is conceived as what makes it so that the object of desire,
which is beyond symbolization, can subtractively emerge at the very peak of an act of
symbolization. In its formal bearing, the work leads to the dissipation of the unspeak-
able scintillation of the lost object. In so doing, it ineluctably captivates the gaze or the
hearing of the one who is exposed to it’ (Badiou, Inesthetics, p. 7).
49 Badiou, Inesthetics, p. 5. Thus, in the classical schema truth is neither properly immanent
to art (for it is separate), nor properly singular to it (Badiou, Inesthetics, p. 9).
50 Badiou, Inestethics, p. 9.
51 Badiou, Inesthetics, p. 9.
52 Badiou, Theoretical Writings, p. 240.
53 Badiou, Inesthetics, p. 11.
54 A. Badiou – F. Tarby, La philosophie et l’événement, Germina, 2010, pp. 101–102.
55 Badiou, Inesthetics, p. 12.
56 Badiou, Inesthetics, p. 12.
57 Badiou, Inesthetics, p. 12.
58 Badiou, Inesthetics, p. 13.
59 Badiou, Inesthetics, p. 13. Saturation ‘in no way signifies that said configuration is a
finite multiplicity . . . The rarity of proper names and the brevity of the sequence are
inconsequential empirical data. Besides, beyond the proper names retained as signifi-
cant illustrations of the configuration or as the “dazzling” subject points of its generic
trajectory, there is always a virtually infinite quantity of subject points – minor, ignored,
redundant, and so on – that are no less a part of the immanent truth whose being is
provided by the artistic configuration’ (Badiou, Inesthetics, p. 13).
60 Badiou, Inesthetics, p. 14 (italics in the original).
61 Badiou, Inesthetics, p. 14.
62 However on law see A. Badiou, Saint Paul – The Foundation of Universalism. Badiou’s interest
in the law appears now to be on the rise: see for example A. Badiou, Second manifeste pour
la philosophie, Fayard, 2009.
63 References to law are spread throughout the whole of Badiou’s work. For a recent
statement, see A. Badiou, ‘L’emblème démocratique’, in G. Agamben, A. Badiou,
D. Bensaïd, W. Brown, J.-L. Nancy, J. Rancière, K. Ross, S. Žižek, Démocratie, dans quel
état?, 2009, pp. 15–25.
64 Badiou, Saint Paul, p. 80.
65 Badiou, Saint Paul, p. 85.
66 A. Badiou, ‘Derrière la Loi Foulardiére, la peur’, in Le Monde 22 février 2004. Badiou
develops this elsewhere.
67 A. Badiou, Lazarus, and Michel, ‘Une France pour tous’, in Le Monde 9 décembre 1997.
68 A. Badiou, ‘La Constitution Européen’, Seminar held at ENS on 18 May 2005,
available in English from http://www.lacan.com/badeu.htm (last visited on 21
October 2009).
 Seizing truths: art, politics, law 91

69 The alternative or contrary of democracy, for Badiou, is neither despotism nor

totalitarianism but, rather, that which seeks to subtract collective existence from the
hold (emprise) of democracy (Badiou, ‘L’emblème démocratique’, 24).
70 Badiou, Second manifeste, p. 26.
71 Metapolitics, London and New York: Verso, 2005, trans. by J. Baker.
72 A. Badiou, The Meaning of Sarkozy, 2008, trans. by D. Fernbach. Badiou’s concern with
the electoral process in contemporary democracies is nothing new: see Badiou, Being
and Event, pp. 107–108; Metapolitics, esp. pp. 15–16. See also P. Hallward, ‘Politics and
Philosophy: An Interview with Alain Badiou’, Appendix to A. Badiou, Ethics, London
and New York: Verso, 2001, pp. 97–144.
73 The argument is developed in Badiou, Sarkozy.
74 O. Marchart, Post-foundational Political Thought, Edinburgh: Edinburgh University Press,
2007, pp. 11 ff.
75 C. Schmitt, The Concept of the Political, 1996, p. 36; J. Barker, ‘Translator’s Introduction’,
in Badiou, Metapolitics, p. vii.
76 The list of the available configurations is of course richer than what can be provided
here.
77 Badiou, Metapolitics, p. 10.
78 Interview with Fabien Tarby, in Badiou, La philosophie et l’événement, p. 14.
79 Badiou, Being and Event, pp. 93–111; Metapolitics, pp. 141–152.
80 Badiou, Being and Event, pp. 95–96.
81 Badiou, Being and Event, p. 93.
82 Badiou, Being and Event, p. 95.
83 Badiou, Being and Event, p. 98.
84 Badiou, Being and Event, p. 98.
85 Badiou, Being and Event, pp. 105–106. Italics are the author’s.
86 Badiou, Being and Event, p. 109. Italics are Badiou’s. Badiou agrees with Hobbes in the
following form: ‘if, in a situation (historical or not), it is necessary that the parts
be counted as a metastructure, it is because their excess over the terms, escaping the
initial count, designates a potential place for the fixation of the void’ (Badiou, Being and
Event, p. 109).
87 Badiou, Being and Event, p. 110; Metapolitics, pp. 144–145.
88 Marchart, Post-foundational Political Thought, p. 115.
89 Marchart, Post-foundational Political Thought, p. 119.
90 Badiou, Sarkozy, p. 63.
91 ‘[L]a loi . . . désigne toujours une particularité, donc une différence’ (Badiou, Saint Paul,
p. 80).
92 ‘La loi commande une multiplicité mondaine prédicative, elle donne à chaque partie
du tout ce qui lui est dû’ (Badiou, Saint Paul, p. 82). See generally I. Stramignoni,
‘At the margins of the History of English Law: the institutional, the socio-political, and
the ‘‘blotted-out’’’, 22 (2002) Legal Studies, 420–47.
93 Badiou, ‘Prefazione’.
94 Badiou, ‘L’emblème démocratique’, p. 19.
95 Badiou, Saint Paul, pp. 43–57.
96 Stramignoni, ‘Nocturnal Jurisprudence’.
97 A. Badiou, ‘Can Change Be Thought? A Dialogue with Bruno Bosteels’, G. Riera (ed.),
Alain Badiou: Philosophy under Conditions, 2005, pp. 237–261. See also Stramignoni,
‘Nocturnal Jurisprudence’.
98 For Lecercle Badiou’s originality lies largely in the unusual way he articulates ‘poem’
and ‘thought’. See ‘Badiou’s Poetics’, P. Hallward (ed.), Think Again, London and New
York: Continuum, 2004, pp. 208–217, p. 215.
99 Badiou, Inesthetics, p. 14.
92 Law and art: justice, ethics and aesthetics

100 Badiou, Inesthetics, p. 15.

101 One hint of what Badiou has in mind can be found, for example, in A. Badiou,
‘Fifteenth Theses on Contemporary Art’, Lacanian Ink 23 (2004).
102 This seems to be the sense of the title of the collaborative work that Badiou has recently
produced together with some other noted contemporary thinkers: Démocratie, dans quel
état? cit.
103 A. Badiou, L’éthique – essai sur la conscience du mal, Nous, 2003.
104 Badiou, Circonstances, 1, p. 72.
105 Badiou, ‘Can Change Be Thought?’, p. 258.
Chapter 5

Like the osprey to the fish

Shakespeare and the force of law
Richard Wilson

Rough power
On the Ides of March 1978 Michel Foucault interrupted his lecture on the state at
the Collège de France to assert that Shakespeare’s drama is ‘the drama of the coup
d’État’: just as ‘raison d’État manifests itself in a kind of theatricality’, Shakespearean
theatre is a ‘representation of this raison d’État in its dramatic violent form of the
coup’.1 What the philosopher meant by the coup d’État, he explained, was not the
seizure of power, but the ‘suspension or temporary departure from laws and
legality. The coup d’État is an extraordinary action against ordinary law, retaining
no form of justice’. It is doubtful whether Foucault had read the works of Walter
Benjamin and Carl Schmitt, whose writings on the state of emergency would be
vital for Jacques Derrida’s thinking about the ‘Mystical Foundation of Authority’.
But he had identified the source of Shakespeare’s energy in the tension between
law and justice: the drive to ‘Wrest the law to your authority./To do a great right,
do a little wrong’ [Merchant, 4,1,210–11], and the awareness that ‘The laws, your
curb and whip, in their rough power/Have unchecked theft’ [Timon, 4,3,436–7].
He had also read Stephen Greenblatt – the only Shakespeare critic he ever cited –
and it was Greenblatt who made this dark Foucauldian scenario of ‘Martial Law
in the Land of Cockaigne’ central to the New Historicism, with readings of episodes
such as Falstaff’s fantasy of the future reign of King Hal:2

FALSTAFF: … I prithee, sweet wag, shall there be

gallows standing in England when thou art king, and
resolution
thus fubbed as it is with the rusty curb of old father
Antic the law?
Do not thou when thou art king hang a thief.
PRINCE HARRY: No, thou shalt.
FALSTAFF: Shall I? O, rare! By the Lord, I shall be a brave judge!
[1 Henry IV, 1,2,51–6]

Following Schmitt’s dictum that ‘The state of emergency reveals the core of the
state’, Giorgio Agamben calls it ‘the paradigm of government’; but what the state
94 Law and art: justice, ethics and aesthetics

therefore fears, added Derrida, ‘is not crime or robbery . . . The state is afraid of
founding violence . . . violence able to present itself as having a right to right and to
law’.3 So for Greenblatt it is in the very lawlessness with which Hal rides to power
on the ‘unyoked humour’ [174] of a rogue like Falstaff that Shakespeare reveals
how the state is planted in ‘hypocrisy so deep the hypocrites themselves believe it’.4
Such is the ‘make-believe’ with which every revolution legitimates itself ‘after the
fact, après le coup’; and Derrida described the ‘troubling way’ Benjamin appeared to
share this messianic justification of violence with rightists like Schmitt and Ernst
Kantorowicz as ‘a kind of self-destruction, if not a suicide’. It would thus be interest-
ing to trace the equally ‘dismaying trajectory’ of the corollary, that the king’s lawful
body politic transcends his unlawful body natural, to Shakespeare studies from the
‘Secret Germany’ of Stefan George via Kantorowicz’s later teaching in America.5
For the idea that these texts sacralize kingship is pushed by critics such as Debora
Shuger, who cites theologian John Milbank to the effect that without such a tran-
scendent political theology ‘chaos is come again’.6 Milbank’s theologization of poli-
tics and resuscitation of Catholic ‘distributism’ parallel the uses to which Schmitt
was put in Franco’s Spain.7 That he and his Chestertonian epigones are gurus for
Britain’s Conservatives therefore only confirms the timeliness of such a critique.
The return to political theology in Shakespeare criticism would have us read
the plays as legitimations of Christian monarchy. But what is striking is how, from
the rape of the Amazons, when Duke Theseus woos Hippolyta with his naked
sword and wins her love, he says, doing her ‘injuries’ [Dream, 1,1,16]; to the terror-
ist hijack when Prospero takes the wedding party hostage; even the Comedies
seem, on the contrary, devised to prove Derrida’s point that all states embed the
law in violence: ‘Always, even when there have not been spectacular genocides,
expulsions, or deportations’. Shakespeare is clearly fascinated by the aporia of the
interregnum, ‘the witching time of night’ [Hamlet, 3,3,358] that Heidegger under-
stood after Hölderlin as the ‘caesura’, and Derrida terms the instant of ‘nonlaw’,
the standstill when divine agency fails, and the foundation of law is ‘suspended in
the void over an abyss’; and in play after play sets his scene at this hour of the wolf,
when as Antony exults, a rough emergency power cries ‘Havoc!’ with ‘a mon-
arch’s voice’ [Julius Caesar, 3,1,275–6].8 But he is equally clear-eyed about what
Benjamin did grasp in his ‘Critique of Violence’, that because there can be ‘No law
without force’ the constative act of violence has to be ceaselessly represented as
eternally true through the symbolic violence of the performative speech acts with
which the law is preserved:9

How many times shall Caesar bleed in sport,

In states unknown and accents yet unborn?
So long as that shall be, so shall the knot of us be called
The men that gave their country liberty! [3,1,115–18]

‘The same arts that did gain/A power must it maintain’, wrote Marvell of
Cromwell.10 He was echoing the Chorus of Henry V, which predicts that if the Earl
 Like the osprey to the fish: Shakespeare and the force of law 95

of Essex returns from Ireland with rebellion ‘broachèd on his sword’ Londoners will
fetch their conqueror in [5,0,32]. This back-handed compliment on the eve of
Essex’s revolt is the nearest Shakespeare ever got to the violence of his own times;
and its Machiavellianism recalls Sir John Harington’s tautology: ‘Treason doth
never prosper: what’s the reason? Why, if it prosper, ‘tis not treason’.11 Montaigne
said the same in the essay that gave Derrida his title: ‘Laws are maintained not
because they are just, but because they are laws. It is the mystical foundation of their
authority’.12 Thus the ordeal of undecidability at the Globe was that of the gener-
ation of Europe’s Wars of Religion: ‘how to distinguish between the force of law of
a legitimate power and the originary violence that could not have authorized itself
by any anterior legitimacy?’13 For what was really new around 1600, these dramas
insist, was the vertigo that ‘Since the founding or grounding of the law cannot by
definition rest on anything but themselves, they are a violence without ground’:14

Blood hath been shed ere now, i’th’olden time,

Ere human statute purged the gentle weal;
Ay, and since, too, murders have been performed
Too terrible for the ear. The time has been
That, when the brains were out, the man would die
And there an end. But now they rise again
With twenty mortal murders on their crowns,
And push us from our stools. [Macbeth, 3,4,74–81]

Shakespeare’s rulers yearn for the ‘gentle weal’ to be again made ‘Whole as the
marble, founded as the rock’ [21]. But instead they live in a time that is ‘out of
joint’ [Hamlet, 1,5,189], in the sense, as Derrida riffs, ‘of disarticulated, dislocated,
undone, beside itself, deranged, off its hinges’, when it is not only crucial for power
to know ‘who is buried where’, but to make certain that they remain there, since as
Macbeth discovers, ‘graves send/Those we bury back’ [4, 3, 70], and ‘understood
relations’ bring ‘forth/The secret’st man of blood’ [123–5].15 The ‘understood
relations’ of the rogue state in which, as Lear rages, ‘The strong lance of justice
breaks’, because ‘Robes and furred gowns have the power/To seal the accuser’s
lips’ [Lear, 4,6,158–60], threaten to doom this drama to the melancholia which
Benjamin studied in the Baroque Trauerspiel, with politiques like old Gaunt stuck in
the double-bind that ‘correction’ for the founding murder lies in the ‘hands/
Which made the fault’ [Richard II, 1,2,4–5]. Urged to revenge by a murderer’s ghost,
Amleth’s Norse saga is thus stalemated by the sense that this ‘instant of decision is
a madness’.16 Meanwhile, the tyrant smiles: ‘Our scene is altered from a serious
thing’ [5,3,77], with ‘alarums changed to merry meetings’ [Richard III,1,1,7]. For
as Schmitt scoffed, this is the ‘weak piping time’ [24] of mediating parliaments and
a neutralizing public sphere, when the aesthetic starts to be autonomized as an
innocuous space outside the political, ‘the distinction between friend and enemy
will cease’, and what remains is mere ‘culture, civilization, economics, morality,
law, art, entertainment, etc.’17 Yet according to the Nazi lawyer in his own book
96 Law and art: justice, ethics and aesthetics

on Shakespeare, Hamlet or Hecuba, what makes the Bard more interesting than this
rule is the decisiveness with which he breaks this representational deadlock by
staging the violent conditions of his own exception.18 As Victoria Kahn quips, for
Schmitt Hamlet may not be decisive ‘but Shakespeare is, not least in representing
the state of emergency in early seventeenth-century England’:19

All the world’s a stage [As You Like It, 2,7,138], or so it had become . . . around
1600 . . . In Shakespeare’s England [this] baroque theatricalization of life
was . . . intensely integrated into its current reality, a part of the present in a
society that perceived its own actions as theater . . . The play on the stage
could appear . . . as theater within theater.20

Stuff happens
‘I am perfectly willing to admit my generation grew up under authoritarian condi-
tions’, conceded the centenarian Hans-Georg Gadamer, ‘but in my case . . .
I really wanted to go to the theatre and read Shakespeare . . . The liberation came
in 1918, and the fact that I was reading Shakespeare was how I escaped the pre-
vailing militarism’.21 For the philosopher of hermeneutics the plays offered an exit
from the permanent emergency of the Prussian state. By contrast, publication of
the first translation of Schmitt’s 1956 study Hamlet or Hecuba is hailed as a veritable
Anschluss by critics who share his belief that ‘divine right of kings is defended in
Shakespeare’s plays, particularly in Hamlet’.22 For this blitzkrieg upon Shakespeare
studies would like to see return to action a figure we thought safely retired: the
‘rash and bloody’ [3,4,26] Nazi Hamlet, flexed to strike like some Viking strong-
man, as played by Gustaf Gründgens or glorified by the critic Friedrich Gundolf
and his admirer Goebbels. Here the fight is with Benjamin, who wove Schmitt’s
own theory of the miracle as a state of exception into the 1927 book in which he
praised Hamlet as the über-Trauerspiel where ‘flights of angels’ [5,2,302] crown the
work of mourning. Schmitt roguishly recalls how ‘In 1930 he expressed gratitude
to me’.23 But he ends crushing Benjamin’s messianic dreams with a sneer that
he had underestimated the Anglo-Saxons, who are too cynical to indulge illusions
about salvation – the Jewish critic had, of course, taken his own life in 1940 thinking
his escape to America thwarted.
Benjamin and Gadamer’s transcendent Shakespeare and Schmitt’s decisionist
Dane face each other as diametric opposites of twentieth-century German recep-
tion of Hamlet. So, with its political existentialism, Hamlet and Hecuba is arguably the
most significant book ever written by a lawyer on Shakespeare. In the midst of the
Cold War, when Hamlet was ‘The Man Who Could Not Make up His Mind’,
it was certainly ironic that the jurist of the decision should find strength in the
Prince of Hesitation. But Schmitt’s ‘most royal’ [342] Dane has nothing of the
vacillating ‘John-a-Dreams’ [2,2,545] so despised by Nietzsche, and enough
‘improbable courage as well as fits of sudden violence’ to test to destruction his
own maxim that ‘Sovereign is he who decides the exception’.24 Such a combative
 Like the osprey to the fish: Shakespeare and the force of law 97

character might be ‘more easily explained by impressions from the Hitler years’,
the impenitent Nazi admits, since what defeats Hamlet are not Freudian hang-ups
but ‘simply hopeless’ historical odds.25 For like Schmitt’s beloved partisan, this
Prince is a guerilla in the war against liberalism and modernity who embraces
‘a hopeless fight’. That is because he is a reflection of an actual prince who was
‘robbed, kidnapped, arrested, jailed, and threatened with death’, after his mother
murdered his father, and who then made peace with her enemy only to be grotesquely
defamed. In Schmitt’s book Hamlet’s tragedy is the story of King James; but also
by implication of a ‘tattered’ and fractured Germany and so of the disgraced jurist
himself.26
Ernst Jünger described Schmitt’s writings as ‘mines which explode silently’,
and its fifty-year fuse makes Hamlet or Hecuba a true time-bomb for Shakespeareans.27
Some have seen the essay as an anomaly in the lawyer’s oeuvre. In fact, it is cen-
tral. For as Julia Lupton and Jennifer Rust remark in their Introduction, Schmitt’s
theory that the tragedy is constructed around James’s historical trauma, as the taboo
of which Shakespeare dares not speak, cannot but remind us of the crime of the critic as
conveyancer for Auschwitz.28 Like Hamlet, Schmitt had ostensibly retreated into
‘the security of silence’.29 But he starts by quoting Freiligrath, the poet of 1848:
‘Germany is Hamlet!’30 And in an Afterword David Pan notes that his devilment
over the fact that ‘a piece of historical reality . . . penetrates deep into the play’,
and glee that ‘historical reality is stronger than any aesthetic’, not only reprises the
Reich diktat that all art is political, but rebukes old comrades such as Heidegger
who had been denazified in the alpine air of aisthesis.31
Schmitt’s Hamlet is the work of a literary poseur who liked to refer his life to
the classics, seeing himself in 1945, for instance, as Benito Cereno, Melville’s
sea-captain hijacked by slaves. Written for the irreconcilables’ ‘invisible empire
of German intellectuality’ the outlawed lawyer controlled from his Plettenberg
bungalow ‘San Casciano’ (named after Machiavelli’s villa and the saint assassi-
nated with pens) this lecture was part of Schmitt’s revanchist campaign to steel
post-War Europe to get its act together against American technology and global-
ization, with the Prince of Denmark and the Stuart family held up as warnings of
the geopolitical failure to know your Anglo-Saxon enemy and learn from your
foes: ‘They disappeared from the stage of world history as the great appropriation
of the sea was decided and a new global order’.32
‘If James had carried off a great victory he would be as respected as Fredrick
the Great’: it is easy to see how Schmitt’s decisionism fired Leo Strauss and neo-
conservative scorn for the UN; and why he was so tickled to be quoted on behalf
of Israel’s realpolitik.33 In Hamlet and Hecuba the old anti-Semite actually cites Isaak
Disraeli, ‘the father of the famous Benjamin’, as a source for his heroic James.34
The closest analogue of his political Shakespeare would indeed be that of Strauss’s
disciple Alan Bloom – Saul Bellow’s Ravelstein, with his hotline to the Pentagon –
who bawled: ‘We respect our colleagues in literature departments . . . but believe
that Shakespeare was pre-eminently a political author’.35 For what Schmitt as
the thinker of ‘great spaces’ adored about the Shakespearean theatre was that,
98 Law and art: justice, ethics and aesthetics

having never been intended for effete and closeted readers, its ‘sensationalism and
buffoonery’ was so far removed ‘from the comfortable enjoyment’ of later politesse,
with its ‘peace, security, and order’, and so constituted ‘a living play’ or parade-ground
for power, where virile and piratical ‘men of action’ like the Earl of Essex and Sir
Walter Raleigh strutted and ‘society was on stage’: hence the rudely uncivilized
‘intrusion’ of those anachronistic tobacco-pipes and feather-hats into the fictional
time of the play.36
With its protagonist personifying the religious schism of his age, Schmitt’s
Hamlet is no longer a play of indecision but strife; and the jurist who legalized the
Führerprincip dwells on the way the 1604 Quarto buckles under pressure from King
James.37 Those who picture the Globe as an easy-going model for Habermas’s
tolerant public sphere will therefore be startled as much by Schmitt’s gusto for the
playhouse as a bear-baiting conflict-zone as by his belief that Voltaire had been
right to call the Bard a ‘drunken savage’.38 For his eroticized cult of Elizabethan
England as a swashbuckling rogue state, ‘coarse, elemental, barbaric, not yet
“civilized”’, had its genesis in the Shakespeare orgies of the George Circle where,
as Stefan Zweig reported in his student novel Confusion, the plays were acclaimed as
‘an ejaculation, a unique wild phenomenon prowling the world, seizing on its
prey’.39 Schmitt admired the way Cromwell wrestled ‘the natural enemy’ of Catholic
Spain in ‘demonic rage’.40 So here his dueling-club fantasy of Shakespearean
tragedy as the wet-dream of the lawless Englanders’ buccaneering ‘departure from
the land to the sea’ was intended as manly praise:41

This unalterable reality is the mute rock upon which the play founders, sending
the foam of genuine tragedy rushing to the surface.42

The Telos translation clicks heels to the Prussian bark in this tough talk. But its
issue is meant to clinch the journal’s project of taming the State Councilor’s
Kulturkampf for the Left, which the Introduction valiantly assists by tying his text to
research on Shakespeare’s Catholic contexts by Stephen Greenblatt and others.43
This stress on Schmitt’s ‘political theology’ owes a lot to his canonization by
Heinrich Meier, the Director of Munich’s Siemens Foundation, made plausible
by the moral murk of the church under Pius XII.44 Yet his title refers to Hamlet’s
line about not mourning the defeated [2,2,536], which here acquires sinister status
as sly exoneration of his ‘tragic’ refusal to apologize for the Holocaust or condemn
the Night of the Long Knives. The embarrassment of this book for political theol-
ogy is therefore its defiance that though ‘many things are sad and melancholy’, in
a genuine tragedy like Hamlet ‘it is inconceivable that we are meant to weep’, since
‘Shakespeare’s drama is no longer Christian’, and ‘has nothing to do with the
church’.45 Schmitt’s Hamlet thus reveals how he only ever saw a concordat with the
Pope as a means to dictatorial ends. For if this numb and affectless Hamlet is indeed
a German requiem, we infer, it is the undertaker who has requested no wreaths.
‘What’s he to Hecuba or Bulgaria to us?’ Bismarck had asked.46 Bavarian
theologizing of Schmitt always collides with his own similar Prussian totalizing of
 Like the osprey to the fish: Shakespeare and the force of law 99

politics; and the Telos plan to rebrand him as some weird Gnostic liberation
theologian has to overlook his agonistic thesis that Hamlet is tragic because its
pitiless shock and awe is not civilized by the pathos of religion. Stern Nordic boys
like Hamlet do not cry, on his reckoning, because ‘unmanly grief’ is ‘unprevailing’
[1,2,94;107], as Claudius says. So Shakespeare inserted the play-within-the-play
to show that if we wept ‘Our tears would become the tears of actors’.47 As a theo-
retician of fascism, Schmitt is often accused of aestheticizing politics.48 But here
The Mousetrap distances the icy reality of the political from the pathetic fallacy of
the aesthetic. The play onstage ‘protests too much’ [3,2,210] since its flowery
emotionalism is that of the effeminate Christian mourning play, the Trauerspiel its
creator rejected for the existential tragedy of ‘casual slaughters’ [5,2,326], and the
Schmittian school of hard knocks. What Shakespeare’s play plays, Schmitt noticed,
is play’s end, the time of ‘the wind and the rain’, when ‘A foolish thing’ is ‘but a
toy’ [Twelfth, 5,1,377–8], and ‘the hobby-horse is forgot’ [Hamlet, 3,2,122].

Like an Olympian wrestling

Schmitt’s Hamlet uses Shakespeare to allegorize his own outlaw condition after
World War II, succumbing to the very pathos of self-pity he reviles. So, if we ask
what a truly Schmittian play might look like the answer is surely Troilus and Cressida,
the pitiless construct that the dramatist created soon after, if not next. There,
Schmitt’s critique of the aesthetic is prefigured in a plot that concerns the project
of perpetual peace he despised, and does so through a sequence of debates that
appear to rehearse his deconstruction of the chattering indecisiveness of parlia-
ments and art. For when the Trojan hero Hector fights the Greek Ajax in this
version of the Troy story it is what Achilles derisively calls ‘A maiden battle’
[4,6,89] without blood. The ‘order of the field’ is that referees must decide if ‘the
knights/Shall to the edge of all extremity/Pursue each other, or be divided’
[68–71]: ‘either to the uttermost/Or else a breath’. But as King Agamemnon
smiles, ‘The combatants being kin/Half stints their strife before their strokes
begin’ [92–3]; and the two warriors are no sooner in action than the umpires
stop the fight, to proceed ‘As Hector pleases’ [4,7,3]. This interruption is so
abrupt the Norton edition breaks the scene to allow the champions to continue
‘fighting’, as they do in George Chapman’s Iliad until ‘out gusht the blood’.49
But that seems a misreading. For what is at stake here is the question on which
Troilus and Cressida turns, and which Homer gives to a war-weary Achilles at the
end of his poem, of whether ‘strife’ can ever be ‘stinted’ ‘among the men and
gods’?50 Troilus and Cressida stages Schmitt’s observation that while ‘children and
frisky cats play in perfect freedom . . . there is in play a fundamental negation of
the critical situation. The tragic ends where play begins’.51 So no wonder Aeneas
nudges the two contenders that ‘There is expectation here from both sides/What
further you will do’ [30–1]; nor that Hector explains to his opponent that the
reason why ‘I will no more’ is that ‘The obligation of our blood forbids/A gory
emulation’ twixt us twain . . . the just gods gainsay/That any drop thou borrowed’st
100 Law and art: justice, ethics and aesthetics

from thy mother,/My sacred aunt, should by my mortal sword be drained’ [6–19].
Achilles joked about the amorousness of this match; and it is because Ajax is
‘A cousin-german to great Priam’s seed’ [122] that the ‘issue is embracement’
[32], so this war can be a civil one in every sense. But it is old Nestor, famed for the
garrulousness of his ‘stretched-out life’ [1,3,61], who recalls that this is how Hector
always operates, as ‘the order of their fight’ [4,6,93] permits these enemies to
‘stint’ their ‘strife’ by treating their encounters as bloodless extensions of the
Olympic Games:

I have, thou gallant Trojan, seen thee oft,

Labouring for destiny, make cruel way
Through ranks of Greekish youth, and I have seen thee
As hot as Perseus spur thy Phrygian steed,
And seen their scorning forfeits and subduements,
When thou hast hung th’advancèd sword i’th’air,
Not letting it decline on the declined,
That I have said to some my standers-by,
“Lo, Jupiter is yonder, dealing life!”
And I have seen thee pause and take thy breath,
When that a ring of Greeks have hemmed thee in,
Like an Olympian, wrestling. [4,7,67–78]

Nestor’s anachronistic memory of Hector halting amid Greeks with ‘high blood
chafed’ [Pro,2] to take his breath ‘Like an Olympian’ athlete is prefigured in
3 Henry VI, when Clarence promises the army ‘such rewards/As victors wear at
the Olympian games’ [2,3,52]. In his Sport, Politics and Literature in the English
Renaissance Gregory Semenza argues that war is ‘stinted’ into such ‘sport royal’ in
all Shakespeare’s early Histories.52 What we see in this gamesmanship, therefore,
are the antecedents of the Anglo-Saxon hegemony Schmitt feared in all such plans
for a Christian Union or United Nations. For this chivalric Olympianism would
in fact be actualized in the 1600s at Robert Dover’s Cotswold Olympics, where
the sports were expressly applauded by Shakespeare’s Stratford relative John
Trussell (author of a poem on Helen) as a truce in which ‘scorn/And pride’ were
‘wholly at that time forborne’, as contestants strove ‘to excel each other/In love
and courtesy’.53 Jonson likewise extolled these Jacobean Games for forging ‘true
Love and Neighbourhood’; and Michael Drayton enthused that they restored
‘The golden Age’s glories/As those brave Grecians in their happy days/On Mount
Olympus . . . Where then their able Youth Leapt, Wrestled, Ran . . . And honour’d
was the Man/That was the Victor’.54
With Dover’s sporting manifesto we can observe his Olympic committee legis-
lating rules of pacification and neutralization almost two centuries before the
disinterestedness of the Kantian aesthetic would issue in the project for perpetual
peace. Leah Marcus therefore points out that the function of these festivities in
Gloucestershire was in fact to Hellenize traditional folk customs as ‘an affirmation
 Like the osprey to the fish: Shakespeare and the force of law 101

of Stuart power’. Thus in The Politics of Mirth she reminds us how, contrary to the
great theorists of homo ludens, Roger Caillois and Johann Huizinga, play always
remains an economy, albeit ‘turned upside down’.55 This bizarre Jacobean Greek
revival can therefore aptly be seen as a precocious premonition of the ideology of the
aesthetic, since as Semenza concurs, Dover’s supporters’ club of Olympian poets was
‘using sport – or more accurately competition – to defend poetry’ as an immunizing
substitution: that affectless mimicry of the competitive agôn which Shakespeare’s
Ulysses scorns as ‘a pale and bloodless emulation’, as opposed to the ‘gory emulation’
of true enmity and war [1,3,134].56
In Shakespeare’s Olympics sport is already what George Orwell called it:
a mock ‘war without the bullets’.57 So, ‘How does your fallow greyhound, sir?’
Slender needles Page, ‘I heard say he was outrun on Cotswold’ [Wives, 1,1,72],
prompting biographers to imagine the dramatist was himself a cheerleader at the
Cotswold Games.58 And whether or not he did personally attend them, what these
classicized Whitsun sports suggest is a topical discursive context for the utopian
ideal to which Troilus and Cressida keeps on returning: of Hector’s ‘Olympian’
pause as a literal breathing space, a life-dealing moratorium or exemption from the
deadliness of armed struggle, when ‘during all question of the gentle truce’ [4,1,13]
agonistic ‘strife’ is temporarily sublimated in the godlike neutrality of give and
take, an evacuation of pathos of precisely the kind Huizinga thought defined the
rules of the game. Huizinga’s notion of Homo Ludens may well be founded, just as
much as Schmitt’s opposing one, on an untenable distinction between play and
reality, of seriousness and game, but it is what inspires Shakespeare’s Greeks and
Trojans to dream of their zone of ‘free play’ as the inauguration of a new world
order:

. . . standing quite consciously outside ‘ordinary’ life as being ‘not serious’, but
at the same time absorbing the player intensely and utterly. It is an activity
connected with no material interest, and no profit can be gained by it. It proceeds
within its own boundaries of time and space in an orderly manner and according
to fixed rules.59

New Historicists have stressed that while Elizabethan writers like Harington
recognize such emotion-free play as a fundamental human activity, ‘whose only
end is delight of the mind or the spirit’, they ground their defense of recreational
sport in the prerogative of the Renaissance courtier and gentleman, rather than
the disinterestedness of the Kantian aesthetic.60 Yet Nestor’s applause for Hector’s
moment of magnanimity, when he suspends his sovereign violence, ‘Not letting it
decline on the declined’, implies that Shakespeare could identify this grand
‘Olympian’ ‘indifference to what lies outside the boundaries of the game’ with
something which, if it is not yet the aesthetic, is beginning to seem like the ‘will to
absolute play’.61 Free, separate, uncertain, unproductive, fictive, yet controlled,
and above all, emotionally neutral: these are the defining characteristics of
such play according to the theorists of the game.62 And such is the pre-aesthetic
102 Law and art: justice, ethics and aesthetics

autonomy, or suspenseful state of exception, to which Dover’s poets aspired.

It cannot be chance, therefore, that so many were Catholics. For their encomia
extol the Games as a model for exactly the detheologization and rationalization
which after 1648 transformed the Wars of Religion into what Schmitt termed a
true ‘theater of war: a “war in form,” une guerre en forme’ whereby ‘war became . . .
analogous to a duel . . . a conflict of arms between . . . personae morales [moral per-
sons], who contended with each other on the basis of the jus publicum Europaeum’:63

The Grecians next (a nation of great fame)

To stout Alcydes make the Olympic game,
Which Games each lustrum they with great expense
Perform’d with state, and true Magnificence . . .
Mycenae, and Argos, and prow’d Sparta hight,
From thence each Spriteful Lord and Active Knight
Went up Olympus Mountain Top, to try
Who in their Games could win the Victory.
Wrestling, Running, Leaping, were games of Prize,
Coursing with Chariots, a prime exercise,
Contention there, with Poets and Musicians,
Great emulation ‘amongst the Rhetoricians;
And crown’d with garland from the Olive Tree
He was, in those Games, that won the Victory;
And to those Games came Nations far and nigh . . .
But when those games the Grecians . . . fly,
Then stepp’d the Soldier in, with Conquering Blade,
And in a moment of Greece a Conquest made.64

Fool's play
Editors of Troilus are bemused by the contradiction of its ‘dull and long-continued
truce’ [1,3,259] with its insistent ‘news from the field’ and the ‘war without the
walls’ [1,1,2;104]. But Dover’s Olympians confirm how Shakespeare’s contempor-
aries could read ancient civilization as one long ludus of ‘bloodless emulation’.
What seems to trouble the dramatist, however, is the tension between the rule-
bound fairness of agonistic contest and the randomness of the game of chance,
since his ‘armed’ Prologue [Pro,23] ominously sets the scene for ‘sport abroad’
[1,1,111] when we are told ‘expectation, tickling skittish spirits/On one and other
side, Trojan and Greek,/Sets all on hazard’ in the aleatoric arbitrariness of some
throw of dice: ‘Like or find fault; do as your pleasures are;/Now good or bad, ’tis
but the chance of war’ [Pro, 20–31]. The play thus appears already to know what
Schmitt taught, that the self-grounding decision is ‘fraught with risk, to the degree
that it arises from blindness’.65 So there is wishful-thinking when Aeneas says the
reason for ‘the gentle truce’ [4,1,13] is that this ‘sportful combat’ [1,3,329] is pre-
cisely not to be a life-or-death struggle, but rather a friendly match which the home
 Like the osprey to the fish: Shakespeare and the force of law 103

team is itching to play: ‘Hark, what good sport is out of town today . . . But to the
sport abroad’ [1,1,109–11].
Throughout Troilus and Cressida the characters struggle to hold the line between
a game of mere chance and sporting competition, alea and agôn, and we are assured
‘Hector in his blaze of wrath subscribes/To tender objects’ [4,6,108–9]; or that
Diomedes will ‘let Aeneas live,/If to [his] sword his fate be not [his] glory’
[4,1,26].66 As on Dover’s Olympic hill, the ‘Contention’ of ‘the Soldier with
Conquering blade’ is appeased so long as the passion of authentic ‘emulation’ is
subsumed into a ‘pale and bloodless’ sport. Thus according to Troilus, even ‘The
seas and winds, old wranglers, took a truce’ to aid Paris ‘do some vengeance on
the Greeks’, supposing the rape of Helen to be yet another friendly charade, when
‘for an old aunt whom the Greeks held captive/He brought a Grecian queen’
[2,2,72–8]. As he ponderously lectures his brother, to merely ‘play the hunter’
[4,1,19] like this, with sword suspended as though in a perpetual amnesty, ‘Not
letting it decline on the declined’, may be magnificent, but such a passionless ‘vein
of chivalry’ [5,3,31] is by definition not war:

TROILUS: Brother, you have a trick of mercy in you,

Which better fits a lion than a man . . .
When many times the captive Grecian falls,
Even in the fan and wind of your fair sword,
You bid them rise and live.
HECTOR: O, ’tis fair play.
TROILUS: Fool’s play, by heaven, Hector . . .
For th’love of all the gods,
Let’s leave the hermit Pity with our mothers,
And when we have our armours buckled on,
The venomed vengeance ride upon our swords,
Spur them to ruthful work, rein them from ruth.
HECTOR: Fie, savage, fie!
TROILUS: Hector, then, ’tis war. [5,3,37–49]

Since our knowledge of the real Olympic truce comes mainly from reports of
its breach, classicists dispute whether it was as universal as modern Olympians
think.67 But the first lines of Shakespeare’s play suspend the action inside the ‘fair
play’ of just such a cessation, when Troilus commands: ‘Call here my varlet.
I’ll unarm again./Why should I war without the walls of Troy/That find such
cruel battle here within’ [1,1,1–3]. Evidently, what Shakespeare picked up from
Chaucer’s Troilus and Criseyde was the potential to read this love story as a reversal
of the game of war into a war game. As the poet says, that involves inverting historical
perspective, for ‘how this town com to destruccion/Ne falleth naught to purpose
me to telle/For it were here a long digression’.68 This trick of ‘invoking and sup-
pressing’ events at the front means they ‘enter the poem only as occasions for
erotic action’, Lee Patterson notes.69 And while John Pratt argues that Chaucer
104 Law and art: justice, ethics and aesthetics

‘uses images of war to advance the storyline’, and presents ‘seduction as a kind of
war’, because his poem is ‘about war as well as love’, that overlooks the poet’s own
investment in the hopes that, as Criseyde reports, ‘more and more/Men trete of
pees’, and the fact that by making love a ‘pseudo-military game’ like hunting,
chess, or tennis, his lovers produce a paradigm of the perpetual peace of the poem
as a permanent ceasefire itself.70
‘Aha!’, exclaims Chaucer’s Pandare, thinking Troilus ‘bleeds’ for love: ‘Here byg-
ynneth game’; and what must have intrigued Shakespeare is how Troilus and Criseyde
performs its own game theory by constantly alluding in this way to sporting events,
like Homer’s ‘pleyes palestral’ or funeral games, and the ‘queynte pley’ at the holi-
day in ‘tyme/Of Aperil’, when in spite of the siege ‘the folk of Troye’ insist on their
‘observaunces olde,/Palladiones feste for to holde’. For by framing the lovers’ meet-
ing within the ‘old usage’ of this celebration of ‘Lusty Veer’, the temporal enclave
‘whan clothed is the mede/With newe grene’, and ‘so many a lusty knight,/So many
a lady fresh’ are arrayed ‘bothe for the season and the feste’, the poet gave the author
of Hamlet the cue to conceive a play in which the entire history of the world would be
momentarily stalled ‘in the fan and wind’ of that parliamentary ‘time of pause’
[4,5,34], ‘this extant moment’ [4,7,53] of aesthetic caesura amid the ‘pelting wars’
[4,7,151], presided over by a ‘honey-sweet queen’ [3,1,131] of ‘I spy’ [3,1,896], the
interminable children’s game of displaced mimetic desire, Helen herself:71

They’re come from the field. Let us to Priam’s hall

To greet the warriors. Sweet Helen, I must woo you
To help unarm our Hector. His stubborn buckles,
With these your white enchanting fingers touched,
Shall more obey than to the edge of steel
Or force of Greekish sinews. You shall do more
Than all the island kings: disarm great Hector. [3,1,138–44]

In Troilus and Cressida Shakespeare pits the disarmament of Chaucer’s Iliad

against the blood and guts of Chapman’s, as he toys with the Olympic truce when
‘fair play’ lets peace catch breath, and the mimicry of war blunts its ‘edge of steel’,
as though ‘The time of universal peace is near’ [Antony, 4,6,4]. The equilibrium of
this ‘good sport’ is nothing new, for as Kiernan Ryan notes, these plays are full of
‘footloose warriors’ killing time: idlers ‘spinning things out, keeping this breathing
space open and holding time at bay’.72 What marks this work, however, is that
here the poetics of deferral succeed so well that ‘After so many hours, lives,
speeches spent’ [2,2,1] ‘Yet Troy walls stand’ in perfect stasis, as if ‘The wise and
fool, the artist and unread,/The hard and soft seem all affined and kin’
[1,3,12;24–5]. And this neutralizing of all distinctions between enemy and friend
is personified by a flâneur who promises what Caillois terms a ‘convulsion of simu-
lation’, and René Girard an epidemic of ‘undifferentiation’, when as the Schmittian
Ulysses winces, ‘right and wrong,/Between whose endless jar justice resides . . .
lose their names, and so should justice too’ [1,3,110–18].73
 Like the osprey to the fish: Shakespeare and the force of law 105

A figure of Derridean ambiguity and indeterminacy, like the assimilated Jew

that Schmitt despised, Pandarus is ‘a kind-hearted fool who wants to make the bed
for every couple’, Jan Kott considered; and Girard, that in his voyeuristic desire
for the universal mediation of indiscriminate and promiscuous ‘Love, love, nothing
but love’ [3,1,105], he is a playwright, for ‘all playwrights are panders . . . Troilus
and Cressida is written and staged by Pandarus’.74 His creator admits as much,
giving him rights to address the theatre as ‘Pander’s hall’ [5,11,46]. But with his
niece one of ‘the daughters of the game’ [4,6,64], what this arbitrageur represents
is the purposelessness of the aesthetic itself, as extemporized in the technicity of
the professional performer; the neutered gamesmanship similarly personified by
‘Achilles’ male varlet’ [5,1,15] Patroclus, who prostitutes the playhouse to sheer
‘sport and pleasure’ [2,3,100] by racking and stretching out the text in the histrionics
of a ‘pale and bloodless emulation’ of the authentic enmity of war. As Heather
James acutely points out in her study of Shakespeare’s Troy, in staging this ‘scan-
dalous reproducibility’ as symptomatic of ‘the problem of “emulation” – aemulatio
or rivalrous imitation’, Troilus and Cressida therefore anticipates Benjamin’s very
Schmittian thesis in ‘The Work of Art in the Age of Mechanical Reproduction’,
that the copy loses the aura of the authentic since ‘the presence of the original is the
prerequisite to the concept of authenticity’:75

…like a strutting player whose conceit

Lies in his hamstring, and doth think it rich
To hear the wooden dialogue and sound
‘Twixt his stretched footing and the scaffoldage [1,3,153–8]

This ‘poor player/That struts and frets his hour upon the stage’ will haunt
Shakespeare’s Jacobean tragedies as a figure for the false autonomy of the play as
‘a tale/Told by an idiot, full of sound and fury, signifying nothing’ [Macbeth,
5,5,23–7]. In Troilus and Cressida the futility of such ‘fool’s play’ is ultimately
exposed when Hector engages Achilles ‘in the blaze of wrath’, but ‘scorning for-
feits and subduements’ hangs his sword in the air, when he has his mortal enemy
at his mercy, playing the usual ‘trick of mercy’ that allows the other to ‘Pause if
thou wilt’ [5,6,15]. All Hector’s ‘Olympian’ will to play is concentrated into this
last pause, which uncannily repeats as it predicts the one posed by the Player in
Hamlet. There Achilles’ son Pyrrhus stood stalled ‘as a painted tyrant’, in an epit-
ome of the painting as the suspenseful waste of time, ‘Still and contemplative in
living art’ [Love’s Labour’s, 1,1,14], when his sword ‘declining on the milky head/
Of reverend Priam, seemed i’th’air to stick . . . And like a neutral to his will and
matter/Did nothing’ [Hamlet, 2,2,457–62]; a self-reflexive play within the play
that is itself a word-picture of the hushed suspense during the performance at the
Globe:76

. . . as often we see against some storm

A silence in the heavens, the rack stand still,
106 Law and art: justice, ethics and aesthetics

The bold winds speechless, and the orb below

As hush as death . . . [2,2,463–6]

Shakespeare’s image of Pyrrhus’ blade hanging as though ‘painted’ evokes

the depiction of Damoclean swords in baroque paintings, where the sinister
mimicry of blood in paint prompts the redemptive idea of art as ‘an antidote
to violence’ that would be most powerfully explored by Rembrandt with
‘The Sacrifice of Isaac’.77 There the ‘virtuoso of interruption’ reveals the instant
when the angel stays the hand of Abraham to be a paradigm of the aesthetic as
a transcendence of the sacrificial cycle.78 Likewise, in their endless extended
mimetic instants of indecision Pyrrhus and Hector appear to represent the truce
of representation itself, as ‘a dream of passion’ [2,2,529], a game ‘signifying noth-
ing’. But behind both scenes hovers the hungry ghost of Christopher Marlowe,
whose Aeneas tells the terrible tale to Dido, and whose ‘entire absorption in
the game’ would carry him inexorably, in Greenblatt’s words, to an abyss of
‘absolute play’ and thus to an atrocious death in Deptford.79 And so Achilles refuses
to play Hector’s game, snarling ‘I do disdain thy courtesy, proud Trojan’ [16].
As Caillois observes, ‘The corruption of the agôn begins at the point where no
referee is recognised’.80
Instead of the Levinasian ethic Rembrandt could depict a generation
later, ‘The bull has the game’ [5,8,3], Thersites snipes. Critics connect the
resulting bloodbath to the shock and awe of the Essex Revolt, and the intrusion
of Schmitt’s real time into the time of the play. But ‘Pyrrhus’ pause’ proves
that Shakespeare never did make Marlowe’s fatal mistake of confusing reality
with a game, for ‘never did the Cyclops’ hammer fall . . . With less remorse
than Pyrrhus’ bleeding sword/Now falls on Priam’ [2,2,467–72]. Troilus and
Cressida thus simply confirms over the length of a play its maker’s dark wisdom
that ‘players may be played; that as an object in the game, the player may be
its stake’.81 So, ‘like a book of sport thou’lt read me o’er’, jokes Hector
playfully; but ‘Tell me, you heavens, in which part of his body/Shall I destroy
him?’ [4,7,123–7], is Achilles’ implacable response. As the truly decisionist prince
Troilus warned Cressida, if we mistake life for ‘a book of sport’ we ‘suddenly’
discover that the unpredicted interruption of ‘chance . . . jostles roughly by/All
time of pause’ [4,5,32–4]. ‘Venomed vengeance’ is the action upon which he
therefore decides, as ‘Distinction with a loud and powerful fan . . . winnows the
light away’ [1,3,26–7]. And his words are almost exactly those of the annihilating
Pyrrhus:

Not the dreadful spout

Which shipmen do the hurricano call,
Constringed in mass by the almighty sun,
Shall dizzy with more clamour Neptune’s ear
In his descent than shall my prompted sword
Falling on Diomed. [5,2,171–6]
 Like the osprey to the fish: Shakespeare and the force of law 107

This hideous rashness

‘I know thee not, old man’ [2 Henry IV, 5,5,45]: Shakespeare shocks us by the
brutality with which he shuts up the play within his play, as if this is the fate of the
real play, as Schmitt says of ‘The Mousetrap’, ‘repeated before the curtains’.82
‘The words of Mercury are harsh after the songs of Apollo’ [Love’s Labour’s,
5,2,903]: and the vandalism with which his upper class hooligans demolish plays
as ‘the silliest stuff’ [Dream, 5,1,206] mirrors on this view the way his work closes
down the aesthetic by ‘declaring martial law on itself’. Many critics are repelled
that as Francis Barker complained, if ‘Shakespeare never seems to know quite
what he supports,’ he thereby escapes hesitation through ‘a commitment to
domination’.83 But Schmitt argues that it is by deciding for the decision that this drama
rises above aesthetics into the tragic seriousness of an existentialism that accepts
‘ineluctable reality’ as ‘imposed and unavoidable’.84 ‘Our revels now are ended’
[Tempest, 4,1,148]: Shakespeare’s stage is haunted by the ‘lean and hungry’ [Julius,
1,2,195] ascetic who sulks like Coriolanus and is to the play as ‘the osprey to the
fish, who takes it/By sovereignty of nature’ [Coriolanus, 4,7,34–5]. So, ‘Take them
away,’ barks Edmund after Lear’s ‘old tales’ [Lear, 5,3,12–19]; Jacques: ‘I am for
other than for dancing measures’ [As You, 5,4,182]; and Malvolio: ‘I’ll be revenged
on the whole pack of you’ [Twelfth Night, 5,1,365]. It is easy to see why Hitler’s
‘crown jurist’ admired the anti-aesthetic of a writer whose Alcibiades commands
the farting Senators of Athens to ‘break wind/With fear and horrid flight’ [Timon,
5,5,12–13]. This Elizabethan playwright appeared to speak for Schmitt’s belief
that the Weimar constitution could only be reformed by revolutionary means.85
But Shakespeare’s charismatic Fortinbrases are also true to his own age, when
a strong armed Cromwell would indeed close down the theatre and order the
legislators to ‘Take away those baubles’:86

Till now you have gone on and filled the time

With all licentious measure, making your wills
The scope of justice. Till now myself and such
As slept within the shadow of your power
Have wandered with our traversed arms, and breathed
Our sufferance vainly. Now the time is flush
When crouching marrow in the bearer strong
Cries of itself ‘No more’. [Timon, 5,5,3–10]

A ‘terrified insomniac’ watchman on the walls of European law, Derrida called

Schmitt.87 Derrida’s reply in Specters of Marx irritates critics so much, by its per-
petual deferral of the spirit of revolution, that they now applaud the advent of a
‘rash and bloody’ Hamlet as if ‘only a Nazi will save us’.88 ‘Sumptuous and
stagnant exaggeration of murder’, was indeed Mallarmé’s précis of Hamlet; as for
Joyce the play was ‘a forecast of the concentration camp’.89 But Shakespeare
imagined his own conclusion to ‘this hideous rashness’ [Lear, 1,1,151], projecting
108 Law and art: justice, ethics and aesthetics

the nightmare future of the Hobbesian state where only ‘Force should be right’.
For in Troilus and Cressida, ‘After so many hours, lives, speeches spent’ [2,2,1],
Hector at last has to decide whether to return Helen and so end the war. He likens
the warmongers to youths ‘Aristotle thought/Unfit to hear moral philosophy’
[165–6] for confusing aesthetics with politics. Aristotle before Homer!? This insane
anachronism is Schmitt’s ‘terrible reality shimmering through the masks’, a shot
at the Inns of Court, where the play was acted shortly after the lawyers had backed
Essex’s coup, letting their ‘hot passion’ overrule a ‘true decision’ [168–72].90
So, Hector’s ‘opinion/Is this in way of truth’ [187–8]. Yet merely for the childish
aesthetic effect of a game to ‘shriek amazement’ [209], the great champion of
indecision decides ‘to keep Helen still’ [190], and so goes to his death at the hands
of Achilles and the Myrmidons. The rest is the ‘stuff’ called history.
It was Mallarmé who remarked that the military interventions of Fortinbras
and his avatars make them unlike the arbiters in any French tragedy, as they
‘empty the stage with dull destructive power . . . trumpets and drums’.91
Shakespeare’s theatre is indeed dominated by the idea of the coup d’état and the
message that ‘Sovereign is he who decides the exception’. As Terry Eagleton
writes, even in courtroom dramas like those of Shylock and Angelo the paradox is
that ‘to preserve the structure of the law you must transgress what it actually says’.
Eagleton connects this decisionism to the dramatist’s own verbal transgression
and the Schmittian irony that his ‘belief in social stability is jeopardized by the
very language in which it is articulated’.92 But in his stark lawyers’ play Shakespeare
also showed us what Schmitt (who died in 1985 terrified of the SS at his door)
never seems to have learned: that the decision may be a world-historical mistake
if everything does include itself in power, ‘Power into will’, and ‘will into appetite’,
because ‘appetite, an universal wolf,/So doubly seconded with will and power,/
Must make perforce an universal prey/And last eat up himself’ [1,3,119–24].

Notes
All quotations of Shakespeare are from the Norton Shakespeare, edited by Stephen Greenblatt,
Jean Howard, Katherine Eisaman Maus and Walter Cohen (New York: Norton, 1997).

1 M. Foucault, Security, Territory, Population: Lectures at the Collège de France, 1977–1978,

G. Burchill (trans.), M. Senellart (ed.), Basingstoke: Macmillan, 2007, p. 265. For the
problem of legitimacy in the plays, see also the professional discussion by Ian Ward in
Shakespeare and the Legal Imagination, London: Butterworths, 1999, pp. 20–32, et passim.
2 S. Greenblatt, ‘Martial Law in the Land of Cockaigne’, in Shakespearean Negotiations: The
Circulation of Social Energy in Renaissance England, Oxford: Clarendon Press, 1988,
pp. 129–64. For Schmitt and Foucault, see in particular M. Ojakangas, ‘Sovereign and
Plebs: Michel Foucault Meets Carl Schmitt’, Telos, 119 (Spring 2001), 32–40.
3 E. Bolsinger, The Autonomy of the Political: Carl Schmitt’s and Lenin’s Political Realism, Westport,
Conn.: Greenwood Press, 2001, p. 95; G. Agamben, State of Exception, K. Attell (trans.),
Chicago: Chicago University Press, 2005, p. 1 et passim; J. Derrida, ‘Force of Law: The
“Mystical Foundation of Authority”’, in Acts of Religion, G. Anidjar (trans.), London:
Routledge, 2002, p. 268.
4 Greenblatt, op. cit. (note 2), p. 55.
 Like the osprey to the fish: Shakespeare and the force of law 109

5 ‘Dismaying trajectory . . . troubling way’: Derrida, op. cit. (note 3), pp. 262 and 269–70.
For recent discussions see in particular R. Halpern, ‘The King’s Two Buckets:
Kantorowicz, Richard II, and Fiscal Trauerspiel’, Representations, 106 (2009), 67–76, esp.
pp. 72–3; and Z. Luis-Martinez, ‘Historical Drama as Trauerspiel – Richard II and
After’, ELH, 75 (2008), 673–705.
6 D. Shuger, Political Theologies in Shakespeare’s England: The Sacred and the State in ‘Measure for
Measure’, Basingstoke: Palgrave, 2001, pp. 45–7; J. Milbank, Theology and Social Theory:
Beyond Secular Reason, Oxford: Blackwell, 1990, pp. 5 and 12–13.
7 For parallels between Milbank’s Schmittian political theology and the adoption of
Schmitt by the theorists of franquismo, see J-W. Müller, ‘Don Carlos in Iberia’,
in A Dangerous Mind: Carl Schmitt in Post-War European Thought, New Haven: Yale
University Press, 2003, pp. 133–43.
8 For Heidegger and the caesura, see Philippe Lacoue-Labarthe, Heidegger, Art and Politics:
The Fiction of the Political, trans. Chris Turner (Oxford: Basil Blackwell, 1990), pp. 41–6.
Derrida, op. cit. (note 3), pp. 260 and 269–70; ‘Hour of the wolf’: Hélène Cixous, ‘What
is it o’clock?’ C. MacGillvray (trans.), in Stigmata: Escaping Texts, London: Routledge,
1998, p. 62.
9 Derrida, op. cit. (note 3), pp. 260 and 269–70; Walter Benjamin, ‘Critique of Violence’,
in Walter Benjamin: selected writings, M. Bullock and M. Jennings (ed.), 3 vols., Cambridge,
Mass.: Belknap Press, 1996, pp. 236–5 . For a brilliantly incisive account of ‘the illocu-
tionary force of “make-believe”’ given ‘the epistemological impossibility of distinguishing
between ‘‘law’’ and ‘‘violence’’’ in Shakespeare, with particular reference to Julius
Caesar, see R. Lüdeke and Andreas Mahler, ‘Stating the Sovereign Self: Polity, Policy,
and Politics on the Early Modern Stage’, in Solo Performances: Staging the Early Modern Self
in England, U. Berns (ed.), Amsterdam: Rodopi, 2010, pp. 209–27.
10 A. Marvell, ‘Horatian Ode on Cromwell’s Return from Ireland’, in The Poems and Letters
of Andrew Marvell, H. M. Margoliouth (ed.), 2 Volumes., Oxford: Clarendon Press, 1927,
vol. 1, p. 90.
11 Sir John Harington, ‘Of Treason’, Epigrams, Bk. 4, 5.
12 M. de Montaigne, ‘On Experience’, in The Essayes of Montaigne, J. Florio (trans.), New
York: Modern Library, 1933, p. 970.
13 Derrida, op. cit. (n. 3), p. 234.
14 Ibid., p. 242.
15 J. Derrida, Specters of Marx: The State of the Debt, the Work of Mourning, and the New International,
P. Kamuf (trans.), London: Routledge, 1994, pp. 9 and 23.
16 S. Kierkegaard, quoted Derrida, op.cit. (note 3), p. 255.
17 C. Schmitt, The Concept of the Political, G. Schwab (ed. and trans.), Chicago: Chicago
University Press, 1996, p. 53.
18 See C. Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, G. Schwab
(trans.), Chicago: University of Chicago Press, 2005, p. 15: ‘The exception is more
interesting than the rule. The rule proves nothing; the exception proves everything’.
19 V. Kahn, ‘Hamlet or Hecuba: Carl Schmitt’s Decision’, Representations, 83 (Summer
2003), 67–96, here 83.
20 C. Schmitt, Hamlet or Hecuba: The Intrusion of the Time of the Play, D. Pan and J. Rust
(trans.), New York: Telos Press, 2009, pp. 40–1.
21 H-G. Gadamer, A Century of Philosophy: A Conversation with Riccardo Dottori, R. Coltman
and S. Koepke (trans.), New York: Continuum, 2006, pp. 94–5 and 97. For the influ-
ence of the George Circle on Gadamer’s reading of Shakespeare, see also Jean Grondin,
Hans-Georg Gadamer, J. Weinsheimer (trans.), New Haven: Yale University Press, 2003,
p. 51.
22 Schmitt, op. cit. (note 20), p. 28.
23 Ibid., p. 62; Walter Benjamin, The Origins of German Tragic Drama, J. Osborne (trans.),
London: Verso, 1998.
110 Law and art: justice, ethics and aesthetics

24 Ibid., p. 28; F. Nietzsche, ‘John-a-dreams’ in The Birth of Tragedy Out of the Spirit of Music,
S. Whiteside (trans.), Harmondsworth: Penguin, 1993, pp. 39–40: ‘Hamlet as a John-
a-dreams who, from too much reflection, from an excess of possibilities, so to speak,
fails to act. Not reflection, not that! – True understanding, insight into the terrible truth,
outweighs every motive for action, for Hamlet and Dionysiac man alike. No consolidation
will be of any use from now on, longing passes over the world towards death, beyond
the gods themselves; existence, radiantly reflected in the gods or in an immortal
“Beyond”, is denied’. ‘Sovereign is he who decides the exception’: Schmitt, op. cit.
(note 18), p. 5.
25 Schmitt, op. cit. (note 20), p. 8.
26 Ibid., pp. 27 and 29. Carl Schmitt, ‘Hopeless fight’ ‘Theory of the Partisan: Intermediate
Commentary on the Concept of the Political’, Telos, 127 (Spring 2004), 30. For a
discussion of Schmitt’s cult of the partisan, see Müller, op. cit. (note 7), pp. 144–55.
27 Ernst Jünger to Carl Schmitt, 13 October 1930, quoted ibid., p. 34.
28 J. Lupton and J. Rust, ‘Introduction: Schmitt and Shakespeare’, Schmitt, op. cit. (note 20),
pp. l–li.
29 ‘Security of silence’: Müller, op. cit. (note 7), p. 53.
30 Schmitt, op. cit. (note 20), p. 9, quoting Ferdinand Freiligrath, ‘Hamlet’:
Germany is Hamlet! Solemn and silent,
Within his gates every night
Buried freedom wanders,
And beckons to the man on watch.
31 D. Pan, ‘Afterword: Historical Event and Mythic Meaning in Carl Schmitt’s Hamlet or
Hecuba’, ibid., pp. 69–73; Schmitt, ibid., pp. 20 and 30.
32 Müller, op. cit. (note 7), pp. 54–7, Schmitt, op. cit. (note 20), p. 65.
33 Ibid., p. 29. For Schmitt’s influence on neoconservative thinking and the doctrine of
American exceptionalism as expressed in contempt for the United Nations prior to the
2003 invasion of Iraq, see in particular Anne Norton, Leo Strauss and the Politics of American
Empire, New Haven: Yale University Press, 2004, pp. 35–40 et passim.
34 Schmitt, op. cit. (note 20), p. 29: ‘[King James] has found truly intelligent defenders.
Isaak Disraeli, the father of the famous Benjamin, deserves mention because he points
out the political caricature for what it was’.
35 A. Bloom and H. Jaffa, Shakespeare’s Politics, Chicago: Chicago University Press, 1964,
pp. 3–4; S. Bellow, Ravelstein, London: Viking, 2000.
36 Schmitt, op. cit. (note 20), pp. 34–5, 41, 47–8 and 63. For Schmitt’s ‘prototypical symbol
of the elemental decision in favour of the sea’, see also W. Hooker, Carl Schmitt’s
International Thought: Order and Orientation, Cambridge: Cambridge University Press,
2009, pp. 88–91.
37 Schmitt, op. cit. (note 20), p. 23.
38 Ibid., p. 64; F. M. Arouet de Voltaire, ‘Lettres philosophiques, XVIII,’ repr. in ‘Voltaire:
A Shakespeare Journal’, Yale French Studies, 33 (1963), 5; and see F. E. Halliday, The Cult
of Shakespeare, London: Gerald Duckworth, 1957, p. 73.
39 S. Zweig, Confusion: The Private Papers of Privy Councillor R von D, A. Bell (trans.), London:
Pushkin Press, 2002, pp. 26–7: ‘Shakespeare was merely . . . the psychic message of a
whole generation . . . wild, boisterous fellows . . . and the hot odour of blood still lingers
in their plays . . . incest, murder, evil-doing, crimes, the boundless tumult of human
nature indulges in a heated orgy . . . a rush of blood, an ejaculation, a uniquely wild
phenomenon prowling the world, seizing on its prey’. For Gundolf and the Shakespeare
cult in the George Circle, see R. Norton: Secret Germany: Stefan George and the Secret Germany,
Ithaca: Cornell University Press, 2002, pp. 270–1 and 337–8.
40 Schmitt, op. cit. (note 18), p. 68; Roman Catholicism and Political Form, trans. G.L. Ulmen,
Westport: Greenwood Press, 1996, p. 3.
 Like the osprey to the fish: Shakespeare and the force of law 111

41 Schmitt, op. cit. (note 20), pp. 24, 47 and 65. For a critique of Schmitt’s excitement
about Dutch freedom fighters and Elizabethan buccaneers as ‘a world historical
brotherhood that was cemented between political Calvinism and Europe’s emergent
maritime energy’, see Hooker, op. cit. (note 36), pp. 88–91.
42 Schmitt, op. cit. (note 20), p. 45.
43 See especially S. Greenblatt, Hamlet in Purgatory (Princeton: Princeton University Press,
2001), and R. Wilson, Secret Shakespeare: Studies in theatre, religion, and resistance (Manchester:
Manchester University Press, 2004). For the Left appropriation of Schmitt as a critic of
liberalism, see in particular A. Lefebvre, ‘The Political Given: Decisionism in Schmitt’s
Concept of the Political’, Telos, 132 (Fall 2005), 83–98. For the usefulness to the Left of
Schmitt’s anti-economism, see Michael Mander, ‘From the Concept of the Political to
the even of Politics’, Telos, 147 (Summer 2009), 55–76.
44 See H. Meier, Carl Schmitt and Leo Strauss: the hidden dialogue, trans. J. Harvey Lomax,
Chicago: University of Chicago Press, 1995. For Meier’s role in Schmitt’s post-war
theologization, see Müller, op. cit. (note 7), pp. 202–5. For ‘the infamous theological
twist’ in Schmitt studies, see M. Ojakangas, ‘Carl Schmitt and the Sacred Origins of
Law’, Telos, 147 (Summer 2009), 34–54, here 49.
45 Schmitt, op. cit. (note 20), pp. 39, 43 and 61.
46 Otto von Bismarck, speech to the Reichstag, January 11 1887, quoted in Johannes
Türk, ‘The Intrusion: Carl Schmitt’s Non-Mimetic Logic of Art’, Telos, 142 (Spring
2008), 88.
47 Schmitt, op. cit. (note 20), p. 43.
48 See in particular R. Wolin, ‘Carl Schmitt: The Conservative Revolutionary Habitus
and the Aesthetics of Horror’, Political Theory, 20 (1992), 424–47; ‘Carl Schmitt, Political
Existentialism, and the Total State’, in The Terms of Cultural Criticism: The Frankfurt School,
Existentialism, Post-structuralism, New York: Columbia University Press, 1992, pp. 83–104;
and The Seduction of Unreason: The Intellectual Romance with Fascism from Nietzsche to
Postmodernism, Princeton: Princeton University Press, 2004, pp.139–43 and 238–47. For
the aesthetic of Schmitt’s own style, see Gopal Balakrishnan, The Enemy: An Intellectual
Portrait of Carl Schmitt, London: Verso, 2000, p. 9; and for a commentary, see N. Levi,
‘Carl Schmitt and the Question of the Aesthetic’, New German Critique, 101 (Summer
2007), 27–43.
49 The Norton Shakespeare, S. Greenblatt, W. Cohen, J. Howard, and K. Maus (ed.), New
York: Norton, 1997, pp. 1833–4 and 1893; G. Chapman, The Iliad, A. Nicoll (ed.),
Princeton: Princeton University Press, 1998, 7: 232, p. 160.
50 Homer, Iliad, 18: 107.
51 Schmitt, op. cit. (note 20), p. 40.
52 G. C. Semenza, Sport, Politics and Literature in the English Renaissance, Newark: Delaware
University Press, 2003, p. 83.
53 J. Trussell, ‘To the Noble Disposed Ladies and Gentlewomen assembled at Whitson-
weeke upon Cotswold at the Revels then Revived and Continued by Heroicke Dover’,
in R. Dover, Annalia Dubrensia: Upon the yeerely celebration of Mr. Robert Dovers Olimpick Games
upon Cotswold-Hills, London: Mathew Walbanke, 1636, p. 45. See F. Laroque, Shakespeare’s
Festive World: Elizabethan seasonal entertainment and the professional stage, Cambridge:
Cambridge University Press, 1991, pp. 163–5.
54 B. Jonson, ‘An Epigram to my Joviall Good Friend, Mr. Robert Dover, on his great
Instauration of his Hunting and Dauncing at Cotswold’, in Dover, op. cit. (note 53), p. 21;
and Michael Drayton, ‘To my Noble Friend Mr. Robert Dover on his brave annuall
assemblies upon Cotswold’, ibid., p. 5.
55 L. Marcus, The Politics of Mirth: Jonson, Herrick, Milton, Marvell, and the Defense of Old Holiday
Pastimes, Chicago: Chicago University Press, 1986, pp. 5 and 155; ‘play remains an
economy’: Jacques Ehrmann, ‘Homo Ludens revisited’, Yale French Studies, 41 (1968),
112 Law and art: justice, ethics and aesthetics

31–57, here 42; R. Caillois, Man, Play and Games, M. Barash (trans.), Urbana: Illinois
University Press, 2001; J. Huizinga, Homo Ludens, New York: Roy, 1950.
56 Semenza, op. cit. (note 55): ‘poetic defences of the traditional sports were much more
than defences of the king’s policies on sport; they were also assertions of the poet’s right
to his vocation’ (p. 123).
57 G. Orwell, Collected Essays, Journalism and Letters, ed. Sonia Orwell, Harmondsworth:
Penguin, 1970, pp. 61–4.
58 See, for example, P. Levi, The Life and Times of William Shakespeare, London: Macmillan,
1988, p. 28: ‘I think the greyhound . . . must have been in the unreformed version of
the Cotswold Whitsun meeting . . . and that Shakespeare knew these country sports . . .
The key that fits this door is Robert Dover. Shakespeare knew him as a boy from
Barton in the Heath, and probably later as a lawyer at the Inns of Court’.
59 Huizinga, op. cit. (note 54), p. 13. For Schmitt’s problematic distinction between ‘normal
life’ and the state of exception, see David Pan, ‘Carl Schmitt on Culture and Violence
in the Political Decision’, Telos, 142 (Spring 2008), 49–72, especially pp. 56–7.
60 J. Harington, ‘A Treatise on Play’, in Nugae Antiquaae, H. Harington (ed.) (3 vols., 1779;
repr. Hildesheim: Georg Olms, 1968), vol. 2, p. 173; L. Montrose, The Purpose of Playing:
Shakespeare and the Cultural Politics of the Elizabethan Theatre, Chicago: Chicago University
Press, 1996, pp. 41–2.
61 S. Greenblatt, Renaissance Self-Fashioning: From More to Shakespeare (Chicago: Chicago
University Press, 1980), p. 220.
62 Ehrmann, op. cit. (note 55), 35.
63 C. Schmitt, The Nomos of the Earth in the International Law of the Jus Publicum Europaeum,
G. L. Ulmen (trans.) (New York: Telos, 2006), pp. 141–2.
64 J. Stratford, ‘To My Kind Cosen and Noble Friend, Mr. Robert Dover, on his sports
upon Cotswold’, in Dover, op. cit., (note 53), p. 48.
65 ‘Fraught with risk’: M. Marder, ‘Carl Schmitt and the Risk of the Political’, Telos, 132
(Fall 2005), 5–24, here 19.
66 For the distinction between games of chance and competition, see Caillois, op. cit.
(note 55), pp. 14–19.
67 N. Spivey, The Ancient Olympics, Oxford: Oxford University Press, 2004, p. 3: ‘Quite
apart from the fact that control of the sanctuary and its lucrative festival was several
times the cause of war, the whole site . . . was decked with spoils of armed conflict . . .
and the entire programme of athletic “games” could be rationalized as a set of drills’.
68 G. Chaucer, Troilus and Criseyde, B. Windeattt (ed.), London: Penguin, 2003, 1: 141–3.
69 L. Patterson, Chaucer and the Subject of History, London: Routledge, 1991, pp. 109–10.
70 J. Pratt, Chaucer and War, Lanham, N.Y.: University Press of America, 2000, pp. 53–4
and 69; Chaucer, op. cit. (note 68), 2: 754; 4: 460; 4: 1345–6.
71 Ibid., 1: 148–168; 1: 866–8; 4: 1629; 5: 304.
72 K. Ryan, Shakespeare, Basingstoke: Palgrave, 2004, pp. 123–4. See also S. Marx,
‘Shakespeare’s Pacifism’, Renaissance Quarterly, 45 (Spring 1992), 49–95, especially 71–5.
73 Caillois, op. cit. (note 55), pp. 88–9; René Girard, A Theater of Envy: William Shakespeare,
Oxford: Oxford University Press, 1991, pp. 157–8.
74 J. Kott, Shakespeare Our Contemporary, Boleslaw Taborski (trans.), London: Methuen,
1964; Girard, op. cit. (note 73), p. 158.
75 H. James, Shakespeare’s Troy: Drama, politics, and the translation of empire, Cambridge:
Cambridge University Press, 1997, pp. 97–8; W. Benjamin, ‘The Work of Art in the
Age of Mechanical Reproduction’, in Illuminations: Essays and Reflections, H. Zohn (trans.),
London: Jonathan Cape, 1970, p. 222. For the biographical dimension, see A. Barton,
Shakespeare and the Idea of the Play, London: Chatto & Windus, 1962, pp. 182–3:
‘Shakespeare may have been troubled by comedians who elaborated their own parts to
 Like the osprey to the fish: Shakespeare and the force of law 113

the detriment of the rest of the play . . . Some sense of personal rancour . . . seems to
inform his picture of the “strutting player whose conceit/Lies in his hamstring” ’.
76 The classic reading of this pause remains C. Leech, ‘The Hesitation of Pyrrhus’, in
The Morality of Art: Essays Presented to G. Wilson Knight, London: Routledge & Kegan Paul,
1969, pp. 41–9. But for antecedents see also C. Belsey, ‘Senecan Vacillation and
Elizabethan Deliberation: Influence or Confluence?’ Renaissance Drama, 6 (1973), 65–88.
77 ‘An antidote to violence’: Svetlana Alpers, The Vexations of Art: Velazquez and Others,
New Haven: Yale University Press, 2007, p. 129. See also Leo Bersani and Ulysses
Dutoit, Caravaggio’s Secrets, Cambridge, MA: MIT Press, 1998, pp. 98–9.
78 ‘Virtuoso of interruption’: Simon Schama, Rembrandt’s Eyes, Allen Lane, 1999, p. 605.
For a redemptive interpretation of Rembrandt’s 1635 painting, see Steven Shankman,
‘Justice, Injustice and the Differentiation of the Monotheistic Worldview: Reflections
on Genesis 17, 20 and 22’ in Differentiation and Integration of Worldviews: International Readings
in Theory, History and Philosophy of Culture, 19 St. Petersburg: Hermitage, 2004, 201–11.
For reflections on the Kierkegaardian and Levinasian readings of the Biblical episode,
see Jacques Derrida, The Gift of Death, trans. David Wills, Chicago: Chicago University
Press, 1995, Chap. 3.
79 Greenblatt, op. cit. (note 61), p. 220.
80 Caillois, op. cit. (note 55), p. 46.
81 Erhrmann, op. cit. (note 55), 55.
82 Schmitt, op. cit. (note 20), p. 18.
83 Francis Barker, The Culture of Violence: Essays on tragedy and history, Manchester: Manchester
University Press, 1993, p. 71.
84 Schmitt, op. cit. (note 20), p. 45.
85 W. Scheuerman, Carl Schmitt: The End of Law, New York and Oxford: Rowman &
Littlefield, 1999, p. 71.
86 ‘Take away these baubles’: Oliver Cromwell dismissing the Rump Parliament, quoted
by Sir Edmund Ludlow, in C. Hill, God’s Englishman: Oliver Cromwell and the English
Revolution, London: Weidenfeld and Nicolson, 1970, p. 136.
87 J. Derrida, The Politics of Friendship, G. Collins (trans.), London: Verso, 1997, pp. 107,
n. 4 and 169, n. 32.
88 See, in particular, E. Fernie, ‘Introduction: Shakespeare, spirituality and contemporary
criticism’, and ‘The last act: presentism, spirituality and the politics of Hamlet, in Spiritual
Shakespeares, E. Fernie (ed.), London: Routledge, 2005, pp. 1–27 and 186–211. See also
S. Žižek, ‘Carl Schmitt and the Age of Post-Politics’, in The Challenge of Carl Schmitt,
C. Mouffe (ed.), London: Verso, 1999, pp. 18–23.
89 S. Mallarmé, ‘Hamlet et Fortinbras’, Revue Blanche, July 1896, repr. in Mallarmé: Selected
Prose Poems, Essays, and Letters, B. Cook (ed. and trans.), Baltimore: Johns Hopkins
University Press, 1956, pp. 139–40; J. Joyce, Ulysses, R. Ellmann (ed.), Harmondsworth:
Penguin, 1968, p. 187.
90 Schmitt, op. cit. (note 20), p. 51. For the anachronistic allusion to Aristotle, see W. R. Elton,
‘Aristotle’s Nicomachean Ethics and Shakespeare’s Troilus and Cressida’, Journal of the History
of Ideas, 58 (1997), 331–7.
91 Mallarmé, op. cit. (note 89), p. 139.
92 T. Eagleton, William Shakespeare, Oxford: Blackwell, 1986, p. 1.
Chapter 6

Agonic is not yet demonic ?

At the be-ginning there will have
be-come a de-cision
Oren Ben-Dor

“God’s appearance through the sky consists in a disclosing that lets us see
what conceals itself, but lets us see it not by seeking to wrest what is concealed
out of its concealedness, but only by guarding the concealed in its self-
concealment…taking which at no time clutches at the standard but rather
rakes it in a concentrated perception, a gathered taking-in, that remains a
listening”.
M. Heidegger,…Poetically Man Dwells…

‘Critical thinking’ and the subjectivity it generates and perpetuates does not yet
touch the very opening of the notion of truth as dis-closure, remaining in [in]
correctness-bound horizon of truth of ‘disclosure’. Both in decision and in critical
thinking, decision and undecidability, involvement as well as deferral, remains
agonic – conflict- and contest-bound, ‘other to . . .’, already based on the punctu-
able remainder of punctuation thus never genuinely mysterious vis à vis the jurid-
ical – falling away from the decisive opening that will have been. Agonic thinking
on the horizon, and edge of, beingness is always already grounded in what I call,
following Heidegger, demonic – a notion that connotes an originary divine power
of de-cisive refusal of art to both the juridifiable potential of deciding the excep-
tion and its agonic undecidable surplus. Agonic thinking, I merely gesture in this
chapter, is still legal and moral, and does not yet touch its gift of origin as the
demonic agonia – suffering of the artist’s de-cision of being in the midst of the
demonic oppressive earlier fateful de-cision. A question mark hangs over whether
left political thinking, which is always already comported towards, and thus arrests
actuality in, what ought to be done, as well as the audibility of such ‘oughtness’
to the legal, can respond to demonic de-cision which calls and which refuses it as
its origin.

Aboutness
1. Fate, and the fate of law, as a de-cision, can never be sealed, not even sealed
as the ongoing becoming of the legal and the just.
 Agonic is not yet demonic? 115

2. To what extent is the aesthetic process and practice of legal ethical re-
politicisation not itself in a sense a ‘substance’, thus still becoming in a sense
still external to its own essencing?
3. A mere opening for questioning is suggested here: the philosophy of law has
yet to become mindful of its strange origin as art and violently overcome the
silencing of such mindfulness exhibited by the entrenched obliviousness of the
‘emancipatory politics’ that inspires critical thinking and, in turn, critical legal
thinking.
4. In ‘Force of Law’ Jacques Derrida maintained that the becoming-other of law,
the traversing of the undecidable and non-deconstructable justice-to-come is
the [im]possible immanent beginning in, and of, law. The aporetic beginning
of law [Hebrew – bereshit] happens as the very violence and exclusion that
characterises legal decision as well as by the oppression of its subsequent
rationalisations. Traversing the [im]possibility of such beginning, however, has
the capacity of maintaining both hope and disillusionment critical lawyers
have for the becoming justice in the law. Justice-to-come, the deferral, is jurid-
ifiable and sustains vital [im]possible, aporetic, transparency to the critical
thinking with and through law.1
5. As beginning of law, undecidable justice-to-come precedes all law but never-
theless constitutes a mystical, non exhaustable, yet still juridifiable surplus,
one that is mirrored to law and audible to law as a legal argument-to-come;
one that is always deferred at the very happening ‘now’ of the exclusion of the
legal decision. A legal decision which traverses enforces and chases justice also
performs violence towards Justice. The traversing-lurking of that ethical
surplus, the [im]possible and undecidable Other, re-constitutes the force of
the law of laws, its violence (Gewalt), whose authoritative trace still always
de-legitimises any sovereign claim to be a legitimate authority, which is itself
based on sovereignty of presence (Being). Undecidability refuses the legal
decision, but nevertheless constitutes a boundary that is transparent to the
legal as its own justice-to-come, pure potentiality-to-be. The wrestle of
undecidability – the deciding in the face of the impossible to decide – the
inaugurating the ‘perhaps’ into law, is thus deferring, endlessly revitalising
the ‘becoming’ of law, the possibility for its absolute hospitality, as it responds
to the demands of non-deconstructable justice.2
6. But does not the notion of truth remain somewhat idle in this movement where
very decision that traverses undecidability, a movement that ‘mystically’ pre-
serves the law through its ethical suspension? In turn, is there no murky zone
between the ‘perhaps’ and the ‘decisive’, one that preserves the authority of
law as still somewhat idle, not comporting to earlier de-cision that refuses it,
and whose authority is most sophisticatedly silenced?
7. Can the very truthfulness-to-come that sustains the becoming of this refusing
undecidable, one which is harboured in the very notion of [im]possibility, be
subject to critique? What is it to refuse the juridifi-able undecidable? This
chapter is but a tiny prelude that prepares for a meditation on such refusal of
116 Law and art: justice, ethics and aesthetics

both undecidability and the alleged primordiality of the boundary it creates

between law and justice. To wit: for justice, the due which is owed, to be
non-deconstructable, as Derrida maintains it is, the very juridifi-ability of the
gesture of de-construction must be subjected to critique. Is the untruth of
undecidability, as yet, untruth-proper?
8. It might well be that undecidability transcends any ‘truth’ of legal decision
by encapsulating law’s characteristic of becoming-other by traversing the
boundary of the ‘legal’ with other fields such as ethics and politics. The very
actuality as well as the notion of truth that characterises the persistence of the
boundary that constitutes a common neighbourhood of undecidable and
critical thinking – the boundary the constant reconfiguration of which allows
critical translatability between the legal, the ethical, the political, whatever
the machinational account one wants to give of that translatability – has,
perhaps, itself to become question-worthy. The inquiry has to pursue the
question-worthiness of the very notion of truth and critical thinking that
the undecidable immanence within law maintains in order for it to facilitate
the continuous operation of such a transparent boundary between legal,
ethical and political and, in turn, critical activity.
9. Thinking about the very aboutness of the boundary that undecidability can
bring about – undecidability whose radicalisation of otherness is still capable of
becoming an account of facts and norms in law, ethics and politics, and thus one
which constitutes a horizon between truth-to-come and power – in idealism,
realism, inter-subjectivity and last but not least, the epistemic closure and
immanence of system theory – may well have not yet contemplated the very
notion of truth that happens earlier than the explanatory ‘sense’ that can be
made in each in relation to the interpretative ‘beginning’ of law, ethics and
politics.
10. A conundrum: in what true and actual sense can a refusal to the becoming
of the legal be audible to, and in complimentary with, the legal and be so as
such refusal?
11. Dwelling on the happening of art is a preparation for responding to what is
thought-provoking in the nature of the boundary as well as in the strange
complimentarity between the happening of art and the happening in which
‘art’ and ‘aesthetics’ is being encountered already for-the-sake of traversing
juridifi-able undecidability. Can the refusal embedded in that law which
art[ist] obeys, and which points to an essential connection between law and
art, ever be a refusal which can be deployed by thinking critically with and
through the legal, anticipating the legal’s critical becoming?
12. Can the very moment of that response which constitutes a decision and which
is distortingly explained and to some degree rationalised after the decision
be similar in both art and law? Is there any complimentarity between the
judge’s inaccessibility to that which he responds to/excludes/oppresses in his
decision – which constitutes the bedrock for critical thinking-to-come, and
the artist’s similar inaccessibility? Do these two inaccessibles connote the
 Agonic is not yet demonic? 117

same sense of impossibility? Could that which is inaccessible to the judge in

his decision be mysteriously grounded in that which the artist merely points
to and preserves? Furthermore, could the origin of the judge decision be
grounded in art in a manner which is heavily distorted by grounding that
inaccessibility of the judge in juridifiable undecidability?
13. How, then, is beginning in decisions and reasoning by judges in case law?
How is beginning by the artist’s decision and reasoning in the work of art? On
the face of it there is much similarity. Both the manner in which reasoning
given in the legal decision evolves, re-read, or re-written by future visitors could
lead to the conclusion that a legal case is not only similar to a work of art, but
even could be seen as one – one which is decided upon at its intractable moment
of creation, intractability which is patiently re-encountered afterwards. But is
this the case?
14. To be sure, there is creativity and judgment that precedes a decision by a
judge in a court of law; there is creativity in the explanation and rationalisa-
tion of the decision and its relatedness to the reasoning of decisions of earlier
‘texts’; there is creativity that leads to a subsequent ‘decision’ by the lawyer, a
future reader of the text, who advances an argument that explains and ration-
alises this decision and which builds on that which the judge’s past decision,
as well as his subsequent reasoning, exclude. How does the actuality of this
creative cycle of decisions, exclusion, reasoning and argument differ from the
artist’s creative process and decision that bring-forth the work of art? What is
that ‘it’ and ‘there’ to which judges and artist respond in their creativity, decisions
and anticipations? The conundrum again: could it be that all these are
grounded in a law that art, but not critical legal reflection, can respond to
despite critical legal reflection being mysteriously grounded in this law?
15. In mainly reading three of Heidegger’s works: ‘The Origin of the Work of
Art’ (hereafter OWA), Mindfulness (hereafter M) and Parmenides (hereafter
Parm.),3 a connection, indeed an essential one, between law and art can be
grasped but, as I will argue, not one that is for-the-sake-of critical thinking
along which praxis and phronesis are grasped, but one that refuses that ‘ought’
which is comported towards creativity that encompasses constant insurgency
to and re-containment by the very thinking that does things with standards,
norms, rights and duties.
16. To begin is to originarily point/indicate at essence. As Heidegger reminds in
A Dialogue on Language, Hermeneutic relates to the Greek word hermeneuein and the
noun hermeneus referred to Hermes – the divine messenger. Hermeneuein is that
exposition which brings tidings because it can listen to a message. It is not just
interpretation and indeed application, but, even before these, the bearing of
message. More primordially than interpretation, it is pointing and responding
to a call, being a respondent to that which has called, being responsible. To
do hermeneutics, as a poet, is to be the messenger-interpreter of the Gods
as Socrates surmised to Ion in Plato’s Ion.4 What is Hermes’s message and
how is it carried and given to mortals? What is it to be in the ‘happening’ of
118 Law and art: justice, ethics and aesthetics

the message, and in turn, to encounter it? How can beginning be conceived
as pointing at the origin of happening? Perhaps more, in what sense
might beginning be earlier than the beginning of pointing and yet belong
to it?
17. In retaining the character of decisive pointing hermeneutics is grounded
in mindfulness, in understanding. A refusal of interpretation however
critical this interpretation might be, as well as preservation of this refusal in
a decisive saying, thus grasping the for-the-sake-of-which of interpretation
as the oblivion of primordial ‘aboutness’, is to be mindful. Philosophy is to
have the sight for what is essential5 – an essential sensibility for primordial
aboutness. For the philosophy of law to become mindful of itself, pointing
at the essential unfolding of law, is to let the unbearable oppression of refusal
to the lure of praxis and phronesis of critical legal thinking hold sway of that
aboutness.
18. Art, techne-, connotes ‘art’ not in the sense of crafting of making and a masterful
know-how. More originarilly, techne- is the happening in which bringing-forth-
through-violent knowing-awareness manifests. It also means bringing-forth in
a manner that retains the willing of being in the lightening of the uncon-
cealed. Art as poiein and poie-sis also connotes bringing-forth. Techne- means
‘care’, that is: ‘acquired capacity to carry something out which, as it were, has
become second nature and basic to Da-sein, ability as behavior that accom-
plishes something, then the Greek says melete-, epimeleia, carefulness of concern.
Such carefulness is more than practiced diligence; it is the mastery of a com-
posed resolute openness to beings; it is “care”’.6
19. The essence of law and justice, as the goddess dike-, is nothing that pertains to
the legal or moral – nothing undecidable that can be immanent in law. Dike-
is the decisive own care of be-ing that is bestowed upon mortals as the call of
be-ginning. The overpowering order of be-ing consists of the quiet power
that protects mortals in their essence not as juridifiable beings that traverse
impossible possibility – undecidability – but rather as de-cisive guardians of
be-ginning. Justice is grasped as the due to be paid back and which is impressed
by this order. That due arises as the very unfolding of actuality – of the ‘is’ –
that ‘towards-which’ for-the-sake-of-which mortals are always protected.
Mortals always stand understandingly (vor-stehen – standing before – old German
for ‘understanding’) in debt before what is due as the temporal gift of that
which dis-closes as a sense of appropriateness and just, in that which happens
at the appropriate time.7
20. Understanding: standing-before, encountering, the traceless trace of the earlier
de-cision. Vor-stehen is not a ‘before’ but an earlier, thus ‘earlier-standing’.
To understand – to earlier-stand and to de-cide – is to respect the decidedness of the
uncanny thus letting the earlier de-cision stand (stare decisis).
21. Philosophy: resisting the ‘resistance’ of critical thinking. Dike- protects the eye
for the essential – the sight and the gift of love, of wisdom – the essential injus-
tice that pertains to the presencing movement of the earlier ‘is’ that can not
 Agonic is not yet demonic? 119

be disempowered. Dike- refuses the distantiality of any lure for crafting that
adorns ‘ought’-based critical thinking, one that subsumes what it conceives as
endlessly unjust factual ‘is’ and which, in turn, mourns the tragedy non-
attainability of Justice. A change in aboutness alters attentiveness to the due
owed conceiving the doing of Justice as the saying of that showing of essential
injustice that is the gift of be-ing to mortals. The actuality of the actual is
that which is given by be-ing as injustice, as a refusal by being, as be-ing.
Without injustice there is no opening for actuality – actuality happens as
injustice. It is not actuality that causes ‘injustice’ to be responded to and rem-
edied but rather injustice which happens as ‘the place of the due’ of actuality.
Being responsible is never to pose the arrogant gesture of criticising what ‘is’
deploying an epistemological account to that end. Being responsible attends
to and preserves the mystery that governs what is due in the very happening
of the ‘is’.
22. In so protecting dike- orders, that is assigns to, indicates to, mortals. That
assignment is concealed from mortals in the very whilst of its being given to
them. Nevertheless, mortals must obey that order, are always already thrown
into the mysterious injustice of it, injustice that has no outside that can serve
as the perhaps of the undecidable. Undecidability’s humbleness is in actuality
silencing of its provocation to essential injustice.
23. The openness of the constitutional place (topos), into which mortals are thrown
and thus dwell together in [in]justice is the polis. Polis being grasped as that
dwelling place, the always-already-too-nearest of the agora, the essential
abode–the ‘district of the uncanny’ rather than critical necessity, the place
where the strange dwells.8 Dike- calls humans to respond to the due that arises
as the uncanny from everything ordinary understood as the familiar ambit of
beings and their beingness. The uncanny is immeasurable by any standard
and yet it is the clearest. The uncanny is like a ‘shadow of a cloud silently
passing’, free from calculation, planning and the fangs of the will.9 It is incon-
spicuous and strange rather than exaggerated and weird.10
24. The polis is work of art and as such it is the place where art dwells. The polis
is no critical utopia-to-come: ‘. . . everything “political” is always only an
effect of the polis. . . . i.e, of the politeia. The essence of the polis . . . is not itself
determined or determinable “politically”’. The polis is a place for ‘a recollec-
tion of the essential and not a plan for the factual’.11 Beginning is not for the
sake of ‘possibility’ especially not political possibility even if this possibility
traverses the impossible. [Im]possibility, a perhaps, is not yet in the whilst of
the happening of polis. The origin of the polis sustains the refusal – not of nega-
tion or inclusion/exclusion but of nearness – of that critical thinking that man-
ages to critique, and thus to commerce with, the re-emergence of a paradox
of constitutionalism and undecidability, a paradox in which a surplus of con-
stituent power always survives its location within already constituted power.
The origin of polis refuses, is nearer than, the ‘yes’ of possibility craved for by
any thinking that is in any manner able dwell with this paradox.
120 Law and art: justice, ethics and aesthetics

Truth as un-concealedness and dis-closure

25. Truth of be-ginning, as the early Greeks experienced it, is characterised as the
veiled or concealed showing of clearing of unconcealedness (a-letheia)12 which
is more than simply revealing something concealed. Unconcealedness does
arise from beings but at the same time refuses both beings and their being-
ness. A move that explores possibilities of beingness, becoming-other of being-
ness, is not yet a move that sustains the showing of unconcealedness.
26. The Greek word pseudos which attaches itself to unconcealedness (a-letheia) is
conventionally translated as ‘false’, ‘fake’, ‘untrue’. But this is not how the
early Greeks grasped it. The early Greeks understood falsity not as incorrect-
ness but rather as concealedness or ‘hiddenness’ in the sense of veiling and
sheltering. In the same way a-pseudes did not mean ‘without falsity’ but rather
un-hiddenness.13
27. The early Greeks grasped the essence of unconcealment as concealment,
both belonging to the same unified movement. The concealed is grasped
as such – without concealment – in a moment of clarity that preserves the
veiled. What shows is always in a sense ‘not’ and opens up, clears, as ‘not’ –
a ‘not’, to remind, which is other to the not-yet of beingness, refusing the
‘perhaps’ economy of correctness and falsity. Essential concealedness
connotes not falsity in the sense of ‘the false’ but rather something that is
brought forth secretly, in a concealed way and which keeps itself concealed as
it discloses.14
28. Thus unconcealedness connotes a strife to near that which emerges in a
self-concealed way. It is concealment which is primordial as the essence of
truth or untruth-proper (rather than untruth as false) but there is also a strife
that comes with this concealment – as the call of the veiled un-concealed.15
The strife connotes refusal to any process that reinforces correctness and
falsity.
29. The notion of ‘false’ grasped as untruth-proper – concealedness – rather than
as incorrectness, like a good pseudonym, brings forth the essence of some-
thing into the open while concealing it too. Crucially, incorrectness, fake,
inauthentic, all these notions do assume some happening of that mixture of
concealedness and unconcealedness, veiled uncovering which at the same
time lets-appear. A-letheia is a showing that holds-forth and at the same time
holds something back that essentially concealed showing – as the opening
of the open that happens before any opening of [in]correctness. That
which emerges is always simultaneously hiding of the nearest – dissembling
concealment.16
30. Truth of beginning is not beginning that is oriented in correctness and thus
can not be dependent on a connection between subject and object. As the
movement of a-letheia both thinking ‘subject’ and object of thought cease to be
united in the truth of present-at-hand ‘things’ and present-at-hand ‘time’ as
sequence of substantive ‘nows’ as well as in the correlative transience of
 Agonic is not yet demonic? 121

‘becoming’. Unconcealment self-conceals as a temporal withdrawal that

creates a rift in, a refusal to, any substantial positive beingness of beings – a
refusal which persists as that strange ‘it’ that emerges in advance to any
‘suchness’ that characterises craving for truth as correctness to which the very
opposition between being and becoming pertains.
31. Unconcealedness is the mystery of the self-sheltered uncanny flickering nearest.
Mystery calls where the essential concealedness of the unconcealed, in a
double movement, dissembling, conceals that it conceals.17 The double conceal-
ment gives rise to the flickering ‘it’ which is always obliviously received by
thought as a ‘yes’ towards which performative configuration, and thus creative
interpretation, is comported. The is-ness of ‘it’ always calls as doubly self-
concealed movement which temporally presences as a veiled event, namely
as the traceless trace – the abyssal actuality of the actual. The essential obliv-
iousness of the mystery comes as anxiety and distress for the vigilant – for
those who grasp the mystery amidst the ordinary – rather than [in]correctness.
The truth as mystery oppresses as inexpressible strangeness that generates the
dismay that sets free.
32. A-letheia is the open and not merely a happening that is compossible with
truth as correctness.18 The complimentarity of strangeness between ale-theia
and correctness manifests as one movement that becomes possible, as we
shall see, because of falling into essential errancy and obliviousness that double
concealment brings in its wake.
33. The insight of double concealment is far reaching as it leads to the grasping
essential openness as refusal. Dis-closure is not merely the removal of, or
being in opposition to, concealment. The dis-closure shows in essential unity
with en-closure that is essentially connected to it. The disclosure is for-the-
sake-of enclosure; ‘sheltering the unconcealed in the unconcealedness of
presence’ or ‘[bringing] into a sheltering enclosure: that is, to conserve the
unconcealed in unconcealedness’. Dis-closure is removal of concealment but
which shelters enclosure hence dis-closure: ‘“Disclosure” understood in its
full essence, means the unveiling sheltering enclosure of the unveiled in
unconcealedness. It itself is of a concealed essence. We see this first by looking
upon léthe and its holding sway, which withdraws into absence and points to a
falling away and a falling out.’19 The oneness of the mystery is not numerical
oneness but the dwelling place of the continuous, of the way. ‘A-letheia is against
concealing closure’ (it is the very happening of the open – beginning, way) and
in this resistance (the resolute refusal in art I will soon claim) it is for sheltering
enclosure. Although everything appears as beingness of a being and thus as
true or false (Richtigkeit), a-letheia refuses that appearance and it is this refusal
which constitutes the openness for perception, or, perceivedness, as we shall
see, the ‘look’. The sheltering of the movement is steered, as both logos (word)
and nomos (law),20 not as a re-presentation by steering humans for the sake of
humans (legal), but as a presencing song, for the sake of which the disclosed
becomes unconcealed and thus opens up the place where the refusal is preserved.
122 Law and art: justice, ethics and aesthetics

Rather than interpreting, Hermes’s message points towards the essentially

concealed mysterious nearest.
34. Grasping the refusal of the unconcealed which constitutes the open is crucial
for grasping the refusal to anything that facilitates opening to the ‘legal’ to
come, ‘moral’ to come, ‘aesthetic’ to come and last but not least, as constitut-
ing the place of dwelling, the political abode of the polis, the ‘political’. Polis is
the time and place in which the vigilant mortals dwell together in the mystery
of dis-closure. Beginning is the essence of a-letheia. A-letheia essences beginning.
35. A-letheia is the earliest opening. Beingness is still ‘a trace of an uninterpretable
traceless trace’.21 Beginning remains strange to, refuses, any interpretative
beginning that begins as the contestation of ‘uncritically accepted’ conven-
tional interpretation.
36. When interpreting, the call disappears in the interpretative openness and
loses its significance for thinking. The eye for grasping the primordial abouting,
the flickering relinquishing of subjectivity in hearing, is turning by interpretation
into something which is a mere pre-interpretative possibility.

The awe of decision

37. The essence of mortals lies in what the ancient Greeks understood the notion
lanthanesthai which mistranslates as ‘forgetting’, but which for the Greeks meant
concealing the very sinking of the disclosed into concealment. The very move-
ment of ale-theia constitutes one aspect of essential ‘forgetting’. However, this
forgetting has another aspect of it, forgetfulness, which was elsewhere referred
to by Heidegger as the counter-essence of truth or error/errancy, errancy
that manifests itself epochally and as such has its own historicity. This sinking
is precisely the ‘not’ that is grounded in the double concealment and in turn,
that enables thinking to be essentially oppressed by the opening/essencing of the
essence of truth as dis-closure, as opening of, and encountering the positivity
of the no-thing as untruth-proper, as dis-closure.22 Error characterises a falling
away into the perceivedness of nearness which is always already distanced and
temporally belated.23 The ‘forgetter’ is kept concealed to himself remaining in
ek-stasis.24 To the exclusion of that which is forgotten from the forgetter
Heidegger referred to as oblivion or better, the forgotten notion of ‘obliviation’.
Obliviation characterises the essential missing out of something which is nearest.
As oblivion, forgetting does not mean a mental state of forgetfulness by a sub-
ject and as a subject, that of ‘not retaining something’ or ‘memory disturbance’
by a subject. In a sense which not reducible to subjectivity and arguably even
to desire which essentially splits the subject, in their course of their mortal life,
humans permit that which is essential to escape. Mortals are always already
essencing by permitting something to be concealed in thinking, unheeded as
part of the very ‘aboutness’ that pertains to thinking. This state is not conditioned
by human negligent thought and action. Rather, it is always earlier thrust into
‘obliviation’, the double concealedness of Vergessung.25
 Agonic is not yet demonic? 123

38. Resorting to Pindar’s Olympic Ode, Heidegger contemplates the notion of

‘awe’ (aidos). In considering awe he goes more primordially to point at the
origin of anxiety, the essential abyssal hanging, which, as a result of Being and
Time, and together with boredom,26 is conventionally taken to be the main
mental states that move thinking-being. Awe arises out of grasping a-lethia,
with knowing-awareness of obliviation – a sublime awareness. This is never
beatitude which is a Christian notion of blessedness that pertains to quality of
the human soul – a species of happiness. Awe, rather, connotes being in the word
(logos) of the myth with the gods, namely in the midst the doubly concealed
thrust, manifests as a flickering call or a veil, of the swaying of be-ing. It is as
awe that the essence of art looms large and the place of man in relation to
Being as the uncanny understood as demonic (daimonikon). Awe comes from
ungraspable be-ing itself as the essential inwardness of mortals27 much earlier
that disinterestedness that can open the door to phenomenology.
39. Awe disposes us and ‘[is] not a feeling man possesses but a disposition, as
the disposing, which determines his essence, i.e., determines the relation of
Being to man’.28 Awe manifests as the knowing-awareness or grasping of
own-essence, namely that humans are disposed to obliviation. The sublime is
the oppression of own-grasping as always already being owned by be-ing in a
way which can not merely be reduced to the human making sense of that as
the correctness/incorrectness of the beingness of beings, their own so-called
‘personal causation’ and histories as subjects.29 To be in art – to be the lover
of be-ing in awe, to be a respondent to that ‘hyphen’ – is to realise that ‘there
is much in being that man cannot master’30 and yet of which he has to be a
supreme vigilant messenger.
40. Awe opens as language. Awe happens in a grasping openness to the showing
of the uncanny. Awe happens as the grasping of ‘thereness’ without a mediat-
ing representational idea, in all its suddenness, being in the midst of the essen-
tial injustice and the obliviation of be-ing, in dis-closure, with absolute clarity.
Awe is humbleness before own-ness by be-ing in the no-outside of temporality
as the disposing earlier, as a concealed way of beings towards be-ing. In awe
mortals are understandingly set on the way. Grasping in the midst of oblivia-
tion, on the way, is also to chase a traceless trace by conveying the essential
belatedness of the response to a grasped call of be-ing. Awe happens as con-
templative unlearning any crave for steering [in]correctness.
41. It is be-ing as the temporal earlier, be-ing, that sustains awe over the ‘to be’
and the ek-sisting temporally presencing. Being’s own-concealedness is the
origin, the awe that comes about in the whilst of encountering the refusal as
the open. Beginning is veiled, dis-closed, because ‘Being is protective of its
own essence’.31 Awe originates as it is be-ing that temporally will have de-cided.
Decision is not a contrivance of man but belongs to the refusal of be-ing that
temporally appropriates man. De-cision is a fore-structure of a call by be-ing
which will have de-cided and the exuberance of Da-sein who is in awe in the
t[here] of the polis, Da-sein that de-cides too, in awe, as being owned by be-ing.
124 Law and art: justice, ethics and aesthetics

Neither can be-ing be grasped as an object (being, beingness of . . .), nor

da-sein as a subject. As refusal, be-ing is not subject to any human [im]possible
discrimination about and between beings.32 It is be-ing that steers through
mortals not mortals who steer – awe happens as the relinquishing of the
steering ‘I’ in absolute obedience, freely and understandingly into the de-cision.
It is the temporality of the refusal itself in which mortals are thrown, owned,
as awe-inspired. This self-protection by be-ing, its refusal and the obliviation
and clarity of its showing to mortals, is, both temporally and in relation to
thingly character of things, a de-cision of beginning, a-letheia of origin that
comes as future – prophetic. To begin at beginning is to grasp, to see, to hear
in awe that own-ness has already been de-cided as be-ing, a de-cision which
is given as the sheltered gift. To be-there-with as mortals (Mitdasein) is to dwell
together in awe that silently grasps the essential injustice that stems from the
already de-cided own-concealment of be-ing.33
42. The due, injustice, that arises from what is, which always double conceals –
refusal, is the origin of justice. [In]justice can only be grasped in awe and thus
with a response that sustains obliviation as such. The due always comes back
to haunt as the is as such and not amenable to human disposition of what is
already with a view to what ought to be done. An analysis of what is with a
view of finding what ought to be done, however radical this imperative is as a
process of becoming-other, is devoid of awe – could not be more distanced
from awe.
43. How could we account for violence in the age when critical thinking does
not see that it can not think its own origin any more thus its obliviousness
tragically becomes devoid of awe as rootless undecidability? How could be-ing
protect itself in such an epoch when metaphysical thinking is oblivious even
to its conclusion, obliviousness that manifests as radical ‘becoming-other’?
How can we account for the uncanny that shows itself amidst the ordinariness
of critical thinking about what ought to be done, one that is steered by the
subject for the sake of the subject?
44. Awe thrusts resoluteness [areta].34 The no-choice of being resolutely com-
ported in care for the uncanny brings awe. If care (Sorge) is to be understood
primordially it is not quite a care towards Dasein’s [im]possibility but as awe
towards the own as being owned by be-ing ‘in the domain of daimonion’.35
Care about be-ing, awe, is not human-based care towards beingness, including
the beingness of another human subject. It is towards that mystery in which
all guardians of be-ing dwell. Guardianship haunts any derivative care, and
the space of the guarded house of Being is never an ontical metaphor of inside
and radical outside (an Other) but is always the near/far movement of double
concealment that has no outside.
45. Resoluteness is not quite ‘virtue’ or ‘suitability’ or ‘performance’ but rather
‘the emergence’ and opening up and insertion of man’s fundamental essence
to being. It is resoluteness [areta] as inspired by awe [aidos] both having
the same stem of the Latin word ars the word that took over from in Greek
 Agonic is not yet demonic? 125

techne-, art. Art, then, is the uncanny innermost own call of mortals. Strangeness/
uncanniness mark mortals’ belongingness to the sustaining/preserving/
enduring of awe by be-ing, grasping be-ing’s essential gift, es gibt, the ‘there’ of the
‘is’, that is sheltered through obliviation. The order of be-ing, dike-, protects
be-ing’s de-cision and mortals, in art, wrestle that protection. In sustaining
awe through dis-closed double concealedness be-ing entrusts mortals to a
place of violent-knowledge – the [t]here of the polis. Mortals, who resolutely
and concernfully relinquish their dominion over be-ing in their historicity of
errancy, sublimely and violently world their ownness towards the worlding of
be-ing. Techne- and dike- are in strife precisely because both have common
essence in a-lethia which calls from beneath beings as the uncanny whilst
which doubly-conceals and self-protects as awe.36
46. Art as the riddle of aiesthesis, the realm of sensual, of perceivedness, is not
‘aesthetics’ and can not be reduced to the useful politics of critical thinking
that is brought about by the stakes of ‘aesthetics’. It is a riddle that has to be
traversed as awe, a riddle which sees, a doubly concealed reflected judgement
that calls.37 Art subjects aesthetics to dis-closure. Art connotes openness to the
emergence of the essence of awe. Dike- protects be-ing in protecting mortals as the
awe-ing vigilants. It also orders, that is ‘demands the struggle for what is its most
ownmost sway’.38 In essencing mortals into the strife/struggle be-ing’s call is
decisive that is be-coming, it essentially protects mortals from the ordinariness
of ‘critical’ struggles, however revolutionary they might be, by coming back
despite engagement in the praxis of such struggles. The essence of praxis
(action/Handlung), being at hand, is not contestation for the sake of suppressed
possibility, limited range of possibilities, or the exploration of the reasonable.
Praxis does not connote originarily man’s activity (actio) but rather decisiveness
towards the happening of the veiled open – comportment towards the dis-
closed in care – to maintain the essential ‘in good hands’.39 (The essential
grasp of praxis informs the notion of cre-activity below.) The order of be-ing,
dikē, its gaze, preserves the dismay that sets free. It is be-ing that de-cides40
and mortals respond to that decision as de-cided, grasping that earlier decid-
edness of their way in awe, obedience and freedom. To let, in responding to,
the earlier de-cision steers, and stands, is to hang as free in the opening of
logos/nomos as technē (art).
47. This fore-structure of de-cision shows itself always even in the face of steering
power of resistance that characterises human critical ‘activity’ or ‘affairs’ that
feigns to be the most actual possibility that has been held up by human
‘action’. It is because mortals are de-cided by the de-cision that they respond
in de-cision through which they ek-sist nearer to any decision about being
and their beingness: ‘in such areta, re-soluteness, man is in the literal sense
“de-cided” with regard to the Being of beings; that is, “de-cission” means to
be without a scission from Being.’41
48. A-letheia harbours the fore-structure of de-cision. Mortals are addressed by
creativity of be-ing itself, are looked upon by cre-active dis-closure of be-ing
126 Law and art: justice, ethics and aesthetics

(the goddess thea). Mortals, as respondents to art, resolutely and in awe, are
bestowed by the look for the uncanny amidst the ordinariness of the being-
ness of beings – the mindful look that creates as it relinquishes the ‘self’ in the
suddenness of awe and for-the-sake-of being steered by be-ing. The gaze in
which mortals, the only creatures that possess the look, who ‘look at . . .’ and
have sight for the uncanny dwell together in the mystery that will have de-
cided. The for-the-sake-of-which they have the grasping look, the origin of
perception, being in the midst of perception, is the gaze of be-ing. That look into
unconcealedness is the divine, the strange amidst the ordinary and the word
(logos) of the primordial legend and song of the divinities in their encounter
with mortals – the mythos.42 Dike-: the divine that looks will not be protected
but for the look of humans which it protects.
49. To be in the polis is to endure the comportment, and thus the strife of being in
the look of be-ing, the origin of thea, and theory, and to endure the path of
a-letheia resisting the lure of the big ‘yeses’ and ‘noes’ of ‘current affairs’43 as
well as awe-less Left’s promises of radical politicisation that is encapsulated by
articulating becoming ‘interests’, ‘values’ and ‘rights’. It is to sustain the
strangeness of the agora as the political space, resisting reducing uncanniness
to mere thinking with and through beings that characterises the so-called
private and public realms.44 Responsibility is the ability to respond in a
manner that preserves, dwells, and thus protects, the essential refusal of
be-ing. The refusal that characterise the polis is to be under-stood as a temporal
clue in which the earlier prophetically shows in the face of anything ordinary,
namely still steering for-the-sake-of-beingness – the sake of [critically] legal,
moral and aesthetic. The polis is the place where the uncanniness of the empti-
ness is the flicker of the already veiled withdrawn – the demonic district of the
uncanny. The essence of creativity, the ab-grounded suddenness of spontane-
ity is to relinquish interpreting self-steering and thereby letting the positing by
be-ing, be.45 ‘The moment’ of action is the moment of being appropriated, or
being en-owned by be-ing.46
50. The unsayable is not the irrational of metaphysics, but that which in the
grounding of the truth of be-ing ‘is first to be decided’.47 Be-ing is nearer than
the opposition of power and powerlessness and all the calculation and repre-
sentation usefulness that all pertain to correctness-to-come that arises from
that. As Heidegger puts it: ‘The power-less can never be disempowered’.48
51. The Goddess Strife eris, the daughter of Night (nyx) belongs to Fate (moira) who
takes away Being – be-ing – and is also called ruinous (oloe) – thus double
concealment as evil (grasped as uncanny) fate.49 The struggle (Kampf) is to stay
in the sway of the ‘ruinous’ look, rather than in the sway of beingness.50
52. How can a decision preserve the unconcealed as the fateful gift of the uncanny
look? Is the preserving unified de-cision of be-ing that gives the veiled which
mortals guard the same as the steering that characterises the decision and
interpretation – the judgement – of the judge that draws from the shifting
boundary of [in]correctness between the legal, ethical, aesthetic? Does not
 Agonic is not yet demonic? 127

the latter preserve the crave for steering correctness in what it excludes and
therefore defers/postpones rather than preserve the uncanny which is the
stake of the de-cision that characterises the work of art?

The demonic de-cision of art[ist]

53. The artist responds in sustaining that which is most question-worthy, the
question of being owned/appropriated by be-ing rather than merely opening
up to the possibility of asking new questions about beingness of beings.
54. ‘It is only with difficulty that we attain this simple essence of the daimonikon,
since we do not experience the essence of aletheia - . For the daimones, the self-
showing ones, the pointing ones, are who they are and are the way they are
only in the essential domain of disclosure and of the self-disclosing of Being
itself. Night and day take their essence from what conceals and discloses
itself and is self-lighting. That which is lighted, however, is not only what is
visible and seeable, but prior to that – as the emerging – it is what surveys
everything that comes into the light and stays in it and lies in it, i.e., every-
thing normal and ordinary, and it is what gazes into everything ordinary,
indeed in such a way that it precisely appears in the ordinary itself and
only in it and out of it.’51
55. A primordial fore-structure of de-cision that characterises art as resolute
sustenance of awe has two complimentary aspects. The first is to be in the
call-response to the always earlier and strange/uncanny conditioning of be-ing –
to techne- which is secured in dike-. The second is a decisive refusal to simply
dwell in errancy – a refusal amidst the appeal of critical ‘thinking-steering’
with and through the organising, storing, installing, producing beings and
their beingness (including ‘critical theory’ that assembles a point of ‘igno-
rance’), in short, any appeal, education or commitment to the ‘adoptions
of everything that fits into the organizing the public life of the masses . . .
a training-in-lived-experience’.52 This second aspect becomes more urgent yet
more difficult in the epoch of critical thinking in which steering by subject,
moral philosophers, judges, lawyers, makes that refusal of the call-response
seem needless thus sinking into tragic entrenched obliviousness – double-oblivi-
ousness, one that does no longer grasp itself as such. To put these aspects
together: never does a de-cision yield ‘potential for beingness’ but rather the
sustaining of the between of the grounding of the truth of be-ing, its audibility
and strange appeal as the uncanny which lurks in the decision, however criti-
cal, that marks the sway of machinational thinking.53 Art is prior to any look
with the view of giving account through theory that ‘gives account of ’ art –
‘aesthetics’ – which also predisposed to organise beings through the ‘work of
art’, the ‘artist’ the ‘recipient of the work’ in short, beings and their beingness.
De-cision cares for the sake of sending and preserving the uncanny – be-ing –
and not for the sake of both critical and reconciliatory ‘practical’ insights that
humanely ‘care’ about and seek a ‘hearing’ as the being of beings. Care
128 Law and art: justice, ethics and aesthetics

unlearns not merely identity but subjectivity for and which is for the sake of
be-ing.54 Concernful hearing of the uncanny amongst the ordinary is not
hearing of something ‘other’ which, however radical, appeals to critical
domain that still persists in, and as, the ordinary.
56. Let us look at the fore-structure of de-cision. ‘What shines is what shows itself
to a looking. What appears to the looking is the sight that solicits man and
addresses him, the look. The looking performed by man in relation to the
appearing look is already a response to the original look, which first elevates
human looking into its essence. Thus as a consequence of the abiding of
ale-theia and only because of it, looking is the primordial way of emergence into
the light and coming into the light, i.e. shining into the unconcealed.’ (my
emphasis).55 It is in this exchange of looks that the whilst of time dis-closes
and, in relation to [in]justice, pays the due, presencing.
57. Traceless trace is the self-concealing of a trace. Traceless trace connotes
that which never means absence or presence but a temporal movement/
motion of presencing. In her decision the artist has to bear the tracelessness
bringing it, as holding sway inexpressible traceless trace, into the work of art
(waiting) – dwelling earlier than meaning. The work of art temporally moves
preserving the originary refusal that provoked it and making it continuing
provoking, preserving the provocation of the refusal.56
58. Preserving the inexpressible is otherwise than any horizon of possibility and impossibility.
Possibility and impossibility are punctuations of human steering, not
yet dwelling in de-cision. The presencing of refusal remains de-cisively in
the nameless. Namelessness is not simply a ground-as-an-absence-of-a-ground
which is still correctness-bound, an [im]possibility, but rather the abyssal ear-
lier that is born in the work as concealed opening of the work. The mystery of
the nearest can never signify any ‘perhaps’ or contingency but rather calls
resolutely and as such its rising is anticipated understandingly by the seeker
who listens to that which is concealedly dis-closed, listening to the murmur of
the concealedness of the sheltered. The ownness (something that is not ‘I’ but
innermost ‘mine’) of the listener can grasp the veiled openness of ‘suchness’
understandingly not as consciousness (also not yet as un-consciousness). To
grasp is to understand the ab-ground of the temporal worlding that always
precedes, always have already de-cided the opening call.
59. There is, then, a grasping of the call of the futurally earlier and grasping is
not-yet a response. Grasping judgement, the moment of lighting and clearing,
the happening that may or may not follow reflection but which is the most
contemplative of all moments – seeing and hearing the decisive murmur – to
have the insight, to be in the sight, standing in the earlier – belongs to the very
refusal of the temporal movement of beginning and in this sense, it is the
prophetic. It is that characteristic which enables a decider to belong under-
standingly to an earlier decision rather than decide in a way which follows
from the ‘I’-based understanding, determination and reflection. Grasping is
not belated, but its suchness grasped as ‘such’ of t[here] but not yet as an
 Agonic is not yet demonic? 129

object of an idea, not yet as [im]possibility, not yet as a ‘perhaps’. Grasping

involved the hearing of the call, the seeker being in the midst of the double
concealment of the nearest and in sustaining the strangeness, and thus
resistance, to any assimilation by the pressure to form mere unfolding of
[im]possibilities of [in]correctness. De-cision is never mere acknowledgement
of a constant becoming, always being grounded by the mysterious de-cision
by be-coming, the will-have-beenness of be-ing. Being hermeneutic in the
becoming involves such grasp – engaging with the call.
60. A response is always belated, that is next-to-nearest.57 A response is like awak-
ening from the dream of grasping, a dream because in awakening the nearest
seems infinitely far. And yet, responding resolutely to beginning does preserve
the inexpressible of the traceless trace as inexpressible and can not be talked
about in a manner of exclusion or distortion. That is crucial. A de-cision-
response is never expressing some-thing, nor is it a court room of undecid-
ability, even metaphorically, but a look, a gesture, that brings the inexpressible
into the work of art, lingering humbly (letting) in the opening, preserving
beneath the words the whilst of the withdrawal, the tracelessness of the trace
of the call as a call for seekers. It can not be juridified in the manner that
exclusion and postponement as this will already be correctness-bound. It is a
response that has object-less suchness that haunts the work of art as its thing-
ness. Creativity occurs as being-steered by the traceless trace of the de-cision
by be-ing and thus has the humbleness of preserving the belatedness, that
distance, the uninterpretable traceless trace of grasping that of true
decisive clearing of be-ing.58 The nothing of de-cision is the continuous and
any radical punctuating exteriority is not yet in the unbounded no-outside of
the temporal continuous.
61. Creativity, like the one involved in legal decision/exclusion and undecid-
ability/inclusion, which is not marked by the preservation of belatedness and
resignation and which does not bring the belatednesss, as inexpressible, into the
saying of the work of art, becomes just a craft – mere making. The call for the
judge, is the call of the undecidable-on-the-towardness-of-decision and not
of the uncanny. The sensibility of the critical judge is deconstructive, is [in]
correctness-bound that assimilates a potent call of the uncanny into the for-the-
sake-of-which of its own becoming. The postponement of which craft-making
is the harbinger of is still craft-making and for the sake of mere crafting.
‘Creative craft-making’ is the notion in which material is used up to make
something and which therefore disappears into usefulness and correctness.59
Crafting, truth as correctness still reigns; does not yet make the leap into the
open and preserving the open’s inexpressibility in its saying.
62. As a fore-structure de-cision by both be-ing (as art) and artist (as enowned by
be-ing being oppressed by the mystery) creates the stillness that frees being
from beingness, that is from the ‘before’ and ‘after’ historiography, and from
correctness that such historiography entrenches, thus enabling the continu-
ous moving-opening which hovers in temporal presencing that preserves the
130 Law and art: justice, ethics and aesthetics

dis-closured uncanny. The freezing of time by the de-cision of the artist that
responds to be-ing’s de-cision – to art – begins the continuity of the very
movement of withdrawal of the mystery in which all mortals are dwelling
together in a way which opens beneath the Empire of critical and the ‘possi-
ble’ – political, legal, moral and aesthetic ‘usefulness’. The ethical imperative
of the law that artist obeys (although may reflect on it otherwise later) is that
anything useful is already distanced from the movement of the valuable.
63. Critical legal, moral thinking does not sustain the uncanny that emerge as the
strife between truth correctness and as dis-closure. To radicalise the short-
coming of correctness through decisions and undecidability is to bring about
empire of the ontic which is fated to violence that stems from the poverty of its own critical
comportment. To be oblivious to the oblivion – double obliviousness – does not
yet involve that refusal of being in the de-cision.
64. Two simultaneous sayings pertain to the fore-structure of de-cision: a call
which is doubly self concealing yet grasped as de-cided saying, and a belated
responding de-cision-saying by the artist that refuses correctness-based possi-
bilities for decision and which preserves the uninterpretable traceless trace of
the earlier de-cision.
65. As the movement of this fore-structure none is turning into a critical said
which excludes and postpones an inexhaustible saying of ‘[de]-correctness
to come’. The work of art retains and makes explicit the obliviousness of
the fall though it never does it ‘critically’ but with grace. The traceless trace
that is bequeathed by be-ing is given over through the work of art to the
seeker whose mystery will have merged into that of the work.60 The result of
de-cision: the decision is thinking-saying which is ‘non-saying’.61 The strife
and the struggle that the work of art begins and preserves unconcealedness as
it preserves the oppression by the mystery and as such echoes the originary
meaning of polemos, rather than the polemics that involves in the debunking
and inflection of correctness.62
66. Any thinker is begun by beginning and fall away from it, into the ‘I’ but the
artist cre-ates the polis, reminding of the obviation through the disturbing
uncanniness which can not be disempowered, which even a ‘perhaps’ of
[im]possibility, of punctuated singularity can not silence.63
67. Happening grounded in Beeness upsets singularity. Being contra becoming is
not get the unity of be-ing that always already be-comes. As bringing-forth,
violent knowledge the work of art preserves the dis-closed and brings the
obliviation as such nearer to thinking, preserving the originary call to which
the work responded – the call from the unbounded ocean from which the
work rises as a wave. In a sense the artist belongs to ‘history’ to ‘styles’, to
structures of powers and exploitation, to the times, genre, but precisely
because of that the artists also becomes inconsequential to the temporal open-
ing of the work. The work belongs to a more primordial temporality of which
the artist first and foremost responds and in whose abyss she remains hanging
by disappearing. In a primordial sense, temporality and violence of beginning
 Agonic is not yet demonic? 131

do not belong to any ‘self ’ who, because of that, points at it and maintains its
reliability.64
68. Undecidability, the immanent deconstructive supplement or surplus, the criti-
cal process of the legal, of decision and undecidability, inclusion and exclusion,
although seems to provide for a radicality that goes beyond the ‘human’, suf-
focate the mystery for the sake of radical juridical human steering, crafting
and making and thus can evoke the [im]possible beginning for any institution
and procedure that characterises the insurgency and recontainment of [in]
correctess-to-come. The exclusion of the judge does not merely pertain to the
dynamics of [in]correctness-to-come but originates in a be-coming that inter-
pretative participation in, and the complimentarity between, the legal, moral
and aesthetic, can not yet think.
69. The law that precedes the artist (and in a sense the judge as mortal) is not the
legal which precedes the judge as an immanent undecidable. The judge, unlike
the artist already traverses the notion of truth that it pertains to the legal. The
becoming other of undecidability reduces the de-cision for-the-sake-of ‘possi-
bility’ – the praxis and phronesis of the critically legal and the human steering that
moves it. The question of how is the uncanny, art, made audible to that unde-
cidability which is immanent in the legal and entrenched by the critically legal
remains an opening for the philosophy of law – the ‘situation‘ to encounter.
70. The de-cider as artist as well as the de-ciding essence of every de-cider-mortal
are the demonic lovers of be-ing, never agonic, a notion that is still echoing of
harbouring contest and in turn [in]correctness; thus the demonic, unlike agonic
reflection never arises out of genealogical awareness – awareness that moves the
grasping of overcoming of metaphysics as pure becoming. Tragically, the
defiant hesitation of the agonic revolutionary as well as the Schmittian deci-
sive sovereign who decides and punctuates the possibility of the exception, are
both complimentarity of ‘not’ that is still correctness based. That which opens
new possibilities for legal, moral, ethical language through engaging with a
work of art is not yet the demonic refusal of phronesis guarded by the artists’
obedience to art through the art work which constitutes the origin of suffering
of being oppressed by the inexpressible and its endurance.
71. Beeness of de-cision is earlier than the ontic economy/complimentarity
between the ‘not’ s of a sovereign command – the exclusionary cutting off
hesitation in law as the beginning of law, on the one hand, and critical thinking
which are based on juridifiable agonic human steering powers of a hesitant
remainder, also the beginning of law, on the other hand. Mortals are protected
from this complimentarity between decision and undecidability – from the
derivative ‘between’ exception as the beginning of legal possibility and its
complimentarity with hesitation as such possibility – by the refusal of demonic
essence of law (dike-), through art (techne-).
72. The agora of the polis as art be-ings as the very unfolding of dis-closure because
always already resides as the strange that sustains untruth-proper in the face
of the error of deferral of correctness. Mortals are political dwellers, earlier
132 Law and art: justice, ethics and aesthetics

than any [im]possibility as political ‘animals’, because, being de-cisively in the

look of be-ing, anxiously guarding it in awe, they can not but help sustaining
the uncanny opening in the face of the ‘necessity’ of anything critically ‘polit-
ical’ into which they fall for the most part. The critical ‘yes’ that comports the
‘political’ in various epochs in history, its maturity in modernity and post-
modernity, heralds more and more intensively the tragedy of mortals’ pre-
dicament, tragedy that itself prophesies the violent response to the originary
resolute call of technē – art. A response to our conundrum, then,: the artists’s
refusing de-cision – the ‘not’ to interpretation, and, even further, the ‘not’ to
undecidability that also in its sense refuses interpretation, does decisively
measure the traceless trace of the uncanny call to any actual and potential/
[im]possible commerce with beings and their beingness withing the legal – a
call that both opens up as world but which is simultaneously grounded and
sheltered as the demonic de-cision of earth – a rooted way to language’s
de-cision. Polis dwellers in the temporality of the violent knowledge of
art – the artist as well as mortals who fatefully encounter the unbounded
and un-diminshable power of the dis-closed ‘t[here] of the work – are all
called upon to think as custodians of the uncanny nearest, to de-cisively
endure it.65
73. Dignity of mortals being ethical towards the look of be-ing, is demonic and
belongs to the law which art obeys in its call and the artist’s response.

Notes
1 J. Derrida, ‘Force of Law: The Mystical Foundation of Authority’, in Deconstruction and the
Possibility of Justice, D. Cornell, M. Rosenfeld, D.G. Carlson (eds), New York and London:
Routledge, 1992, pp. 3–67.
2 J. Derrida, Of Hospitality: Anne Dufourmantelle invites Jacques Derrida to Respond, Stanford:
Stanford University Press, 2000 and J. de Ville, ‘Rethinking the Notion of a ‘‘Higher
Law’’: Heidegger and Derrida on the Anaximander Fragment’, Law and Critique (2009)
pp. 59–78.
3 M. Heidegger, ‘The Origin of The Work of Art’ [1935–6], in Poetry Language, Thought,
Albert Hofstadter (ed. and trans.), New York: Perennial (HarperCollins), 1971,
pp. 17–79; Mindfulness [1938–9], P. Emad and T. Kalary (trans.), New York and London:
Continuum Press, 2006; Parmenides [1942–3], A. Schuwer and R. Rojcewicz (trans.),
Bloomington and Indianapolis: Indiana University Press, 1992.
4 M. Heidegger, ‘A Dialogue on Language’, [1953–4], in M. Heidegger, On the Way
to Language, P. D. Hertz trans., San Francisco: Harper and Row, 1971, pp. 1–54, at
p. 29.
5 Parm., p. 120.
6 M. Heidegger, ‘The Scope and Context of Plato’s Meditation on the Relationship of Art
and Truth’, in Nietzsche (Vol. 1: The Will to Power as Art), D. F. Krell (ed. and trans.),
HarperCollins, 1991, pp.162–70, esp. p. 164. See also, OWA, pp. 57–8.
7 For the discussion of the strife between dike- and techne-, see M. Heidegger, An Introduction
to Metaphysics, [1935], R. Manheim (trans.), New Haven/London: Yale University Press,
1961, discussed in my Thinking about Law: In Silence with Heidegger, Oxford: Hart Publishing,
2007, ch. 4.
8 Parm., pp. 118–21.
 Agonic is not yet demonic? 133

9 Ibid., pp. 101, 103.

10 Ibid., p. 105.
11 Ibid., pp. 92–3, 95–6. The polis is not a metaphysically, ontically-conditioned public/
private realm, see ‘Letter on Humanism’, op cit., p. 221.
12 Ibid., p. 11.
13 Ibid., p. 44.
14 Ibid., p. 22.
15 M. Heidegger, ‘On the Essence of Truth’ [1930], in ‘Basic Writings – Martin Heidegger’,
J. Sallis (trans.), D.F. Krell (ed.), London: Routledge, 1993, pp. 115–38, at pp. 130–2.
16 Parm., pp. 30–2.
17 OWA, pp. 52–9, see also Parm., p. 24.
18 Parm., pp. 131–2.
19 Ibid., p. 133.
20 In ‘Letter on Humanism’, in Basic Writings, op cit., pp. 217–65, at p. 262: ‘Nomos is not
only law but more originally the assignment contained in the dispensation of Being.’
21 M., p. 118. See also ibid., p. 81.
22 See M. Heidegger, ‘What is Metaphysics?’ [1929], in ‘Basic Writings: Martin Heidegger’,
D. F. Krell (ed. and trans.), London: Routledge, 1993, pp. 93–110.
23 See, ‘On the Essence of Truth’, op cit., at pp. 132–5.
24 Parm., p. 71. For elucidating the essence of mortals as ek-sistent homecoming, see
M. Heidegger, ‘Letter on Humanism’, op cit., pp. 242–3.
25 Ibid., p. 72.
26 M. Heidegger, ‘What is Metaphysics?’, op cit. pp. 99–102.
27 Parm., p. 117.
28 Ibid., p. 75.
29 M., p. 52.
30 OWA, p. 51.
31 Parm., p. 75.
32 M., p. 38. See also, M. Heidegger, ‘Letter on Humanism’, op cit., pp. 244–5, 252.
33 See, O. Ben-Dor, Thinking about Law: In Silence with Heidegger, op cit., chs. 8 and 9.
34 On resoluteness, see M. Heidegger, Being and Time [1927], J. Macquarrie, E. Robinson
(trans.), Oxford: Blackwell, 1962, pp. 343–8. See also M. Heidegger, Logic as the Question
Concerning the Essence of Language, [student annotated lectures, 1934], W. T. Gregory and
Y. Unna (trans.), Albany: State University of New York Press, 2009, pp. 61–6.
35 Parm., p. 119.
36 Ibid., p. 75.
37 OWA, p. 77.
38 M., p. 71.
39 Parm., pp. 80–4. See also, M. Heidegger, ‘Letter on Humanism’, op cit., pp. 218, 263.
40 M., p. 38.
41 Parm., p. 75.
42 Ibid., pp. 87, 104–8.
43 Ibid., pp. 124–5.
44 M. Heidegger, Letter on Humanism, op cit., pp. 221–2.
45 M., p. 147.
46 Ibid., pp. 94–6.
47 Ibid., p. 86.
48 Ibid., pp. 80–81, 168–70.
49 Parm., pp. 72–3.
50 Ibid., pp. 18–19.
51 Ibid., p. 102.
52 M., pp. 24–7.
53 Ibid., pp. 33, 95.
134 Law and art: justice, ethics and aesthetics

54 Ibid., pp. 28–9.

55 Parm., p. 107.
56 OWA, p. 47.
57 See M. Heidegger, ‘The Thing’ [1950], in Poetry, Language, Thought, A. Hofstadter
(trans. and ed.), New York: Perennial (HarperCollins), 1975 and 2001, pp. 163–80, at
p. 175; see also ‘Homecoming/To Kindered Ones’, in Elucidations of Hölderlin's Poetry,
K. Hoeller (trans.), New York: Humanity Books, 2000, pp. 24–49, at pp. 39–46.
58 OWA, pp. 56–8, 62–5, 69.
59 Ibid., p. 44, see also p. 57. See also, M. Heidegger, ‘Letter on Humanism’, op cit., pp. 262–5
to inexpressibility as the housing of language.
60 Ibid., p. 39.
61 M., p. 81.
62 Parm., pp. 17–19.
63 Ibid., p. 8.
64 OWA, p. 63 and pp. 33–4 for reliability.
65 See OWA, pp. 32, 38–48, 70–3, and O. Ben-Dor, Thiking about Law, op cit., ch. 9.
Chapter 7

Nella Larsen’s feminist

aesthetics
On curse, law, and laughter
Ewa Plonowska Ziarek

In this chapter I explore the relationship between law and feminist aesthetics by
focusing on Nella Larsen’s celebrated 1928 novel Passing. The choice of this text is
not accidental. Recovered in the 1980s as a major text of the Harlem Renaissance,
modernism, and ‘feminist literary canons’1 thanks to the labour of the numerous
black feminist theorists and interpreters, Passing has been praised for its explor-
ation of racial, class, sexual and linguistic dangers and ambiguities.2 The novel
centres on the relationship between two black female characters: Irene, the unreli-
able narrator, who is a self-proclaimed race woman, but who occasionally passes
for white ‘for the sake of convenience’, and her orphaned childhood friend, Clare,
who, without kinship ties to the black community, passes for white. Their acciden-
tal encounter as adult married women in the Drake Hotel in Chicago leads to an
unpredictable, and eventually tragic, circulation of non-normative female desire
and letters. The narrative abruptly terminates with the death of Clare, the novel’s
most enigmatic subject of eroticism, beauty, and letters, at the very moment when
she voices her desire to return to Harlem.
Despite the novel’s prominence in literary circles, Larsen has not yet entered
the canon of philosophical aesthetics, which predictably tends to reproduce mostly
male and mostly white writers as its exemplary figures. And yet, beginning with
the arrival of the seductive but enigmatic, almost unreadable scrawl of Clare’s
letter, the structure of Larsen’s novel interrogates the crucial philosophical ques-
tion of art’s relationship to racial and gender politics, or ‘art and propaganda’, as
it was phrased in the mid and late 1920s by the Harlem Renaissance’s most import-
ant critics and artists. As Thadious Davis argues, Larsen took the art side of this
battle and announced that choice publicly in her reviews, interviews, and letters.3
The choice of art over propaganda does not mean, however, that Larsen relin-
quishes the task of exploring art’s vexed relation to law, female desire, and racial/
sexual violence; rather, it means that such exploration exceeds the available means
of language and thus cannot propagate explicit political or philosophical ends. By
taking us to the limits of the sayable, Larsen interrogates the legitimation of racist
patriarchal laws and language through a misappropriation of the Biblical curse of
Ham. What experimental black female modernism opposes is the originary, vio-
lent division between malediction and benediction, the inclusion in and exclusion
136 Law and art: justice, ethics and aesthetics

from the polis enacted and reinforced through the repetition of the curse. This
interplay between the curse, law, and laughter transforms not only the discursive
operation of language but also its performative violence in order to reclaim
the foreclosed possibilities of inauguration—the conditions of black female
Renaissance as such. Such an aesthetic transformation of the entire register of
racialized and gendered language not only contests racist laws, but also enables
the emergence of female desire and a utopian black community in the midst of the
disaster of racist violence.
How can the destruction of racist violence be transformed into conditions of
inauguration, that is, into the very possibility of black and female Renaissance?
What kind of risks does this task of aesthetics involve? What kind of monumental
transformation of language and law, not only in their capacity of signification but
also their performative force, does it entail? To respond to these questions, we
need to follow Larsen’s response to the traces of two barely inscribed scenes, which
nonetheless set the narrative of Passing in motion: the first one transmits the muted
echoes of the trauma of slavery, the continuing brutality of racist violence and
segregation; the second one—the legacy of the black struggle for freedom. Indeed,
in order to see how the potentiality of freedom—the tour de force of Passing—can
emerge from the experimental rather than propaganda side of black aesthetics, we
need to reread the trajectory of black female writing as a response to the catastro-
phe of slavery, the legitimation of which is signified in the novel though the Biblical
curse of Noah.
As Hortense Spillers, Saidiya Hartman, and Alexander Weheliye in different
ways argue, the trauma and devastation of slavery are not only historical phenom-
ena, but also the continuous unfolding of the suffering and dispossession that
‘engenders the black subject in the Americas’4 and constitutes the matrix of
Western political modernity. In Larsen’s novels, the more muted these echoes are,
the more destructive their effects. More explicit in Larsen’s first novel, Quicksand,
references to the violence of racist and patriarchal law function more like a pal-
impsest—a hidden subtext—which disarticulates the narrative structure of Passing.
Consider for instance the bitter condemnation of America for the horrors of anti-
black violence in Quicksand by the main protagonist, Helga:

To America, where Negroes were not people [. . .] Never could she recall the
shames and often the absolute horrors of the black man’s existence in America
without [. . .] a sensation of disturbing nausea. It was too awful. The sense of
dread of it was almost a tangible thing in her throat.5

These passionate expressions of outrage about the brutality of anti-black

racism, legitimated or at least tolerated by legalized discrimination, foregrounds
several splits that are crucial for the interpretation of Passing. The most poignant
one is the disjunction between the ‘promise’ of ‘New World’ and ‘the absolute
horrors’ of black existence; between opportunity and bodily dismemberment;
between the affirmation of a new beginning and the destruction of all possibilities.
 Nella Larsen’s feminist aesthetics: on curse, law, and laughter 137

These disjunctions create an unbridgeable rift in language itself between expres-

sive possibilities and nauseating paralysis; between voice and a dying tongue;
between the letter and the alien suffocating thing. Repressed fears of lynching and
racial trauma reappear in a displaced and distorted form as ‘a primitive paralyz-
ing dread’ about marital infidelity: ‘Her hands were numb, her feet like ice, her
heart like a stone weight. Even her tongue was like a heavy dying thing.’6 Echoing
Helga’s dread of the terror of anti-black violence, Irene’s frozen body is a symp-
tom of the repressed, unimaginable, and unspeakable horror of black bodies
lynched, castrated, and dismembered by white mobs, a horror that exceeds any
anxiety about her husband’s affair. In particular, the figure of the tongue ‘like a
heavy dying thing’ in Irene’s mouth evokes Helga’s dread of lynching like ‘a tan-
gible thing in her throat’7 and inscribes its horror within language itself. By col-
lapsing the distinction between the signifier and suffocation, between the symbolic
realm, which includes politics, and what psychoanalysis calls the realm of the real,
horror turns the speaking tongue into a paralyzing, nauseating ‘thing’, which, in
its suffocating materiality, bears the traces of a tortured and sexually violated
body. The depth of this painful inexpressibility is unavailable to the language of
propaganda.
In Passing the notion of America as a ‘hellish place’ where white mobs lynch
black bodies with impunity, as the ‘absolute’ horror of racist violence, is signified
through the figure of Noah’s curse of enslavement. By choosing this particular
signifier of the justification of slavery, Larsen not only recalls the long barbaric
history of religious/juridical legitimations of the enslavement of Africans and
African-Americans, but also examines the intimate relationship between discrimin-
atory law and racist violence. This struggle with the performative violence and
degradation inflicted by Noah’s curse reveals a political function of experimental
black female aesthetics: in Larsen’s novel, the aesthetic attempts to counter and
transform the linguistic force of devastation and paralyzing impossibility into new
modes of artistic inauguration. It is one of the reasons why the narrative structure
of Passing is organized around the recurrence of the curse and different modalities
of struggle against its destructive effects: from open defiance to mockery, from
laughter to writing, which, like the hardly legible handwriting of Clare’s letters,
transforms the curse into a feminine, enigmatic ‘cursive’ scrawl. The traversal and
transformation of the originary division between curse and promise is the crucial
aspect of the counter-movement of Passing, motivated by the desire to negate the
persisting effects of death, alienation, and racist violence in the public and private
sphere. Thus from the opposition between propaganda and the enigmatic, experi-
mental script of black aesthetics we move to a far more dangerous disjunction
between oppositional art and transmission of the curse—a disjunction which
numerous acts of literary tres/passing attempt to bridge, mediate, and eventually
transform into new possibilities of expression and signification.
According to Houston Baker, Jr., the task of the transformation of the cursed
language is shared by most black writers of the Harlem Renaissance. Baker dis-
cusses the relevance of the curse in terms of multiple tensions between the mastery
138 Law and art: justice, ethics and aesthetics

of form and the deformation of mastery associated with the trope of the curse.
In a masterful rereading of Shakespeare’s The Tempest, Baker views Caliban’s curse
as always already a meta-curse, deforming the nonsense of white mastery and
speaking of the dispossession of indigenous speech. Caliban both feels cursed by
the language of the invaders and reappropriates this cursed written tongue in
order to condemn usurpation and dispossession and to create new insurgent pos-
sibilities of expression within the speech of the oppressors. His meta-curse trans-
forms, therefore, the impasse of the cursed foreign language into ‘the motivating
challenge of writing’.8 African-American writers, according to Baker, share the task
of Caliban since they ‘must transform an obscene situation, a cursed and tripled
metastatus, into a signal self/cultural expression’.9
Although Larsen also reappropriates the cursed language of white mastery, her
paradigmatic case of the curse is not The Tempest but the Biblical curse of the
enslavement pronounced by Noah in Genesis 9. Evoked in the novel as the origin
of slavery and patriarchal domination, the curse of Noah, also called the curse
of Ham, refers to the long history of racist misappropriations of the Biblical text.
The paternal curse makes its first appearance in the first chapter of Passing imme-
diately after the arrival of the enigmatic letter from the novel’s main mulatto
protagonist, Clare. From the outset, then, the trajectory of the letter and the trans-
mission of the curse are juxtaposed as two violently antithetical forces, creating
dissonance in the narrative structure of the novel and the rifts in the language
itself between letter, voice, and the dead tongue. The first instantiation of the
paternal curse comes from Clare’s own mulatto drunken father but, despite its
violence, it is ineffective. The paternal curse assumes mythical, Biblical propor-
tions and becomes explicitly associated with the Biblical story of Noah (Genesis 9)
only when it is pronounced by Clare’s white relatives, the sisters of her white
grandfather. To legitimate the racist abuse of their niece, the aunts claimed that
‘the good God [. . .] intended the sons and daughters of Ham to sweat because he
had poked fun at old man Noah once when he had taken a drop too much.
I remember the aunts telling me that that old drunkard had cursed Ham and his
sons for all time.’10 What Clare’s white relatives are explicitly referring to is the
biblical text of Genesis 9, used to provide religious justification for the American
white supremacy:

When Noah awoke from his stupor he learned what his youngest son had
done to him, and said:/Accursed be Canaan,/he shall be/his brothers’ mean-
est slave./He added:/Blessed be Yahweh, God of Shem,/let Canaan be his s
lave! (Genesis 9:24–27).

In her ironic retelling of the racist reappropriation of Biblical text, Clare mocks
Noah as the drunken ‘old man’ who violates the divine promise of peace and
life and introduces instead the curse of eternal slavery into the world. In so doing,
she also ‘pokes fun’ at the mythical curse of the white father, while at the same
time bearing the brunt of the curse. The Biblical curse is also internalized by
 Nella Larsen’s feminist aesthetics: on curse, law, and laughter 139

Irene, who, at the moment of psychological crisis in the ‘Finale’ of Passing acknow-
ledges for the first time the brutality of racism: ‘It was a brutality, and undeserved.
Surely, no other people so cursed as Ham’s dark children.’11
Let us dwell on this figure of Ham’s cursed ‘dark children’, which frames the
narrative structure of Passing. The relation between the Biblical story of Noah’s
curse and the justification of slavery is well known to both biblical scholars and
historians of slavery; it is surprising, therefore, that it has not played a significant
role in the numerous interpretations of Larsen’s text. As David Davis, one of the
leading historians of slavery in the Western world, argues in Inhuman Bondage, the
story of Noah’s curse in Genesis 9 is ‘absolutely central in the history of antiblack
racism. No other passage in the Bible has had such a disastrous influence through
human history as Genesis 9:18–27.’12 Similarly, the Biblical scholar, David
Goldenberg, writes that the story of Genesis ‘has been the single greatest justifica-
tion for Black slavery for more than a thousand years’.13 The racist interpretation
of Genesis 9 stresses the dual aspect of the curse, which supposedly ‘generated
both slavery and blackness’14 despite the absence of any references to the colour of
skin or race of the cursed son in the Bible. Interpreted as a bodily effect of the
curse, blackness becomes, therefore, the mark of degradation and punishment.
Focusing primarily on the American legacy of Noah’s curse, Stephen Haynes
demonstrates that in America by 1670, the curse of Ham was widely used as the
legitimation of black enslavement. In response to the abolition movement, ‘the
scriptural defense of slavery had evolved’ by 1830 into the ‘most elaborate and
systematic statement’ of proslavery theory.15
How should we understand the performative force of the curse, which is evoked
in Larsen’s novel both as the legitimation of enslavement, racism, segregation, and
as a linguistic re-enactment of racist violence that afflicts language itself and turns
it into a suffocating thing? The curse fuses into the same utterance the linguistic act
of violence and the religious/juridical justification of that violence. Signifying,
according to the OED, male-diction, abomination, excommunication, the ritualized
expulsion to malignant fate, or symbolic death, the performative violence of ‘curse’
is the opposite of ‘blessing’, or bene-diction, and, as we have seen, of the promise of
the New World. As the opposite of bene-diction, the curse and its correlatives—
excommunication and banishment—can be read as the exemplary performative
act of male-diction. Prior to any signification or the performative possibility of lan-
guage, the curse enacts a radical expulsion which instantiates the borders of com-
munal life, speech (bene-diction), and being-in-common. Consequently, through
violent exclusion, this ‘archaic’ act demarcates the limits of politics, law, and speech.
Rather than operating within the established political field of propaganda, the task
of black feminine art in Larsen’s text is to trespass not only the colour line, but also
the very borders of the political maintained by the male/benediction divide.
The use of Noah’s curse as the Biblical justification and legitimation of the
slave law points to what Giorgio Agamben calls an ‘archaic link’ between law and
religion and magic. Normally it is the law that guarantees the efficacy of the per-
formative power of language, but, as Agamben points out, law itself grounds its
140 Law and art: justice, ethics and aesthetics

efficacy in a ‘prejuridical sphere in which magic, religion, and law are absolutely
indiscernible from one another’.16 For Agamben the paradigmatic expression of
this archaic link is the act of oath.17 As exemplary benediction, oath creates con-
tractual bonds and obligations. If exemplary benediction belongs to the most
archaic areas of pre-law, then, as our analysis of Genesis 9 shows, its opposite is
curse, nihilating all communal links. Since curse also bears witness to the archaic
intertwining of law, language, and religion, its exorbitant, destructive force both
legitimates and exceeds the constituted law. Thus, although the curse of Ham had
been used to legitimate slave law, the enactment of exorbitant violence precedes
and exceeds the force of law as such.
What supports the interpretation of the Biblical curse of enslavement as the
originary human act of violent exclusion is the fact that it occurs at the dawn of
human history just after God promises never again to curse the Earth with the pun-
ishment of flood or extinction (Genesis 8: 21) and before the genealogical account
of the ‘Table of Nations’ in Genesis 10. By marking the liminal border between
God’s blessing and the human genealogy of nations, Noah’s curse functions, there-
fore, as a caesura between divine and human authority, between promise and
anathema, inclusion and expulsion. The performative violence of the curse—its
force of exclusion, degradation, and death—is thus the opposite of the performative
effect of the promise, which establishes the Covenant, law, and the claims of geneal-
ogy. Noah’s blessing and cursing of his sons institutes within language itself the
caesura between bene-diction and male-diction. Demarcating the outside of human
and divine law, the curse creates a threshold between the human and the inhuman,
blessing and abomination, life and death, cosmos and chaos.
As the fusion of violence and the signifier, the opposition between Noah’s curse
and benediction institutes the borders of collective life and speech and instantiates
deracination, illegitimacy, and expulsion from the realm of symbolization, from
the polis and kinship. In so doing, it resonates with Orlando Patterson’s seminal
analysis of slavery in terms of social death.18 Transposing Patterson’s discussion to
the domain of discourse, we can say that the curse is the performative re-enactment
of violent expulsion from the legal status of the subject, genealogy, cultural
memory, social distinction, and the bene-diction of language. Since Noah’s curse
performs and transmits ‘social death’ through generations, it also destroys the
principle of natality.19 As Hannah Arendt suggests, natality, understood in the
broadest terms, signifies not only biological birth, but also the claims of genealogy
and the principle of a new beginning in political and cultural life.20 As the destruc-
tion of genealogy history, and the future, the loss of natality marks the cursed
person not only as socially dead but also, to recall Patterson’s analysis of natal
alienation, as an unborn being.21 The destruction of natality has of course a spe-
cial resonance in the context of the Harlem Renaissance—it undercuts the very
possibility of inauguration, or what Baker calls the conditions of Renaissance-ism
for African-American art.
The liminality of Noah’s curse resonates with Orlando Patterson’s discussion
of the slave’s marginal position. Although it is the effect of a violent exclusion,
 Nella Larsen’s feminist aesthetics: on curse, law, and laughter 141

liminality, according to Patterson, nonetheless points implicitly to the transgres-

sive possibility of ‘passing’, or crossing, the deadly border between human order
and inhuman chaos. Because the enslaved being ‘was marginal, neither human
nor inhuman, neither man nor beast, neither dead nor alive’, she could traverse
‘the deadly margin that separated the social order above from the terror and chaos
of the underground’.22 It was one of the contradictions of slavery that the most
powerless position enabled the most dangerous mediation between the human,
inhuman, and the divine.23 By expanding Patterson’s analysis, we could say that
the female act of traversing the border of social order and legibility destabilizes
that order from within and from ‘without’. Since such crossing of limits cannot be
controlled, the act of passing turns into a transgressive trespassing. The possibility
of trespass is also inscribed in the Biblical story, but it is limited to the opaque
sexual transgression of the son, who, by witnessing his drunken father’s exposed
genitals, puts paternal mastery in question. The son’s transgression is what
precedes the male/bene-diction divide, whereas the reactive reinstatement of
paternal, sovereign authority is based on that divide.
Associating these dangerous possibilities of trespassing with daughters’ rather
than sons’ sexuality, Larsen aims to transform the force of exclusion enacted
through Noah’s curse into the inaugural possibility of new signification, commu-
nity, and desire. This transformation is the main task of black female aesthetics—
by inscribing gender as well as the ‘race problem’ within the Biblical curse, Larsen
assigns this dangerous task to the ‘daughter of Ham’. Needless to say, the contest-
ation of the destructive legacy of social death by those who have been marginal-
ized or excluded from the world of promise and opportunity cannot be confined
to the ‘passing plot’, in which the main protagonist (Clare) crosses the colour and
gender line in order to mimic and appropriate the economic advantages of white,
heterosexual, middle class femininity. As long as it is limited to the racial and even
sexual passing plot, the role of passing remains ambiguous: it simultaneously
transgresses and preserves class, heterosexuality, and white supremacy as well as
their juridical justification. Yet, the transgressive function of black female aesthet-
ics is not limited to the narrative structure alone; it also traverses linguistic liminal-
ity, which suspends and dissolves the borders of the racist, patriarchal order from
without and from within. Motivated by the desire to negate the persisting effects
of social death and racist violence, the transformation of cursed language is enacted
in Passing by the ‘illegible scrawl’ of female letters and by insurgent laughter. Such
a linguistic traversal of the limits of being and signification not only bears witness
to black suffering and dispossession but also creates the alternative ‘revolutionary’
possibilities of re-naming and re-signification. In so doing, the novel restores the
destroyed conditions of Renaissance, the possibility of a new beginning and
rebirth, as the main character’s (Irene’s) nickname, Rene, signifies.
Such a traversal of the borders of intelligibility separating the inhabitable
world from its excluded outside does not produce a Caliban-like meta-curse, as
Baker suggests, but renders the violent division between the bene/male-diction
inoperative. What then is the dimension of language that is revealed through the
142 Law and art: justice, ethics and aesthetics

suspension of the performative force of benediction and malediction? What the

benediction/curse doublet obscures is, according to Agamben, the primordial
event of language, which exceeds not only the performative power of law but also
the sovereign decision on the state of exception suspending and confirming juridi-
cal status.24 In the context of Agamben’s analysis, we could say that the dialectical
relation between Noah’s curse and blessing both points to and covers over a more
originary dimension of linguistic performativity, namely, a primordial event of
language which precedes any determined signification. By contesting the opposi-
tion between malediction and benediction inoperative, feminist aesthetics
approaches what Agamben calls ‘a pure and common potentiality of saying, open
to a free and gratuitous use of time and the world’.25
In Larsen’s novel, what keeps the event of language open beyond the division
into malediction/benediction is, as I have suggested earlier, the intertwining of the
female enigmatic letter and the mocking laughter which turns the authority of the
unjust law into a joke. Although in the Biblical text the ‘transgression’ of laughter
justifies the curse of servitude and slavery, in Larsen’s text this relation is reversed:
laughter not only undermines mastery but, more importantly, annuls the perfor-
mative power of malediction. Indeed, jokes, mockery, derisive laughter, and irony
are frequent insurgent responses to false authority and racist violence. In Larsen’s
novel, it is Clare, the audacious passer and letter writer, who is most often associ-
ated with both seductive and mocking laughter: ‘Clare laughed for a long time,
little musical trills following one another in sequence after sequence.’26 That is
why she claims admiration for the mocking, defiant writing of Dave Freeland, ‘the
author of [. . .] devastating irony’.27 Clare responds to danger and law with ‘the
mocking daring [. . .] the ringing bells of her laughter’,28 mixed with rebellion,
seduction, and disdain. More enigmatically and more threateningly, Clare seems
to be laughing ‘at some secret joke of her own’, a joke which awaits its public
dissemination in the black community, and in so doing, calls for a utopian
‘Freeland’.29
To approach the insurgent force of Clare’s laughter, I would like to juxtapose
the white fears of rebellious black laughter in the American racist interpretations
of Noah’s curse with Freud’s discussion of jokes’ subversive political and sexual
function. According to Stephen Haynes, mockery and laughter at the father was a
prominent theme in American proslavery interpretations of Genesis 9—Ham’s
derisive laughter was often viewed as a sufficient justification of the curse. What
makes Ham’s transgression intolerable is his contempt for and mocking laughter
at his father’s exposed/emasculated body. Such a transgression is also intolerable
for Irene, who is horrified by the possibility that Clare’s deadly disdain of her
father can re-enact the symbolic murder of her racist husband: ‘she saw again the
vision of Clare Kendry staring disdainfully down at the face of her father, and
thought that it would be like that that she would look at her husband if he lay dead
before her’.30 Haynes argues that mocking laughter occupies such a prominent
position in the interpretation of the Biblical text in the American antebellum
South because it signified white fears of black insurrection.31 In fact, laughter was
 Nella Larsen’s feminist aesthetics: on curse, law, and laughter 143

regarded as the first sign of revolt—it was ‘the obsession with Negro rebellion that
made laughter a compelling theme among proslavery advocates of the curse’.32
As such obsessive fears imply, laughter, rather than being the cause of the curse,
signifies insurrection against the patriarchal white authority.
White fears of black insurgent laughter resonate with Freud’s discussion of the
subversive function of political jokes, which undermine political authority, and the
power of the law. In Freud’s words, the political jokes of subjugated groups repre-
sent a conscious and, more significantly, unconscious ‘rebellion against that
authority, a liberation from its pressure’.33 Although they incite pleasure, political
and hostile jokes stem from the experience of bitterness, which is transformed into
a sense of liberation: ‘By making our enemy small, inferior, despicable or comic,
we achieve in a roundabout way the enjoyment of overcoming him—to which the
third person [. . .] bears witness by his laughter.’34 That is why Freud suggests that
jokes are related to the struggle for liberation: ‘freedom produces jokes and jokes
produce freedom’.35 The circulation of a joke, like a dissimulation of news of a
victory, ‘acts almost like an event of universal interest; it is passed from one person
to another like the news of the latest victory’.36
By making possible an attack on the racist white power, black political jokes
liberate foreclosed linguistic and political possibilities of freedom. This conversion
of impossibility into new possibilities of subversion occurs thanks to the verbal
duplicity and ambiguity in the structure of the joke, which, as Freud points out,
exploits ‘something ridiculous in our enemy which we could not, on account of
obstacles in the way, bring forward openly or consciously’.37 What is particularly
subversive in the case of black laughter is the exposure of the political power of
whiteness and its performative violence as nonsense or stupidity. Evocative of the
duplicity of racial passing, the verbal play, duplicity, and allusion in the structure
of the joke allow those who are oppressed by ruthless authority to ‘avenge the
insult’ by turning ‘it back against the aggressor’.38 Freud illustrates the duplicity
and ambiguity of the language of jokes by referring to the famous verbal play of
‘translator-traitor’.39 In particular, cynical jokes, which attack the ruthless author-
ity of the rich and powerful, are not only most treacherous politically but also most
enigmatic linguistically. Such jokes deploy a linguistic play with nonsense in a
comic façade or a parodic envelope in order to conceal another target of the
joke—the nonsense and injustice of illegitimate ruthless power. Duplicity and the
façade of verbal nonsense allow those who tell and laugh at the jokes to expose
‘another piece of nonsense’:40 in terms of Larsen’s novel, the nonsense of white
racism, and the nonsense of the curse itself. Like a mask within a mask, the novel’s
‘priceless joke’ translates and transforms the biblical curse appropriated to support
racism and heteronormativity into a piece of white nonsense and patriarchal
stupidity. Manifesting itself as laughter, the performative force of nonsense is
precisely what suspends the very division of language into malediction and bene-
diction. By turning the racist language of Noah’s curse against itself, by annulling
its performative force, the priceless joke liberates new possibilities of insurgent
signification.
144 Law and art: justice, ethics and aesthetics

Like the enigma of Clare’s writing and bodily expression, nonsense, liberated
through plural modalities laughter in Passing—irony, mockery, jokes, witticisms,
play—not only negates the performative/ritual violence of racism, not only sus-
pends the malediction/benediction divide signified by Noah’s curse but, through
that suspension, opens alternative social relations within the black community. The
suspension of malediction/benediction initiates a new, insurgent movement
toward a utopian black community and feminine desire: ‘I’d do what I want to do
more than anything else right now. I’d come up here to live. Harlem, I mean.’41
In wanting to be with Irene and live in Harlem, Clare, like Dave Freeland,
‘the author of novels [. . .] [of] a devastating irony’,42 wants to participate in the
‘experimental’ act of founding a utopian black ‘Freeland’ in order to inaugurate
new possibilities of political, artistic, and erotic freedom.
Such alternative modes of being-in-common emerge not only from the struggle
for liberation but also from the pleasure of common wit and talk. The collective
performance of a utopian community of freedom through participation in diver-
gent modalities of laughter, pleasure, and linguistic play takes place in the ‘Finale’
chapter of the novel, during the all-black party. It is an extremely brief moment of
affirmation, inserted ‘in passing’ and bracketed by the presence of disaster: the
bitter discussion of lynching at the beginning of the chapter and Clare’s tragic
death at the end. Yet in between the recurrence of disaster, Larsen includes, for a
brief moment, a utopian scene of shared laughter, talk, and aesthetic pleasure.
The participants gathered at the party experiment with different ways of creating
a community by throwing ‘nonsensical shining things into the pool of talk, which
the others, even Clare, picked up and flung back with fresh adornment’.43 What is
most striking in this figure of the collective ‘pool of talk’ is not only the subversion
of mastery but also the liberation of linguistic and sexual pleasure in the nonsens-
ical play, which brackets for a moment the language of violence, struggle, and
communication and transforms the event of language into the sharing of ‘non-
sensical shining things’. The event of language is a plural event of communal
improvisation, an event irreducible to the juridical relations of the racial patriar-
chal contract based on the exchange of women, black bodies, and commodified
labour.
What each participant adds is not necessarily a new meaning, but a ‘fresh
adornment’ of language. Such fresh adornment performs a crucial re-signification
of the most ambiguous word in the novel—‘things’. The ‘shining thing’ is no
longer a material possession, an alluring commodity or a petrified tongue. In a
brief parenthesis between recurring disaster, language itself becomes a ‘shining
thing’, ‘a vital glowing thing, like a flame of red and gold’,44 a material and collec-
tive free object of enjoyment, desire, and pleasure, freely drawn and returned with
new adornment into the pool of talk. This collective sharing in the event of lan-
guage, figured as ‘a pool of talk’, transforms the petrification of bodies and the
paralysis of language into an indeterminate potentiality of happening.
On the edge of extreme danger, the traversal of language crosses—both in the
sense of passing through and cancelling out—the destructive negativity of the
 Nella Larsen’s feminist aesthetics: on curse, law, and laughter 145

curse in order to transform its archaic violence into the subversive, affirmative
potentiality of writing (Clare’s letters, Dave Freeland’s books) and saying (collec-
tive improvisation and laughter). Participation in such affirmative nonsense and
play, liberated through laughter in a shared ‘pool’ of talk, requires nothing other
than the most minimal utterance of a ‘yes’.45 In a crucial turn of the narrative,
Clare responds with such a repeated ‘yes’ to Irene’s warnings about the dangers of
being ‘unmasked’ as a black passer by her racist husband: ‘ “Yes.” And having said
it, Clare Kendry smiled quickly, a smile that came and went like a flash, leaving
untouched the gravity of her face.’46 What is interesting in this exchange is that the
repeated ‘Yes’ surpasses—and one of the archaic meanings of ‘passing’ is indeed
such an excess—any specific answer that can be given in response to Irene’s ques-
tions. As the terminus the traversal/transformation of the anomaly of social death
and its spectral duration, the sheer semantic indeterminacy of a ‘Yes’ indicates a
dimension of language beyond the oppositional categories of malediction and ben-
ediction, negation and affirmation, potentiality and actuality. As Derrida points
out in a different literary context, ‘yes’ indicates nothing in itself, it refers to noth-
ing outside itself and yet is a pre-performative condition of all performative acts.47
In the context of our analysis of Noah’s curse, ‘yes’ precedes the very possibility of
differentiating performative acts into curse and promise. Having no meaning in
itself, ‘yes’ is a minimal opening of signification. Clare’s ‘yes’ approaches a modal-
ity of language which is neither referential, descriptive, nor performative, but
manifests itself as an excessive, enigmatic event, which can disrupt or subvert the
discursive, historical, and political determinations of power in which it occurs.
The traversal/transformation of language—from the destructive violence of
the curse to mockery, from the affirmative yes to the collective ‘nonsensical, shin-
ing [. . .] pool of talk’—constitutes the most radical linguistic dimension of passing.
Haunted by the spectrality of social death, signified in the novel by the figure of
‘walking on my grave’,48 such a traversal leads towards liminal experience of the
event of language, which is obscured by the violent opposition between curse and
promise. The curse can indicate the liminality of language and being only through
the always already ritualized performance of exclusion, which grounds the author-
ity of law, religion, and power. Yet, by moving on the edge of danger and the edge
of signification, the novel reaches a radically different dimension of liminality
before it solidifies into the opposition between inclusion and exclusion. Prior to the
very possibility of differentiating linguistic acts into male-diction and bene-diction,
the ‘edge’ of passing suspends the reification of language into dictum, law, or
interdiction. Prior to secondary juridical oppositions and qualifications (inter-
diction, male-diction, bene-diction), the threshold of signification is co-terminus
with ‘unfathomable’ diction itself, which, as the Latin etymology of this word
suggests, is the modality of saying embracing both writing and orality, style and
intonation. As a possibility of eloquence without mastery, enigma without dread,
diction reveals the pure potentiality of the word as a creative event. And it is this
freedom of pure potentiality that Irene fears most because, ‘if Clare was freed,
anything might happen [. . .] anything might happen. Anything.’49
146 Law and art: justice, ethics and aesthetics

The collective nonsensical modalities of laughter and Clare’s ‘Yes’ transform

the Biblical malediction into a potentiality that does not yet determine or specify
what is allowed to be (benediction) and what is foreclosed from being (maledic-
tion). Such a ‘let be’ moves, to use Agamben’s Heideggerian formulation, towards
an experience of the word which manifests itself as a ‘common potentiality of
saying, open to a free and gratuitous use of time and the world’.50 By inscribing
herself within this affirmative dimension of language prior to negation and affir-
mation, inclusion and exclusion, benediction and malediction, Larsen’s feminist
aesthetics opens up a collective aesthetic and political potentiality of freedom.
Such freedom transforms the traumatic experience of impossibility, signified
in Passing by Noah’s curse, into a pure potentiality of happening. That kind of
freedom is at once frightening and exhilarating because it proclaims that indeed
‘anything can happen’.
In the ending of Larsen’s novel, the affirmation of radical and perhaps utopian
potentiality—yes anything can happen—is negated as soon as it is proclaimed.
Ironically, it is in the apartment of the Freelands, at the very moment when ‘Dave
Freeland was at his best, brilliant [. . .] and sparkling’51 that Clare finds her death.
As the ambiguity of the novel suggests, perhaps the act of claiming freedom in all
its manifestations is inseparable from the choice of death. Despite Irene’s wishes
or actions, Clare could have chosen death for herself as the ultimate price and
ultimate danger of freedom itself. As Irene admits, Clare ‘got the things she wanted
because she met the great conditions of conquest, sacrifice’.52 Yet, although Clare’s
letters are destroyed and her beautiful body is broken into pieces, the affirmation
of potentiality and laughter remains inscribed on the pages of Passing, as the pos-
sibility of feminist aesthetics. And they signify as yet unknown possibilities of writ-
ing, aesthetics, and freedom, which are yet to come. This is Larsen’s tour de force,
which transforms the curse/benediction divide into the possibility that ‘anything
can happen’.

Notes
1 C. Kaplan, ‘Introduction: Nella Larsen’s Erotics of Race’, in N. Larsen, Passing,
(A. Norton Critical ed.), New York: Norton, 2007, ix.
2 In her seminal essay, Claudia Tate argues that Larsen’s texts have been ignored because
of their narrative complexity, psychological ambiguities, and linguistic enigma, which
defy not only the narrative conventions of a ‘passing’ plot, but also possibilities of inter-
pretation. C. Tate, ‘Nella Larsen’s Passing: A Problem of Interpretation’, Black American
Literature Forum, 14 (1980), pp. 142–146.
3 T. M. Davis, Nella Larsen Novelist of the Harlem Renaissance: A Woman’s Life Unveiled, Baton
Rouge: Louisiana State University Press, 1994, pp. 240–7, 278–9.
4 Saidiya V. Hartman, Scenes of Subjection: Terror, Slavery, and Self-Making in Nineteenth-Century
America, Oxford: Oxford University Press, 1997, p. 51. See also H. J. Spillers, ‘Mama’s
Baby, Papa’s Maybe: An American Grammar Book’, Diacritics 17 (1987), pp. 65–81 and
A.G. Weheliye, ‘Pornotropes’, Journal of Visual Culture 7 (2008), pp. 65–81.
5 N. Larsen, Quicksand in Quicksand and Passing, Deborah E. McDowell (ed.), New Brunswick:
Rutgers University Press, 1986, p. 82.
 Nella Larsen’s feminist aesthetics: on curse, law, and laughter 147

6 N. Larsen, Passing in Quicksand and Passing, Deborah E. McDowell (ed.), New Brunswick:
Rutgers University Press, 1986, p. 233.
7 Larsen, Quicksand, op cit., p. 82.
8 H.A. Baker, Jr., Modernism and the Harlem Renaissance, Chicago: The University of Chicago
Press, 1987, p. 56.
9 Baker, Jr., Modernism and the Harlem Renaissance, p. 56.
10 Larsen, Passing, op. cit., p. 159.
11 Ibid., p. 225.
12 D. Brion Davis, Inhuman Bondage: The Rise and Fall of Slavery in the New World, Oxford:
Oxford University Press, 2006, p. 64.
13 D. M. Goldenberg, The Curse of Ham: Race and Slavery In Early Judaism, Christianity, and
Islam, Princeton: Princeton University Press, 2003, p. 1.
14 Ibid., p. 176.
15 S. R. Haynes, Noah’s Curse: The Biblical Justification Of American Slavery, Oxford: Oxford
University Press, 2002, p. 8.
16 G. Agamben, The Time that Remains: A Commentary on the Letter to the Romans, Patricia Daily
(trans.), Stanford: Stanford University Press, 2005, p. 114.
17 Ibid., p. 114.
18 O. Patterson, Slavery and Social Death. A Comparative Study, Cambridge, MA: Harvard
University Press, 1982, pp. 4–14, 38–46.
19 Ibid., p. 7.
20 H. Arendt, The Human Condition, Chicago: Chicago University Press, 1998, pp. 7–11.
21 Patterson, Slavery and Social Death, op. cit., p. 38.
22 Ibid., p. 48.
23 Ibid., pp. 300–33.
24 G. Agamben, The Time that Remains, op cit., pp. 136–7.
25 Ibid.
26 Larsen, Passing, op. cit., p. 199.
27 Ibid., p. 221.
28 Ibid., p. 239.
29 Ibid., p. 210.
30 Ibid., p. 196.
31 Haynes, Noah’s Curse, op. cit., pp. 94–101.
32 Ibid., p. 101.
33 S. Freud, Jokes and Their Relation to the Unconscious, The Standard Edition, James
Strachey (trans.), New York: Norton, 1989, p. 125.
34 Ibid., p. 122.
35 Ibid., p. 7.
36 Ibid., p. 13.
37 Ibid., p. 123.
38 Ibid., p. 124.
39 Ibid., p. 36.
40 Ibid., p. 66.
41 Larsen, Passing, op. cit., p. 234.
42 Ibid., p. 221.
43 Ibid., p. 237.
44 Ibid., p. 239.
45 Ibid., p. 233.
46 Ibid.
47 J. Derrida, Acts of Literature, Derek Attridge (ed.), New York: Routledge, 1992,
pp. 294–308.
48 Larsen, Passing, op. cit., p. 176.
148 Law and art: justice, ethics and aesthetics

49 Ibid., p. 236.
50 G. Agamben, The Time that Remains, op cit., p. 136.
51 Larsen, Passing, op. cit., p. 237.
52 Ibid., p. 236.
Chapter 8

I wish you well

Notes towards an aesthetics of
welfare
Adam Gearey ∗

I
Can we speak of an aesthetics of welfare? Eschewing conventional political,
philosophical or economic analyses of welfare, this chapter begins with So Long – a
poem by Walt Whitman. Whitman’s farewell will give us an insight into the
meaning of welfare – of faring well; and references to Song of Myself will continue
to assist the development of our thesis. We will argue that, provided a certain
definition of aesthetics is accepted, it is possible to use re-worked Heideggerian
notions to arrive at a radical understanding of our concern for the welfare
of others. Our definition of aesthetics returns to the root meaning of the word:
aesthesis, which we understand to mean our sensuous engagement with the world;
the sense that comes out of our encounters with others. Thinking of aesthetics
and being-with runs a number of risks and begs difficult questions. Its starting
point is Jean-Luc Nancy’s re-reading of Heidegger; this essay attempts to follow
a path that Nancy’s thought opens up. In particular, we will be concerned with
aesthetics as a way of appreciating our being-with others; a being-with that we
will articulate in ethical terms as welfare. Given the length of this chapter, these
issues cannot be addressed in detail: what follows are thus notes towards a further
investigation.

II
Camerado, this is no book,
Who touches this touches a man,
(Is it night? Are we here together alone?)
It is I you hold and who holds you,
I spring from the pages into your arms – decease calls me forth.
(Walt Whitman, The Complete Poems, 1986)1

[. . . .]
Dear friend whoever you are take this kiss,
I give it to you especially to you, do not forget me2
150 Law and art: justice, ethics and aesthetics

Walt comes before us, addresses us as friends and comrades – and tells us a number
of things. In this late poem, the one who does not want to depart takes his leave
of us. Walt the wayfarer, always setting out, is leaving for the last time. It is as if
his address awakes us from a torpor – we are interpellated, ‘hailed’. The fourth
line of the verse quoted above appears to describe the sense in which the poem
‘works’. In reading the poem, in answering Walt’s call, we touch him – and – at
the same time, and by the same token, his words touch us. His words are not dead
signs on a page. Indeed – ‘decease calls me forth’: we touch, we hold, we read, we
receive the kiss. The poem is the token of this tactile meaning.
So, this is a poem of leave taking. But it is also a poem about welfare – about a
concern for a comrade, a friend. Perhaps we are all friends and comrades taking
leave of each other. The poem could be read as suggesting that welfare is one of
the conditions of our being.

III
To elaborate our argument, we need to stress that the aesthetic is not to be under-
stood as a theory of the beautiful, but in a sense closer to that performed by
Whitman’s poem. This returns to the root meaning of aesthesis – the realm of the
human perception, of sensation in the material world. This can be elaborated as:

the whole of our sensate life together – the business of affections and aver-
sions, of how the world strikes the body on its sensory surfaces, of that which
takes root in the gaze and the guts and all that arises from our most banal,
biological insertion into the world.3

We want to stress a number of parts of this definition. It directs our attention

towards our ‘sensate life together’. Is this ‘biological’ or ‘banal’? In what senses are
we ‘inserted’ into the world? As any argument over whether or not we are con-
cerned with a biological process would be distracting to our main thesis, we will
leave this point to one side. Certainly, though, we will concern ourselves with mat-
ters far from ‘banal’. The aesthetic as our ‘sensate life together’ provides us with
an understanding of how being-with is fundamental to our understanding of
Dasein.
At this point we will engage in a brief digression. What is Dasein? Answering
this question in a satisfactory way is not possible, but we can offer some brief intro-
ductory comments about the understanding of Dasein that informs this chapter.
Whilst ‘Dasein’s Being is not to be deduced from an idea of man’4 and cannot
simply be linked to ‘that entity which in each case we ourselves are, and which we
call ‘‘man’’’,5 the question of the meaning of Dasein must take us to the kind of
Dasein for whom being is an issue. Can we call this being man? This would involve
an exacting analysis, for Being and Time is not ‘anthropology’.6 However, let us say,
for sake of argument, that we could at least coordinate the question of Dasein with
the questioning of being that takes place in human thought, or – rather – in the
 I wish you well: notes towards an aesthetics of welfare 151

thought of men and women about ontic issues; the ongoing dealings we have with
each other and with the world.
If these dealings are those of homo cogitans, then thought is rooted in the material
world homo signifies humus7 – the material location which ‘holds fast’ man during
his ‘temporal sojourn in the world’.8 Describing this being in the world makes use
of a notion that will concern us below: care. Care is essential to the structure of
human Dasein. This can be understood in terms of Seneca’s last epistle, which
Heidegger refers to at this point in his analysis. Seneca splits nature into four:
trees, beasts, man and God. Only the last two have reason. Man and God are
different, because man is mortal and God is immortal. God’s being is good by
nature; man’s being is ‘care’. This is glossed by the text as man’s perfectio or the
‘transformation [of man] into that which he can be in Being-free for his ownmost
possibilities’.9 So, in the most brutal summary, we are concerned with the question
of Dasein as that which calls men and women to their ‘ownmost possibilities’
through some notion of care; a care which, we will argue, relates to our being-with
each other.
To return to the main thread of our argument: how does the understanding of
the ‘sensate’ direct us to the experience of meaning that is peculiar to Dasein?
To build this argument, we need to put to one side some problematic points. Is
aesthetics entirely to do with sensation? This would touch upon the ancient debate
over the nature of moral or ethical experience. We cannot hope to engage with
this problem, but we will show that a broad approach to an understanding of
ethics can be linked to the idea that aesthetics is concerned with our life together
and with the sense of our being in the world. This ethical sense cannot be captured
in a philosophical language of subject and object and does not present itself in a
conventional terminology of duty, obligation or utility. We will argue that aesthet-
ics relates to a world of sense that is not just logical sense but sensuous experience:
the rhythms, the encounters we have with others; the kiss; the glance; the grain of
a voice; a touch . . .
Before we develop this thesis, we need to look at the definition of welfare.

IV
It is necessary to disentangle ‘welfare’ from its contemporary associations in order
to discover its prior meanings. The Oxford English Dictionary (1989) gives the follow-
ing definitions of the term: it is an expression of good wishes: ‘may it go well with
you’. This relates to the more modern sense: ‘the state or condition of doing or
being well; good fortune; happiness; or well being; to thrive, be successful, to enjoy
prosperity’. This extends to: ‘maintenance of members of a group or country in a
state of well being organised by legislation or social efforts’. As this definition sug-
gests, the issue that we encounter is the contemporary link made between welfare
and the state. Welfare becomes almost entirely to do with the sense in which social
policy can achieve the ‘well being’ of its objects. Our argument does not seek to
destroy this link, or even to suggest that welfare is not properly the concern of the
152 Law and art: justice, ethics and aesthetics

state or other agencies. However, any return to this complex of meanings can only
take place after a recovery of the root meaning of the word. The first step in this
argument, then, is to look at the first part of the definition: the hope that ‘it may
go well with you’. Let’s elaborate this original meaning.
Welfare is a conjunction of two words: well and fare. Limitations of space
prevent us from tracing the etymology of ‘well’. However, as our argument can be
followed if we accept its conventional present usage, we can concentrate on the
‘fare’. Fare derives from an Aryan root meaning to pass through, to go or to travel.
It is related to the Greek word for a way, a passage or a ford, and to the latin
portare – to carry. The sense of the word can also perhaps be glimpsed in the Old
Norse, Swedish and Danish, where it relates to a parting or a leave taking. These
meanings filter through into English. In 1377 Langland can write, ‘frendes, fareth
well’. In the sense of faring, the word can be related to ‘making one’s way’; and to
the idea of how one conducts oneself or behaves. Thus Malory in 1470 can write:
‘Ye fare as a man’. Cognate senses relate not so much to conduct or behaviour,
but to events; the way things fall out or happen. An example from 1481 would be
the phrase ‘so faryth by me’ – an experience of good or ill fortune; a usage that is
still clear in the expression from 1607 – ‘to fare the worst’.
From this complex of associated meanings, we can perhaps derive a common
sense: welfare expresses a desire that others enjoy good fortune, that things turn
out for the best; and perhaps –a concern that things should go well for all of us;
that I wish you well in the same way that you wish me well; a reciprocal well
wishing. We want to develop this point to suggest that the encounter in which
we wish that the other goes well – in which we express a concern for his or
her welfare – provides the basic ‘terms’ of ‘social being’; our being together. Below we
will suggest that (at least) one element of welfare is care for others.

V
Our argument now turns to the notoriously difficult term: Dasein. There are two
initial problems. Although Dasein ‘is essentially for the sake of others’,10 there is
certainly nothing explicit on welfare in Being and Time. It is also necessary to show
how Dasein can be interpreted through being-with. There are other risks. At worst,
our argument might repeat Heidegger’s own mistakes – and turn welfare into the
expression of a leader who can somehow speak for and care for a people. This is a
long way from the meaning of welfare we are pursuing. But Being and Time does not
need to be read as the work of a fascist or a crypto fascist. How, then, can we
approach Dasein? Where can we begin?
Heidegger’s analysis of Dasein puts in place a fundamental question at the start-
ing point of any thinking of ‘we’: ‘we’ are the beings for whom being is an issue.
This is not just a question of how we understand the world, but how we under-
stand ourselves: ‘in terms of the possibility of either being or not being itself’.11
For Heidegger, Dasein is an ‘entity’ that ‘has to be’ – that has to ask the question of
its own being – and respond to this question in an authentic or inauthentic way.
 I wish you well: notes towards an aesthetics of welfare 153

We will see that this takes us to an analysis of the conditions in which Dasein can
be involved with others. In this sense, the question of Dasein is an ethical question.
It is as if we have to ask the question of ourselves – we cannot but help the question
of our being. Building this argument will take us back to the sense of aesthetics
elaborated in III; but we need to take a couple of steps backward before we can
appreciate the relevance of this point.
The world is meaningful for Dasein. The manifold meanings of the world are
not subject-object relationships. Dasein’s world is meaningful because Dasein is
involved with the world. Moreover, the world is meaningful for Daseins who com-
municate with each other. Communication is a way of bringing something to
someone’s attention: ‘[l]etting someone see with us shares with the Other that
entity which has been pointed out’.12 This might further the sense in which under-
standing is not just the conveyance of information, but the ‘sharing’ of a ‘Being
towards’ what is appreciated ‘in common’.13 However, we need to be a little
careful with ‘communication’. This chapter does not follow the Habermasian
path towards a discourse ethics (see VII below). Whitman reminds us that com-
munication is not simply a search for rational consensus; it is somehow always
involved in experiences like leave taking; a setting out and a backward glance;
‘so long’; see you . . .

VI
We will follow Jean Luc Nancy’s arguments that thinking Dasein through the mean-
ingfulness of the world produces a much clearer orientation to the communal nature
of being together than Being and Time allows. For Nancy, meaning is to be understood
in a very specific way. We ‘are’ meaning. This means that meaning is meaningless
without the production and circulation of meaning in human thought and language.
The given-ness of being, the fact that ‘is’ is understandable to ‘us’ means that ‘we’
are the meaning of being that circulates in and as the exchange of meaningful
statements between ‘us’: meaning is only possible because it can be ‘shared’.14
Whitman can help us with these themes. Consider Song of Myself. The second
line of the poem immediately addresses an interlocutor; indeed, the interlocutor
must be present even before the first line, as the person to whom the poem is
addressed, or to whom Walt is speaking. The poem thus provides an opening and
founding link between an interlocutory other, and a discourse that brings together
the speaker and the listener in the sharing of a common substance: ‘every atom
belonging to me as good belongs to you’.15 The precise nature of what is shared is
the subject of the poem. In Nancian terms this is the circulation of meaning that
requires Dasein to exist: ‘Being as being with-one-another’.16 The experience of the
other as the other person with whom one is with can be understood by stressing
the ‘between’17 as the inherently communal space where language and meaning
circulate and are shared.
But, how does this relate to aesthetics? The point is that this sharing and circu-
lation cannot be apprehended through reason alone. Song of Myself can again help
154 Law and art: justice, ethics and aesthetics

us with this theme. The poem articulates how access to ‘the puzzle of puzzles//[And]
that we call Being’18 might be possible. This leads onto the discussion of touch:
‘I merely stir, press, feel with my fingers, and am happy . . .’ This is a compellingly
simple image of the presence of others divined through touch.19 Indeed, Walt asks:
‘What is less or more than a touch?’20 This is because ‘[l]ogic and sermons never
convince’.21 The world that we share must be apprehended amorously or sensu-
ally; it carries its own meaning that may or may not ‘come’.22 Apprehension awaits
articulation and, as Song of Myself shows, touch and its meaning can be spoken, but
there is always something more or less than a touch.

VII
It is useful at this stage to pick up on a point made above (III). We need to show
(at least in outline) how our argument, rooted in an aesthetic appreciation of
being-with is distinct from that put forward by Habermas. Habermas certainly
takes seriously the need to focus social thinking on the ‘altruistic concern[s] for the
welfare of a fellow being in need of help’.23 The problem is that he dismisses a way
of thinking that is essential to this approach. To grasp this point, we need to turn
to Habermas’ reading of Mead – a fundamental moment in the constitution of
the theory of discourse ethics. Mead produced an influential understanding of
‘universal discourse’ by showing that parties can adopt each other’s perspectives
in social interaction. Discourse articulates a sharing of feeling that would other-
wise take place ‘privately and [in] isolation’.24 It allows an appreciation of the
needs of one’s ‘fellow man’ and a thinking of ‘general welfare’.25 For Habermas,
Mead’s work points towards the entirely ‘pragmatic’ assumption that those con-
cerned are all equal partners in a search for the ‘truth’ articulated by the best
argument: ‘[t]he principle of discourse ethics – that only those norms may claim
validity that could find acceptance by all those concerned as participants in a
practical discourse – is based on this universal pragmatic state of affairs’.26
Does sense only come about through rational discourse? Do others only become
objects of concern for us because we talk to each other?
Perhaps Habermas misreads Mead. Indeed, his reading of Mead only becomes
possible if certain aspects of the latter’s work are down-played as they point at an
understanding of meaning that does not figure in the development of universal
pragmatics. We need to look at Mead’s description of the thick world of meaning
in which the human being moves. This requires us to go back to the ‘primitive
situation’27 in which human beings share something with animals and insects.
This suggests that there is something underlying human behaviour that is not
simply reason, intelligence or language. It is to do with being in a world where
meaning comes from ‘impulses’; from being alongside or being-with others,
from rhythms and encounters with a world that is inherently meaningful.
Observation of bees and ants suggests that their ‘social’ organisation depends
on differentiation of tasks, and communication between highly differentiated
‘individuals’. In the ant nest and the bee hive, individual insects perform different
 I wish you well: notes towards an aesthetics of welfare 155

functions in the interests of the preservation of the community; a set of functions

that presupposes ‘communication’ between both individuals and generations.28
We may be ‘in the dark’ about these ways of being; but we can observe the dance
of the honey bee, the encounters between ‘worker’ ants, and have to assume that
their worlds are thick with meaning.
Let’s be careful. This is not strictly a suggestion that insect organisation pro-
vides an evolutionary clue to human solidarity.29 It points towards the peculiarity
of human meaning as a ‘multiplicity of responses’30 to a world of things that takes
us back to the structural human susceptibility to meaning: ‘[t]hrough the organ-
isation of the central nervous system the different reactions . . . may be combined
in all sorts of order, spatial and temporal’.31 The world communicates itself to us
in ‘impulses’ – our sensory equipment becoming ‘excited’ and ‘go[ing] off by
themselves’ to produce ‘combinations’ of reactions and impressions. Our bodies
root us in a world that is inherently meaningful to us. If solidarity is about mean-
ing, it might point towards a way of thinking about solidarity through being-with.
Whilst this theme is implicit in our argument, we cannot develop it in the detail
that it deserves, and it must await future research. Our main point is that Mead’s
thought concerns itself with meanings that are constituted through their circula-
tion between sentient points. Each point is a cosmos. To call it social reason after
Habermas would be both accurate and inaccurate. It is accurate because – as a
human phenomenon – it is linked to language and self-reflexive intelligence; it is
inaccurate, because it is made possible through a living of meaning that is not
simply rational.

VIII
So far, we have argued that being is being-with, but how can we argue that being-
with can be linked somehow with an ethics?32 We now turn to these concerns. In
overview, we will argue that we need to make sense of the term ‘care’. In order to
do this, we will examine some ideas that pre-date Being and Time as they show how
certain themes that are relevant to our analysis were perhaps down-played as
Heidegger developed other key ideas. Our focus will be on Heidegger’s lectures
on Aristotle.33
In his Freiburg lectures, Heidegger examined ‘what is lived, the content aimed
at in living, that which life holds to’.34 This concern links life to a world understood
through ‘relational sense’ that cannot be grasped by concepts of subject and object.
To briefly reconstruct this argument, the relational sense of factical life is given by
caring – where care is understood as ‘[m]eaningfulness’.35 To care is to direct
one’s attention to something; to the things that ‘one encounters’. Of course, we
cannot simply conflate this technical meaning of caring with what we take care to
be: a concern for the other; but, we can follow a line of argument that allows a
phenomenological orientation to care as a concern for the other person. Essential
to care is ‘unrest’.36 Although the text breaks into note form at this point, it does give
us some sense of how unrest might be construed. Unrest relates to ‘the undecidable’
156 Law and art: justice, ethics and aesthetics

‘between’ which appears to be glossed as the ‘shared world’ and ‘individual world’.
The ‘individual world’ is the world in which the ‘ego’ or the ‘myself’ emerges as
both constituted by, and (we might say) given to unrest by the fact that ‘one’s own
world’ is always present with ‘the shared world’.37
This meditation moves towards a reading of Aristotle’s Nichomachean Ethics38
and the idea of the difficult ‘middle course’. One must not be distracted by ‘excess
and deficiency’. Indeed, this is central to the basic terms of ethical experience.
The ‘myself’ – located in a meaningful world – does not somehow pre-exist its
experiences, but is defined by the context of the shared world. One of these
contexts linked to care is the possibility of correct action.39 If we could say that
correct action is ethical action, then, following Aristotle, ethics is unrest; it is about
asking questions within any given ‘life nexus’40 that allow a ‘genuinely explicative
grasp of life’.41
Ethics is a question of how unrest is ‘lived’ – how the experience of unrest and
difficulty becomes meaningful. One must not be distracted or provoked to excess,
but comprehend ‘unrest’ as the way in which one is with others. Importantly,
this is why life ‘has the character of special autonomy’.42 Autonomy has a slightly
unusual sense. It is ‘an auto-motion, which is precisely its own in the fact that life
lives outside of itself’.43 Autonomy is not, then, a ‘power’ of the self. It is something
that comes to the ‘myself’ from ‘life’ and moves it. The rather difficult grammar
can perhaps be untangled to suggest that the life ‘outside of itself’ defines the ego
in the first place. The ethical ‘outside’ is the negotiation of self and other:

[t]he setting into relief of one’s own world is not a denial of the others, but,
quite the contrary, the setting into relief of one’s own world [that] co-actualizes
and determines the sense of an appropriation of the shared world and the
surrounding world – and the same for each of the others.44

These themes are intensified in the later Marburg lectures, and we can see how
they provide a further elaboration of our arguments above in V and VI. The mean-
ingfulness of the world is now linked to the argument that the human being has the
‘character of speaking’.45 Heidegger explicitly stresses that ‘the basic determination
of [human being] itself is being-with-one-another’46 – and being-with-one-another
expresses itself through speech about something to someone. Hearing is seen to be
the prior phenomena. The human being is one that ‘hears itself ’ – where to hear
oneself is the foundation of taking notice of something and reflection. Being-with-
one-another is thus a speaking and hearing of things that we bring to each other’s
attention. The concept of ‘living with one another’ – the everydayness of being
together leads on, through a discussion of ‘idle chatter’ into an appreciation of the
phenomenon of ‘concreteness’.47 This suggests that the authentic response is a
realisation of the co-imbrocation of self and other in specific situations. Dasein’s
fundamental constitution is in the ‘living with one another of human beings’.48
To what extent can we extend this argument to suggest that Dasein understood
as being-with can be linked to welfare?
 I wish you well: notes towards an aesthetics of welfare 157

IX
In Being and Time, Heidegger speaks of solicitude49 as the concern that one Dasein
has for another. It is important to note that solicitude translates the German
fürsorge – which is glossed as ‘welfare work’.50 The translation stresses that we are
not concerned with care for an individual, but, a general expression of care. In
English, we would ‘speak of welfare work or social welfare’.51 Strictly, fürsorge is a
‘factical social arrangement’.52 So, the care we are analysing is general in its
expression; public rather than private. It is care for others in general. Whilst there
is undoubtedly a way of thinking of care as a more intimate or perhaps even
familial experience, our present focus is on the public expression of care.
We often come across those who are suffering misfortune. Misfortune can be
that of ill health, unemployment, or ‘things just not going well’.53 There are, of
course, a range of ‘things not going well’ – some of which are entirely personal.
But, one could also speak of the common misfortunes of the public world. If we
return to the etymology of welfare in IV, we can appreciate that the desire that
‘things should go well’ for the other is precisely the concern that the other should
not suffer misfortune. Now, it might be said that the welfare state creates a common
responsibility for certain kinds of misfortune and suffering. Whilst this linkage
between welfare and state is not in any way invalid, we do not want to suggest that
our concern with welfare necessarily terminates in the welfare state (we touch
upon these matters in X). Our concern is to locate the terms through which the
response to the misfortunes of others might be understood in a primordial way.
Our hunch is that behind welfare lies an awareness of the contingency of
human existence that is expressed in the popular phrase, ‘there but for the grace
of God, go I’. This phrase is important, as it suggests that we appreciate that –
despite the more or less solid sense of ourselves emerged in our own affairs, there
is the realisation that ‘things’ could (so easily) be different. To understand this
phrase and the sentiments it evokes is to have an ‘existential’ understanding of
welfare: ‘it’ (one’s life) could so easily have been otherwise. At this point what
appears so solid and definite – one’s embodiment, the certainty of self, seems to
become less sure. One could so easily be in the position of the other person, with
whom one compares oneself.
At this point in our argument, we need to pause for a moment. Our analysis of
everyday experiences and phrases like ‘one’s life’ are – more properly – merely the
starting point of a fuller analysis. In Heideggerian terms these expressions and
experiences would be considered ontic issues. They are questions about things and
people in the world. A proper, rigorous examination of ontic matters – through
ontological analysis – would reveal the structures of our experiences. Such a care-
ful and nuanced analysis can only be hinted at in this chapter. Thus, our com-
ments merely gesture at the contours of how certain concerns could be thought.
So, perhaps welfare – as public care – is constituted (at least in part) by these
experiences of caring for those who have suffered misfortune. If we reflect further
on those moments when we encounter others, we are struck by the way in which
158 Law and art: justice, ethics and aesthetics

care may or may not come into focus. Certain events, feelings or confrontations
that occasion feelings of care for others might actually become actions to alleviate
suffering. At the same time, we are constantly distracted. The response to the
plight, privations or suffering of others is obscured. We fail to act; or our thoughts
move on. Whether or not this takes us to the institutionalisation of care through
something like a welfare state must – at this point – be left open to question. We
want to focus on the primordial risks of distraction from care – and this concern
takes us to the ‘they’.
For Heidegger, Dasein can easily become distracted from itself; which is the
becoming lost of Dasein in the numerous ‘they’: das man. The ‘they’ are not ‘definite
Others’54 but a mass: they are not, ‘this one, not that one, not oneself, not
some people, and not the sum of them all’.55 Dasein dissolves into the mass – nothing
is definite or resolute. Whilst we feel that at least part of this analysis remains
relevant – the notion of distraction – the fundamental problem is that the ‘they’
are not necessarily an anonymous mass. The ‘they’ are those we live amongst.
In care, the ‘they’ become individuals whose privations must be appreciated as
both that of singularities, and of a potentially common plight.
The concern with distraction is thus essentially a working out of the difficulty
of authentic ethical experience. The way in which ethical unrest is lived.
Heidegger’s theme of ‘idle talk’ can be interpreted in the light of this theme as
follows. Idle talk is the opposite of understanding – an ‘undifferentiated kind of
intelligibility’56 that imposes on Dasein both a way of thinking and feeling. Idle
talk in the context of care as welfare describes – amongst other problems – the way
in which certain forms of contemporary media attempt to ‘take concern away’
and to present it in terms of soundbites or simplification. These representations
are not entirely the product of a media spectacle, but reflect popular and deeply
held ideas. In a much broader sense, this is the discourse of the ‘scrounger’ and the
‘cheat’. Whilst care and compassion involves calculation – and some recognition
that a person takes responsibility for themselves – the discourse of the scrounger
tends to make these terms the only relevant response to the misfortunes of others.
It makes ethics ‘easy’. It allows simplistic judgments and, no doubt, equally simplistic
political response.
This theme touches upon another concern – and one that would require a
detailed reading of Heidegger. To deal with it properly, our analysis would have
to engage with a thinking of the politics of welfare; a politics that takes place in a
media-saturated environment. In Heideggerian terms, this would point us towards
the problem of technology. At this point we merely want to indicate that it would
require a great deal of work to elaborate themes of technology, welfare and care.

X
In this final section, we want to elaborate a theme that has been implicit in our
analysis: how is it possible to move from any ethic of welfare to tackle the difficult
‘institutional’ sense that lies behind the conjunction welfare-state? We want
 I wish you well: notes towards an aesthetics of welfare 159

to deal with one basic point. Is there an institutional form of care? We would
have to begin by thinking the institutional sense of being-with. There are some
clues as to how this might be done in Nancy’s work. Nancy speaks of the social
bond as expressed through the latin prefix ‘cum’ – ‘being-with’. For there to be a
society the cum has to assume symbolic form – it has to become a series of repre-
sentations of ‘one another according to which they are with one another’. Could
we extend from this argument, to suggest that an articulation of the social bond
requires not just representations, but institutions also? If, for Nancy, the ‘cum’ lies
behind any expression of being-with, then we can find certain resonances between
the definition of compassion as to suffer together with, where the com is related to
the Latin cum (with). Might this suggest that our analysis points towards some
re-worked notion of welfare as institutional form of compassion for others? Such
matters await further investigation.

Notes
∗ My thanks to Oren Ben-Dor for the paths he has opened up.
1 W. Whitman, The Complete Poems, F. Murphy (ed.), London: Penguin Books, 1986, 513
lines 54–58.
2 Ibid., 514 lines 64–65.
3 T. Eagleton, The Ideology of the Aesthetic, Oxford: Blackwell, 1990, p. 13.
4 M. Heidegger, Being and Time, John Macquarrie & Edward Robinson (trans.), Oxford:
Blackwell, 1962, p. 226.
5 Ibid., p. 241.
6 Ibid., p. 244.
7 Ibid., p. 243.
8 Ibid.
9 Ibid.
10 Ibid., p. 160.
11 Ibid., p. 145.
12 Ibid., p. 197.
13 Ibid.
14 J-L. Nancy, Richardson, R.D. and O’Byrne, A.E. (trans.), Being Singular Plural, Stanford:
Stanford University Press, 2000, p. 2.
15 Whitman, op cit., 63, 1: 4.
16 Nancy, op cit., p. 32.
17 Ibid., p. 5.
18 Whitman, op cit., 91, 26: 609–10.
19 Ibid., 91, 27: 616.
20 Ibid., 93, 30: 653.
21 Ibid., 93, 30: 653.
22 Ibid., 93, 30: 648.
23 J. Habermas, ‘Justice and Solidarity: On the Discussion concerning Stage 6’, Nicholsen,
S.W (trans.), in Wren, T. E. (ed.), The Moral Domain: Essays in the Ongoing Discussion between
Philosophy and the Social Sciences, Cambridge, MA: MIT Press, 1990, p. 237.
24 G.H. Mead, Mind, Self and Society, Chicago: Chicago University Press, 1967, p. 236.
25 Habermas, op cit., p. 237.
26 Ibid., p. 235.
27 Mead, op cit., p. 45.
160 Law and art: justice, ethics and aesthetics

28 Ibid., p. 232.
29 Indeed, Mead himself acknowledges the structural reasons that make the human being
different from the insect and human intelligence qualitatively different from the instinc-
tual world of the lower animals. Although ants, bees and humans have brains, see
Mead, op cit., p. 236 - insects ‘have not anything that answers to the cortex’ (p. 236) and
the ‘central nervous system’ which is a ‘peculiar development of the brain and cortex’
(Ibid). Human development – related structurally to the cortex, is the ‘physiological
background for language’ (p. 234). Mead asserts that ‘[S]peech and the hand go along
together in the development of the social human being’ (Ibid. p. 237).
30 Mead, op cit., p. 236.
31 Ibid., p. 240.
32 A major concern in the philosophy of compassion is the extent to which compassion is
ultimately egotistical. Our orientation to the term would have to suggest the opposite;
that in compassion, the self is turned outwards towards the other. We cannot discuss
what Nussbaum calls the ‘cognitive structure’ of compassion. See Nussbaum, M. (2010),
‘The Cognitive Structure of Compassion’ in C. Williams, (ed.), Personal Virtues,
Basingstoke: Macmillan. Any proper phenomenology of compassion would have to
return to this classical source – and indeed, a much fuller engagement with Heidegger’s
own readings of Aristotle. A useful reference point is Wolfgang Schirmacher, ‘The
Faces of Compassion’ in A.T. Tymieniecka (ed.), Morality within the Life- and Social World,
Dordrecht: Kluwer Academic Publishers, 1987.
33 Heidegger lectured on Aristotle in Freiburg between 1921–22 and somewhat later, in
Marburg in 1924. M. Heidegger, Phenomenological Interpretations of Aristotle, R. Docjcwicz,
(trans.), Bloomington: Indiana University Press, 1985, is the text of the Freiburg lec-
tures and the Marburg lectures are translated in M. Heidegger, Basic Concepts of
Aristotelian Philosophy, R.D. Metcalf, and M.B. Tanzer (trans.), Bloomington: Indiana
University Press, 2002. Neither text can be read as a specific development of a theory
of compassion, although both texts do touch upon congruent themes.
34 M. Heidegger, Phenomenological Interpretations of Aristotle, op cit., 65.
35 Ibid., p. 68.
36 Ibid., p. 70.
37 Ibid., p. 71.
38 Aristotle, Nichomachean Ethics, b5, 1106b28ff, 81. H. Rackham (trans.), Cambridge, MA:
Harvard University Press, 1934.
39 M. Heidegger, Phenomenological Interpretations of Aristotle, op cit., p. 64.
40 Ibid., p. 85.
41 Ibid., p. 86.
42 Ibid., p. 96.
43 Ibid., p. 97.
44 Ibid., p. 71.
45 M. Heidegger, Basic Concepts of Aristotelian Philosophy, op cit., p. 71.
46 Ibid., pp. 70–1.
47 Ibid., p. 176.
48 Ibid.
49 M. Heidegger, Being and Time, op cit., p. 157.
50 Ibid., p. 158.
51 Ibid., p. 157 (ftn).
52 Ibid., p. 157.
53 The essential reference point is Aristotle’s delineation of compassion in The Rhetoric,
Aristotle (1975), The Art of Rhetoric, J. H. Freese (trans.), Cambridge, MA: Harvard
University Press, 1385b13 ff. The events that spark compassion are: ‘death, personal
ill-treatment and injuries, old age, disease and lack of food’ (ibid., p. 227). Pity is the
 I wish you well: notes towards an aesthetics of welfare 161

response to the sufferings of those ‘we know’ – but we ‘are not closely connected with
them’ (ibid., p. 229). We also tend to pity those who are similar to us and in a proximal
relationship. This is because ‘suffering is before our eyes’ (ibid., 231). In the terms devel-
oped above, our response to suffering concerns the world that we share; the world that
is most in our sight and hearing.
54 Heidegger, Being and Time, op cit., p. 164.
55 Ibid.
56 Heidegger, Being and Time, op cit., p. 213.
Part II

When law meets art

Creativity, singularity and
performance
Chapter 9

The torch of art and the

sword of law
Between particularity and universality
Zenon Bańkowski and Maksymilian Del Mar ∗

Introduction
Much has been written about the capacity of the arts, especially the visual arts, to
enable us to recognise the particularity of suffering around us. Equally, much has
also been written about the universalising tendency of legal norms, and their
capacity to make certain forms of suffering invisible in the name of and under the
cloak of universality. The arts, in their particularity, make visible what the law,
in its universality, makes invisible. We want here to explore this by looking at a
particular way that art and aesthetic experience might relate to law.
When people view art objects in galleries, too often they rely on textual explan-
ation, looking for the text in the catalogue to explain it, not letting the object
explain itself. Some curators try to get people to engage the art object without text,
to use their imagination to let the object speak to them and not be subsumed by
the text. Lawyers face an analogous situation when they encounter events that
need decision; too often they look to the text and do not experience the particular-
ity of the situation by letting it speak for itself.
For law is a text-based discipline. Law can be viewed as one of the religions of
the Book – as one of the Abrahamic faiths and that is both its strength and its
weakness. It is its strength in that it enables decisions to be transparent and con-
strained by the text; it is its weakness in that decisions tend to be dominated by
text, and situations are shoehorned into the text with stultifying results. The answer
is always sought within the text, viewing the situations law encounters through the
optic of the text and thus manipulating them rather than transforming them, and
not letting the situation speak to the text and the law. So we need something
more.

The space to see

What we are seeking to argue is that there ought to be a ‘space to see’ in which we
can allow the imagination to be used so that the text can be transformed and
regenerated. What is this space? Michael Detmold puts it thus. For him, in law
there is always what he calls a ‘Particularity Void’. This is the space where the
166 Law and art: justice, ethics and aesthetics

universality of the law meets the particular, the case or decision it has to make.
In this space, says Detmold,

I, the judge (. . .) at the moment of practicality entered the unanswering void

of particularity, the realm of love, about which only mystical, poetic things
can be said . . . or nothing . . . Judges enter this realm everyday.1

In a similar way, rather than let the subject capture the object, we want to allow
the object to break into the universal circle of the law and influence it. What is
important is to be able to recognise the suffering that is before you, before the law.
For it is in this misrecognition that we find what might be called the violence of the
law. So, in Ealing London Borough Council v Race Relations Board,2 the question before
the court was whether one Mr Zesko, a Polish ex-RAF pilot, who had remained in
Britain after the war because of the political situation in Poland should be given a
council house. He had never taken British nationality, even though as a political
refugee he had settled in the UK, for a complex set of reasons among them being
the betrayal of Poland at Yalta. Ealing Borough Council, the relevant housing
authority, in making British nationality a priority for the housing list refused him
on the grounds that he was not a British national. But the question the court asked
was not whether Zesko, this ex-Polish fighter pilot with his particular history should
have a house, but whether, according to the Race Relations Act, discrimination ‘on
the grounds of colour, race, or ethnic or national origin’ includes legal nationality.
But notice what happens. Zesko is now out of the picture and the judges talk of
classes of people who might or might not represent him who is no longer there –
he is subsumed under the rules and invisible. Rules then conceal the particular,
which ought to spark the decision, under their aegis. They ignore the mystery and
beauty of the particular; it is moulded by the law rather than moulding the law.
Think of an assembly line for producing cars. There will be a robot programmed
to paint car doors as they go past it on the line. This will work all right as long as
the pieces of metal that go past are the right size. If a non-standard size piece of
metal goes by then a standard door shape will still be painted on it, ignoring its
actual shape! Imagine an ATM. You put your card in and the machine reads that
card, calculates if you have money in your account and depending upon that pays
out. But what has happened is that the machine has not encountered you, it has
not seen you as you are. Rather it has constructed you, as the chip that tells it how
much money you have in your account – so if you have no money but desperately
need it to stay well and alive it will ignore that. It will not see your suffering. For
this perfectly laudable aim – to be able to treat everyone equally – the law con-
structs the abstract you, the legal subject and bearer of rights and duties that will
be treated formally equally with every other holder of rights and duties. But in the
process you and your suffering humanity have disappeared.
But this does not mean that universality and universalism, like Zesko the par-
ticular we talked about above, now vanish and we have a chaotic world peopled
with unconnected particulars. Rather there is a complex interrelation. To explicate
 The torch of art and the sword of law 167

this, let us take the concrete example of the particularity void that Detmold gives.
He takes the confrontation between Pierre and Davout in Tolstoy’s novel War and
Peace. Davout has been given orders to shoot Russian spies but he does not shoot
Pierre. Holding his rifle, he, looks at him, hesitates and does not fire. Tolstoy says
that at the moment of hesitation many things passed through Davout’s mind:

Davout lifted his eyes and gazed searchingly at him. For some seconds they
looked at one another, and that look saved Pierre. It went beyond the circum-
stances of war and the court-room, and established human relations between
the two men. Both of them in that one instant were dimly aware of an infinite
number of things, and they realized that they were both children of human-
ity, that they were brothers.3

Here one can see the link between the universal and the particular, for what
Davout sees and justifies is a universal, ‘All men are Brothers’ but he does that
through paying attention to Pierre, i.e., through seeing and reacting to the suffer-
ing that he sees in that particular man. All men are brothers indeed, but it is
because Davout encounters and pays attention to the particular Pierre that he can
come to that view and see through the enemy. It is not a brother he sees but
Pierre, someone who should be treated as a brother and so he does. Through
paying attention to the particularities of this case he gains the imagination to see
the expansion and deeper truth of ‘All men are brothers’ (sic).

Beyond text and the space to see

We want to operationalize this ‘ineffable moment’, this ‘unanswering void’ where
only ‘mystical, poetic things can be said or nothing’, to create a space where the
ethical imagination for Davout’s encounter with the law can be inculcated. But for
this we must move ‘beyond text’. Though there is no doubt that the use of and
development of text-based resources allows for the exercise of skills that are import-
ant to the imaginative ethical development of lawyers, the exclusive emphasis on
textual resources – on languages and their manipulation – carries with it signifi-
cant dangers. Most importantly, such an exclusive focus can result in law students
and legal professionals never acquiring the skill of coming to see and to recognise
the ethical complexity of any given situation; it places at risk their ability to over-
come the limitation of the categories with which they are working – particularly
when the particular situation itself puts into question the categories that are sup-
posed to deal with it. Coping with this limit, as we have said, requires the exercise
of the ethical imagination – such an exercise enables the person to respond to the
complexity and particularity of the situation, and to come up with just and imagina-
tive ways of going forward. In this context, writers such as Martha Nussbaum
have emphasised the value of the ‘literary imagination’ and the use of literature for
these purposes.4 Indeed, many major law firms include input from the humanities
in their post-professional education in order to cultivate that sensibility – a sensibility
168 Law and art: justice, ethics and aesthetics

recognised by many as vital in the profession of the law. Our view is that while the
invocation of the literary imagination in this context is important, it is still too
heavily text-based.
We ran a project, ‘Beyond Text in Legal Education’, which tried to experiment
with ways of doing just that.5 One might say that the project was an exercise in
‘multi-sensory jurisprudence’ in the sense that it wanted to look to the possibilities
of exploring the law and legal education through and on the body rather than just
focus on cognition through and by text. The non textual is not to be understood
as meaning that we have moved from being inscribed in the text of law to being
thus inscribed somewhere else, in some other text. Here we have in mind some-
thing more than that – doing things otherwise than working with and through
texts however or wherever they are inscribed. In that sense we mean beyond clos-
ure and entrenched systems of control to a form of openness and porosity. The
centrepiece of the project was an experiential workshop, which brought together
three artists6 (a visual-based artist, a movement-based artist, and a curator) with
legal professionals, legal scholars and legal education (both tertiary and profes-
sional) policy makers from the UK and the USA. The artists were all experienced
in working with persons who have had no or little exposure to the production
and/or appreciation of visual and movement-based art. The artists led a two-day
integrated workshop, focusing on both the production and appreciation of visual
and movement-based artworks. The workshop was held, in part, in the Talbot
Rice Art Gallery (hereinafter ‘the Gallery’), which is situated across the quad from
Old College in Edinburgh (the home of the law school). The aim of the workshop
was to create a space, ‘the space to see’, wherein the skills that will enable lawyers
to develop the ethical imagination, enabling them through experiencing the vul-
nerability of the situation and allowing it to speak to them, to transform and
breathe life into the law but not destroy it.7
From the perspective of this chapter, the activities we engaged in at the work-
shop can be usefully grouped into two categories: attention and encounter. In each
case, the activities are designed to enable the development of the ethical imagin-
ation in related, but nevertheless distinct ways. In the case of the education of
attention, the focus is on the relationship between a person and the environment,
or the particular situation. In the case of the education of encounter, the emphasis
is on the relationship between persons. In both cases, the aim is to enable persons
to shed, distance, disentangle, unravel what is familiar to them, and thus what these
persons typically rely on when negotiating their relationships with the environment
and other persons. And, in both cases, the method is a mixture of both appreciating
and creating imaginative works (especially visual and movement-based arts).

Attention
In the case of attention, then, the focus is on decoupling the usual corporeal
and cognitive paths we all use to interact with our environment. Repeat experi-
ence tends to cause persons to notice certain things and respond in certain ways.
 The torch of art and the sword of law 169

Being immersed in legal environments, suffused with legal texts and legal skills,
law students and legal professionals develop a sense of what is important and valu-
able to performing their role appropriately. This immersion, however, carries
with it the danger of making us potentially less capable of appreciating the moral
complexity of situations. In other words, repeat interaction with a certain environ-
ment (e.g., a workplace, a school), and repeat performance of a certain role and
certain tasks, may have the effect of radically simplifying our moral universe and
limiting the suppleness of our moral imagination.
Among the activities employed as part of the education of attention were these:

• As participants, we were asked to choose a word that is both part of the legal
vocabulary and everyday usage, such as ‘causation’, ‘attempt’, or ‘discovery’.
Using a variety of materials (for example, a large black sheet of paper, soil,
nails, bits of plastic, scissors, gloves, and the like) we were asked to produce a
sculpture or any other kind of artwork that expressed the word we chose. (We
could not use the materials to create the letters of the word.) The exercise
made us look differently at words that, as lawyers, we often simply look
through, given their familiarity to us.
• In the Gallery, our group was asked to look at video installations, and use
string and blu-tack (a versatile pressure-sensitive adhesive) to respond, in dia-
grammatic fashion, to those installations. One of the most difficult things here
was to resist the temptation to represent, or faithfully depict some feature of
the installation (representation and depiction being one of the familiar ways
in which we negotiate our relationship to the environment). One of the groups
had to respond to an electronic game version of Osama Bin Laden’s hideout
(with matchstick to navigate around). This group was unable to resist the
temptation, and used the string to simply map the layout of the buildings
depicted in the game.8
• Three boxes of all kinds of materials (toys, odds and ends) were made avail-
able to two groups, who were instructed to make an installation in a confined
space. The trick was that we could only communicate non-verbally.
Interestingly, people who normally dominated the conversation (given their
facility with verbalising thought) receded to the background; in that respect,
the activity troubled those persons’ typical manner of relating to the environ-
ment. Another interesting feature was the difference in how quickly the two
groups agreed on a theme: one group did so very quickly, thereafter choosing
materials that represented the theme; the other group kept exploring alterna-
tive themes to the end. What became visible here, then, was how a different
group dynamic can quickly arise, leading to a certain style of interacting with
the environment.
• In another activity, participants were paired up. One person was a drawer;
the other a describer. The describer was asked to choose an artwork (which the
drawer had not previously seen). They were asked to sit back-to-back. The
describer was then asked to describe the artwork to the drawer. However, this
170 Law and art: justice, ethics and aesthetics

activity had an important twist. Both the drawer and the describer received
secret instructions. These instructions were designed to rupture a common
way of relating to the environment, namely, evaluating the product of our
creativity (the drawing) with the object on the basis of verisimilitude. These
secret instructions included, for example, an instruction to the drawer to draw
the opposite of what the describer was describing, or to draw the way the
voice of the describer sounded (rather than what the describer was describ-
ing). An example of an instruction to the describer was to describe an imagin-
ary artwork, or to describe with one’s eyes closed. In all these cases, the
instructions were very effective in problematising a form of relating to the
environment where the focus is on the accuracy of the representation rather
than, say, on the evocative quality of the expression.
• Participants were given three envelopes with instructions or materials
and asked to open each one in front of three artworks of their choice in the
gallery. The instructions included standing very close to the artwork (almost
touching it); using a magnifying glass to look at it; or facing away from the
artwork. In each case, this activity was designed to make one realise how
limited (and how standardized) we usually experience works of art. Again, the
more general idea here was to bring participants face to face with the limita-
tions of their ways of negotiating their relationship with the environment
around them.
• In perhaps the most popular exercise, participants were given a digital camera
and three envelopes with three different kinds of prompts. Participants were
given forty-five minutes to make one photograph in response to each prompt
(so fifteen minutes per prompt) and told to take those photographs outside in
the streets of Edinburgh. The prompts included coloured pieces of paper, as
well as objects like tablets, string, and SIM cards. Participants reported they
found it liberating and pleasurable, though also challenging, to observe their
surroundings more carefully than usual and many produced photos that were
only orthogonally (and thus, one might say, imaginatively) related to the
prompts (thereby once again troubling the impulse to represent).

Encounter
As noted above, the second category of activities can profitably be thought
of under the canopy of the education of encounter. The focus here is on experi-
encing relationships with others unmediated by the participant’s typical ways
of filtering an encounter with a particular person. Such forms of mediation
include various distancing strategies of text and other social and professional
rituals. In the case of legal practice, the specific target of many of these activities
was to disturb the notion that as possessors of expert knowledge, legal profes-
sionals control, and can manipulate, the relationship with a dependent client. In
other words, the activities were designed to facilitate experiences characterised by
equality and interaction rather than by control, domination, manipulation and
persuasion.
 The torch of art and the sword of law 171

Here, then, are some examples (again, only a selection) of the activities designed
to further the education of encounter:

• Participants were matched in pairs. They were asked to stand facing one
another and simultaneously draw the body of their partner on a screen of
transparent Perspex which was placed between all the pairs. Participants
noted that it was not easy to keep up with the body of their partner, for they
too were moving in order to draw. The outline produced by the felt pens were
erratic; the lines were wobbly, some of the features (such as the nose, the eyes
and the mouth) were overlapping, and the proportions were all out of whack.
The aim here, however, was not the realisation of technical failure, but rather
the enabling of an experience in which persons were confronted with each
other’s particular physicality. Nevertheless, the technical failure was also
important, for it helped reveal – via the mediation of artistic creation – just
how our forms of understanding another person, and certainly forms of
expressing that understanding, were inevitably and necessarily limited.
• Participants were matched in pairs, and asked to stand next to each other
with a large piece of white paper before them. One of us held a piece of char-
coal, and we were asked to allow the other person to draw on the paper by
controlling the charcoal-holder’s hand. As with the previous activities,
encountering another human being’s body in this fashion required trust,
equality and interaction, and a willingness not to control outcomes. This will-
ingness not to control outcomes was important, for it was precisely in mutual
vulnerability that, we found, we came closest to encountering each other’s
particularity.
• Participants were asked to form groups of three. Two group members stood
opposite each other, one of whom was asked to lead, while the other mirrored
those moments. At any moment, the person mirroring could take over the
lead, and the other person had to follow. The third person observed, but
could also tap one of the others on the shoulder, which enabled the observer
to swap in for one of those moving. It was fascinating to see how differently
people moved. Some made grand movements with their whole body while
others made very subtle movements with their fingers. Indeed, some of us had
great difficulty in mirroring the movements made by others. Once again, this
activity enabled us all to experience each other as distinct human beings with
distinct bodies.
• The group as a whole was asked to move in a large space, first as we wished,
then in response to instructions. For example, we were asked to become grad-
ually more aware of where other group members were in the room; or, more
confrontationally, one half of the group was told to do everything they could
do to make contact (e.g., shake hands) with others, while the other half, in
turn, was directed to avoid contact. This activity helped to loosen the hold of
the usual scripts we rely on in everyday and professional interaction.
• The group was divided into three smaller groups. Each group of approxi-
mately five to six persons was asked to compose a dance and each received
172 Law and art: justice, ethics and aesthetics

different instructions. One group had no rules at all. The second received
very complex rules. The third received a picture. Interestingly, the group with
no instructions composed a dance that gradually involved all the members of
the other groups (they began in a circle, and repeated a simple pattern, and
every so often gestured towards an outside observer to join in).

Law, vulnerability and aesthetic perception

An important component of this workshop was the variety of avenues for reflec-
tion on the activities engaged in. Large pieces of paper were stuck on to the wall,
and pens and crayons were available for participants to make comments (anony-
mous if they wished). Audio recorders were distributed for participants to record
their reflections. There were also group discussions and other forms of non-text
based communal reflection, including communal drawings and dances.
Nevertheless, what was primary, and the key to the workshop, was that all par-
ticipants had to involve themselves, physically, in the activities. Participation and
involvement came first, and reflection followed. In this respect, the education of
attention and encounter assisted persons in becoming and remaining vulnerable,
only occasionally surfacing to make sense of the activities and their experiences.
One vital aspect to notice here is that vulnerability is both passive and active.
It is passive in that it requires a person to overcome the tendency to impose a
certain scheme of intelligibility or a familiar form of negotiating the relationship
with what or who is encountered; in that sense, it resembles the ways in which
many artists have expressed the experience of aesthetic perception, e.g., consider
the following from Paul Klee:

In a forest, I have felt many times over that it was not I who looked at the
forest. Some days I felt that the trees were looking at me, were speaking to
me . . . I was there, listening . . . I think that the painter must be penetrated
by the universe and not want to penetrate it . . . I expect to be inwardly
submerged, buried.9

An important part, then, of the process of aesthetic perception – and per-

haps also the process of cultivating the ethical imagination – consists in being
vulnerable; indeed, in exercising the courage to be vulnerable. This echoes state-
ments made by some theorists of the ethical imagination, who have spoken of the
importance of suspending a ‘scientific mode of seeing’, or of ‘aboutness’, or calcu-
lation or measurement, and thus learning to look with love.10 Here, both the look
of the artist and that of the person cultivating their ethical imagination is a look of
maximal responsiveness, of the dissolving of the self to let the world of the other,
and otherness, flourish. This maximal responsiveness to the other has, of course,
been recognised by many as a vital aspect of the ethical encounter (especially in
the work of Emmanuel Levinas and Martin Buber). In Buber’s case, for example,
it was precisely the ability to resist the ‘I-It’ relation – which was a scientific
 The torch of art and the sword of law 173

relation that imposed or assumed the other to have certain properties or that con-
textualised (or generalised) the other in a certain way – and thus the ability to
enter and dwell in the ‘I-You’ relation.11 This passive aspect of vulnerability, then,
is also a willingness to be transformed by the other. Mikhail Bakhtin’s criticism of
what he calls the ‘monological’ view is another neat illustration of this – and
equally another neat example of the intersection between ethics and aesthetics.
‘Within a monological approach (in its extreme pure form)’, said Bakhtin in his
study of Dostoyevsky’s poetics, ‘another person remains wholly and merely an
object of consciousness, and not another consciousness. No response is expected
from it that could change anything in the world of my consciousness. Monologue
is finalised and deaf to the other’s response, does not expect it and does not
acknowledge it in any force.’12 On the monological view, then, anything outside,
and unfamiliar, is immediately assimilated and crushed under what one already
finds familiar. As Levinas might have said, the other, and otherness, is extinguished
by the imperialism of the same. In the dialogical view, on the other hand, we sus-
pend ourselves – our fantasies, as Murdoch would have called them – and allow
ourselves to be submerged and immersed in difference. And this immersion and
concentration on our particularity allows us to see our universal identity, our equal
dignity (see our discussion of Davout’s encounter with Pierre above).
As important as it is, the passive aspect of vulnerability needs to be supple-
mented by the active one. Here, again, we witness an intersection between ethics
and aesthetics. Take, for instance, Alberto Giacometti’s statement that ‘What
interests me in all paintings is resemblance – that is, what is resemblance for me:
something which makes me discover more of the world.’13 We referred above to
resemblance, and spoke of how we felt it was important to trouble the tendency to
negotiate our relationship with the environment on the basis of how well we can
represent it, of how our representations can attain the status of, say, a truthful
copy. But Giacometti here points to another understanding of resemblance, one
that, as he says, ‘makes me discover more of the world’. In other words, properly
understood – as we can when we pay attention to aesthetic perception – the pur-
suit of resemblance is but a method for coming face to face with one’s limitations,
and thus also the infinite wonder of the world. This experience of one’s own limi-
tations is all the more powerful if one pursues resemblance honestly and actively,
with all of one’s passion. One can see this at work in Giacometti’s sculptures.
Recall his incredibly thin figures: Giacometti, it seems, could not help but keep
going until he pushed and pushed his vision, each time as far as he could go. He is
said to have reported, however, that he was not trying to express anything, but
actually trying to depict, as precisely as he could, the persons he sculpted. He was
trying – actively – to encounter them, to see them. However, he was also perpetu-
ally dissatisfied, recognising that the persons he attempted to sculpt were infinitely
complex, a source of infinite wonder, and infinite sculptures. In this sense, then,
he encapsulates the active aspect of vulnerability: the courage to see, and keep
looking, despite knowing that it is the all too human lot that the world is always
unfinished, and unfinishable, for us.
174 Law and art: justice, ethics and aesthetics

The inspiration of the encounter

We finish with another image that interrogates the categories we grouped our
activities under. Raimond Gaita14 (2000) tells a story of his encounter with a nun
and the quality of her encounter with the inmates of a mental hospital wherein he
was working as a student. Gaita says that in this home, the inmates were treated
by a majority of the staff as little better than animals. He and some of the doctors,
he goes on, tried to be better and to treat them as humans. And though he thinks,
and hopes, they succeeded in dealing with the inmates humanely, there was a nun
there whose treatment and dealing with the patients put even them to shame. Her
relations with them were of a different order. She encountered them in a way in
which they, for all their good intentions, were not able.
The nun might have said that she did this because Jesus commands that we
treat everyone equally and well. But that was not the point, Gaita says. We can all
accept such a rule, from Jesus or not, but you would still not be like that nun.
Simone Weil graphically describes and explains just how different this is when she
claims that talk of what you are entitled to under rules and rights cannot get at
what hurts you (Weil 1990). The ‘desperate cry of a young girl forced into a
brothel’ is not the cry for higher wages. Offering to negotiate a better deal is not
so much as ignoring that cry but rather not hearing it or seeing it. Law cannot
hear the cry – it misrecognises it as the demand for rights and entitlements. The
nun saw the patients and the pain and she acted pushed on by that. Gaita and the
doctors saw the rights and the entitlements and they acted accordingly. Weil says

Justice consists in seeing that no hurt is done to men. Whenever a man cries
inwardly: ‘Why am I being hurt?’ harm is being done to him. He is often
mistaken when he tries to define that harm, and why and by whom it is being
inflicted on him. But the cry itself is infallible.
The other cry, which we hear so often: ‘Why has someone else got more
than I have?’ refers to rights. We must learn to distinguish between the two
cries and do all that is possible, as gently as possible, to hush the second one
with the help of a code of justice, regular tribunals, and the police. Minds
capable of solving problems of this kind can be formed in a law school.15

This is not to denigrate law. As Weil put it

Words of the middle region, such as right, democracy, person, are valid in their
own region, which is that of ordinary institutions. But for the sustaining inspir-
ation of which all institutions are, as it were, the projection, a different
language is needed.16

Gaita in talking of the nun says that a Kantian-inclined theorist would say that
one cannot build a morality or law on that nun’s love. And that is right. But why
would one want to have that structure of law and society, a structure to help the
poor and suffering, unless you had the imagination to see them in their suffering
 The torch of art and the sword of law 175

and pain in the first place? The nun does, and she tempers the misrecognition
(violence) of the law by making what the law makes invisible, visible, and thereby
gives us reason to have law and law schools. One can put it in this way. How can
we begin to construct the connectedness and stability of law unless we recognise
that people are hurt and in need; unless our response to their pain already con-
nects us? It is that which drives us to devise institutions that will help and nurture
them. But that is not something that we do once and for all. It must be a continu-
ing process otherwise we will sit in the comfort of our present and not hear that cry
but drown it out. The law will atrophy and we will be blind and deaf to the poor
and hurt. Law degenerates when we do not hear the cry from the outside and
respond to it. People who do so, the nuns of this world, are for Gaita ‘secular
saints’, they shine a light on a world we would prefer to forget. Attacks on Mother
Teresa, for example, which claim that if she did anything at all it was merely indi-
vidual acts of charity – something that did not get at the real problem since it did
not examine what were the root causes of world poverty and act politically to
prevent and cure them – spectacularly miss the point. It is obviously true that we
need to tackle poverty structurally and politically, but people need to recognise
that there is poverty and that people are poor or there will be no incentive (or
indeed point) in devising a cure. We have to see someone as poor and reach out to
them, at one in our vulnerability, for us to begin to try and work out systems of
preventing poverty. People do not often say they do not want to help the poor;
they deny there are poor – they are invisible to them. Unless we do this, we will
walk by on the other side of the street and deny the problem and so do not think
of the cure. We need both the individual act and the system. One might say this is
why such people are necessary – they saw it and made us see it.17
Again an image from Weil is appropriate.18 She answers the question ‘why
should we struggle for justice’ with a story. Well-fed people, she says, do not stand
pressed outside the windows of restaurants looking at the food therein. Only the
hungry stand there desperate. So also will we only work for justice if we hunger
and thirst for it. We, who are well fed and not in pain, will only understand hunger
and thirst if we have the grace to allow the injustice in the cry of pain, wherever it
comes from, lacerate our soul because of its existence.

Conclusion
Here, then, we have the space to see: being vulnerable, in both passive and active
aspects. That space to see, however, is not limited to aesthetic and ethical experi-
ence. It is also there, in the heart of law: in how we learn it, and how we come to
apply it. Our sensuous living encounter in the world and the workshop inter-
actions allow the possibility of learning and allow ethics to enter the law and
transform it. We learn to change the meaning or the very vocabulary of the law,
‘through the body’. We hope to have illustrated, at least by way of a glimpse, at
how involvement in certain kinds of activities – in our case, involvement in both
the appreciation and creation of imaginative works, based primarily on visual and
movement arts – can assist persons in experiencing precisely both the passive and
176 Law and art: justice, ethics and aesthetics

aspects of vulnerability that we need to experience in order to breathe life into law,
to keep it human.
Lawyers cannot all be like the nun pace Weil nor should they be, but minds
‘formed in the Law Schools’ can be helped to develop and exercise something of
that ethical imagination in their daily business of applying the law and our project
was a way of attempting this. The challenge is to keep making room for it, keep
recognising it, and thereby to keep law from its own tendency to create a perfect
world of forms where nothing ever changes. It is precisely in the remainder, in the
imperfection, that the mark of the human lies and it is that which we must con-
stantly work to regenerate, to revive. Thinking of the intersection between ethics
and aesthetics is, we think, a vital aspect of this constant work.

Notes
∗ School of Law, Edinburgh University and Institut des Sciences Sociales,Université de
Lausanne. We would like to thank Oren Ben-Dor for his perceptive comments.
1 M. Detmold, ‘Law as Practical Reason’, 48 (1989), Cambridge Law Journal, 436–471,
at 457.
2 [1972] A.C. 342.
3 L. Tolstoy, War and Peace, R. Edmonds (trans.), Harmondsworth: Penguin, 1978,
p. 1141.
4 See M. Nussbaum, ‘“Finely Aware and Richly Responsible”: Moral Attention and the
Moral Task of Literature’, The Journal of Philosophy, (1985) 516–529, and M. Nussbaum,
Love’s Knowledge: Essays on Philosophy and Literature, Oxford: Oxford University Press,
1992.
5 The project was generously funded by the Arts and Humanities Research Council
(AHRC) in the United Kingdom. For more information, visit www.law.ed.ac.uk/
beyondtext.
6 The three artists were: Keren Ben-Dor, Zoë Fothergill and Alicja Rogalska.
7 See the film of the project at mms://law-srv0.law.ed.ac.uk/external/beyondtext.wmv.
8 ‘The House of Osama Bin Laden’, 2002, by Ben Langlands and Nikki Bell. This instal-
lation, as well as some others referred to in these activities, was part of an exhibition
hosted at the time of the workshop by the Talbot Rice Gallery.
9 Klee quoted in M. Merleau-Ponty, The Primacy of Perception, Illinois, Northwestern
University Press, 1964, p. 167.
10 See especially I. Murdoch, The Sovereignty of Good, London: Routledge, 1970.
11 See M. Buber, I and Thou, W. Kaufmann (trans.), New York: Simon and Schuster,
1970.
12 M. Bakhtin, Problems of Dostoyevsky’s Poetics, C. Emerson (trans.), Minneapolis: University
of Minnesota Press, 1984, pp. 292–3.
13 M. Merleau-Ponty, The Primacy of Perception, op cit., p. 165.
14 R. Gaita, A Common Humanity: Thinking about Love and Truth and Justice, London: Routledge,
2000.
15 S. Weil, ‘On Human Personality’, reproduced in D. McLellan (ed.), Utopian Pessimist:
The Life and Thought of Simone Weil, New York: Poseidon Press, 1990, p. 286.
16 Ibid., p. 288.
17 For example, consider the positive effect of Princess Diana’s public holding of an HIV
positive patient.
18 S. Weil, ‘Are We Struggling for Justice?’ in E. Sprinsted, (ed.), Simone Weil, New York:
Orbis Books, 1998.
Chapter 10

The play of terror

Ian Ward

Terrorism has become fashionable again. It entrances us; as it always has.1 We are
enchanted by its aesthetic, by its imagery and its drama. Few images are more
deeply engraved on our generational consciousness, perhaps, than that of
the burning Twin Towers in New York.2 Of course, in the age of mass global tele-
communication raising images is rather easier, even if, as Jean Baudrillard and
Ariel Dorman have both argued, they conjure an experience that remains in part
‘virtual’.3 But history confirms that the raising of such images has always been
viewed, by terrorist and counter-terrorist alike, as a vital strategic weapon. In what
is commonly regarded as being one of the first modern counter-terrorist polemics,
his Reflections on the Revolution in France, Edmund Burke raised a series of such images,
most famously of revolutionaries storming through the Palace of Versailles look-
ing to assault, rape, even murder, Marie Antoinette. Terrorists like to portray
themselves as martyrs. Counter-terrorists spin images of demons. It has always
been thus.4 The adage ‘one man’s terrorist is another man’s freedom fighter’
remains discomforting precisely because it is true. The discourse of terrorism is
written ironically.
And it is written dramatically too. The more particular engagement of the
dramatist with the experience of terror has just as long a history.5 As Nietzsche
originally and then more recently Terry Eagleton have noted it finds expression in
classical Athenian drama, perhaps most obviously in Euripides The Women of Troy
and The Bacchae; plays to which we shall return in due course.6 And it finds expres-
sion in renaissance drama too, in for example Thomas Kyd’s The Spanish Tragedy
or Shakespeare’s Macbeth.7 The function of the former, as a vehicle for governing
through terror has found a sharp contemporary expression in Orhan Pamuk’s
novel, Snow; a central theme of which is the mutually sustaining relation of state
and non-state terrorism.8 Composed in the weeks that followed the uncovering of
the Gunpowder Plot in November 1605, Macbeth was written not so much to calm
public sensibilities, but to impress the extent of the danger which the imagined
terrorist represented to the real audience. The same themes, unsurprisingly, recur
in more modern and contemporary contributions to the canon of terrorist drama;
in the plays of Brecht and Genet, Rame and Fo, Brenton and Beckett, to name but
a few.9
178 Law and art: justice, ethics and aesthetics

The relation between terror and theatre is then a close one.10 ‘I had a role to
play’, the iconic all-American heiress turned terrorist Patty Hearst remarked
during her interrogation, ‘and I knew my part well’.11 Anthony Kubiak observes:

I would . . . suggest that while terrorism is not theatre, terrorism’s affiliation

with political coercion as performance is a history whose first impulse is a
terror that is theatre’s moment, a terror that is so basic to human life that it
remains largely invisible except as theatre.12

The common affinity with spectacle and enchantment binds terrorist and
dramatist together. So much was noted by Harold Pinter in his excoriating cri-
tique of the ‘war on terror’ articulated in his 2005 Nobel Acceptance Speech. But
there is, as Pinter noted, a critical inversion. Where the politician pretends to
‘truth’ in order to weave a ‘tapestry of lies’, the dramatist seeks recourse to the
literary imagination in order to cut through the deception, and to try to retrieve
our ‘moral sensibility’.13 David Hare has made precisely the same point. In ‘an age
where politics is marked by mendacity’, the theatre is the one ‘place where society
can go to take a sober account of itself, and see itself more truly’.14 Providing this
reflective space is, in short, the dramatist’s responsibility.
It is hardly surprising that the events of 9/11 and the subsequent ‘war on
terror’ have stimulated such dramatic reflections on the experience of terrorism.15
What is perhaps rather more remarkable is the extent to which these dramatic
reflections have taken a distinctive form, of what Michael Billington terms ‘fac-
tual’ theatre.16 A more particular species of ‘factual’ theatre is ‘verbatim’ theatre.
In fact verbatim theatre predates 9/11, finding early expressions in John
McGrath and Richard Norton-Taylor’s Half the Picture, a reconstruction of the
Scott Inquiry into the sale of arms to Iraq, written in 1993, and then again Norton-
Taylor’s The Colour of Justice, written six years later, the subject of which was the
Macpherson Inquiry into the Metropolitan Police’s handling of the murder of
Stephen Lawrence.17 But post-9/11, the strength of verbatim drama has become
conspicuous.
The aspiration of verbatim theatre is, moreover, inherently jurisprudential;
presenting before its audience a series of verbatim statements made by significant
actors in real-life experiences. The theatre becomes, more patently than ever, a
courtroom; just as the audience becomes the jury. For these reasons, it is likewise
supposed that verbatim drama reduces the creative impact of the dramatist. Of
course, the role of the dramatist can never be completely excised. At the very least
they have the power to control which verbatim statements are presented, and in
what context and which order. In this, the role of the verbatim dramatist again
assumes an immediately jurisprudential familiarity. The verbatim dramatist, like
the High Court Judge, is the gatekeeper of admissible evidence; tasked with a
responsibility which is both literary and ethical to reach judgements and make
decisions. Moreover, the purity of verbatim theatre is further compromised, in the
eyes of some at least, by the fact that some exponents admit a degree of literary
 The play of terror 179

and imaginative intervention. Hare’s contribution to the post-9/11 verbatim

genre, Stuff Happens, which enjoyed a high-profile production at the National
Theatre in 2004, has been criticised for this reason.18 Hare, however, is unapolo-
getic, arguing that such interventions are inevitable. The ‘process’ of presenting
verbatim drama, he suggests is ‘akin to sculpture. You find the driftwood on the
beach, but you carve the wood and paint it to make it art.’19
Hare has long enjoyed a reputation as one of the most strident proponents of
an aggressively political species of late twentieth and early twenty-first century
drama, repeatedly confirming a belief that the theatre assumes a responsibility
which is innately jurisprudential.20 Theatre, according to Hare is the ‘best court
society has’, whilst ‘Judgement’ is ‘the heart of theatre’.21 Such a responsibility
found a compelling expression in the ‘Hare Trilogy’, Racing Demons, Murmuring
Judges and Absence of War; an epic dramatic narrative of institutional complacency
and incapacity in British public life.22 And it is the same complacency, spiced by a
measure of patent contempt, which underpins Stuff Happens. The title of Hare’s
play alludes to one particularly notorious statement made by US Secretary of
State Donald Rumsfeld when challenged by journalists as to the extent of collat-
eral damage inflicted by looters following the bombing raid on Baghdad. It was,
as Norman Mailer likewise noted, a response of peculiar ignorance as well as cal-
lousness.23 Hare is certainly keen to impress both. But there is more too. There is,
for one, a complementary theme of self-delusion, a paralyzing inability to distin-
guish reality from the fantasy which President Bush and his advisers strove to
create in the weeks and months that followed 9/11. Theirs, as the President’s chief
speech writer advises his team, as they sit down to compose the 2002 State of the
Union address, is a ‘plastic, teachable moment’; one which they can bend and
shape as they will.24 Hare’s President Bush is fully appraised of his particular
responsibility, to ‘rack up the rhetoric’, whilst his Vice-President is positively
Orwellian in his appreciation of the art of political ‘misspeak’.25
Such rhetorical power is not, of course, newly discovered. Classical Greek phil-
osophers, including perhaps most obviously Aristotle, wrote copiously about the
power of rhetoric, and the responsibilities which the power imported. And Greek
tragedians such as Euripides were just as acutely aware of the tragedy which feeds
on this critical inability to distinguish fact and fantasy. It is for this very reason that
Hare has situated his play precisely in the tradition of classical and renaissance
tragedy.26 The self-delusion reaches an epitome in Stuff Happens when President
Bush articulates his deeper, supremely delusional, belief that he went to war
because God ‘wants me to do it’.27 As he had told America in the weeks following
9/11, the strike on the Twin Towers was one of ‘God’s signs’, a ‘calling’ to ‘cru-
sade’ for a ‘chosen’ people.28 Hare closes his play with Bush’s notorious, and well-
documented, comment to a startled Palestinian Premier, Mahmoud Abbas, that
‘God told me to strike Al-Qaida and I struck them, and then he instructed me to
strike Saddam, which I did.’29
And with the zeal, indeed bred of the zeal, is the complacency. The blind faith
feeds the casual disregard for the ‘bad guys’, which includes terrorists and terrorist
180 Law and art: justice, ethics and aesthetics

sympathisers; and lawyers. Within weeks of 9/11, President Bush had let it be
known that he would not be deterred by the cautions of White House legal aides.
‘I don’t care what the international lawyer says, we are going to kick some ass’,
the President informed his people. The new New World Order, he confirmed
time and again, was one ‘without rules’.30 In time, ass-kicking was transmuted
into a marginally more respectable jurisprudence of ‘exceptionalism’.31 But the
sentiment remained the same. There would, as Under-Secretary of Defence Frith
confirmed, be no more ‘siding with the arseholes’.32
It has long been remarked that the terrorist and the counter-terrorist have
much in common. They are, as Joseph Conrad observed in his novel The Secret
Agent, out of the ‘same basket’.33 Contempt for principles of law and justice is just
one of these commonalities. And if the counter-terrorist shares the same disregard
for international law and order so blatantly displayed by the terrorist it is small
wonder if the listening audience does too. We should be troubled by this con-
tempt, hugely. Ass-kicking politicians do not, in general, make for a happy world.
There is much to be lost; as Harold Koh has observed, musing on quite why so
many American lawyers seemed to be prepared to concede that ‘the destruction
of four planes and three buildings has taken us back to a state of nature in which
there are no laws or rules’.34 And it is in these moments, of what Hare in his essay
The Second Intifada terms ‘lethal unreason and opportunism’, when the need for an
alternative media, such as drama, becomes all the more compelling.35 Theatre can
‘bear witness’, as Hare puts it, to an injustice and a horror and a stupidity which
we are not otherwise encouraged to contemplate.36
The same role is assumed in a rather different quasi-verbatim drama, Deborah
Brevoort’s, The Women of Lockerbie. Brevoort’s play engages one of the critical pre-
quels to 9/11, the destruction of PanAm 103 above the Scottish village of Lockerbie
in 1988. The genius in Brevoort’s dramatic intervention lies in the reworking of
Euripides’s original depictions of violence and female desolation in his Women of
Troy.37 And the jurisprudential challenge is familiar; for, again, the reach and per-
haps the relevance of the law appears to be diminished. Whilst politicians prattle
on the television, and judges muse over the intricacies of international criminal
law, entombed in their Dutch courtroom, real lives are being destroyed; not just
the lives lost when the plane crashed out of the sky, but those which were slowly
devastated in the days, months and years that followed. The grief of Brevoort’s
protagonist Madeleine, whose son was lost in the attack, is one she ‘can’t put
aside’.38 Suddenly what is decided in Washington or The Hague seems to matter
rather less.39
In the months that followed the bombing, the ‘women’ of Lockerbie estab-
lished a ‘laundry project’ for the purpose of washing the 11,000 articles of clothing
salvaged from the wreckage. ‘We want’, they attest, ‘to give love to those who have
suffered’.40 As Olive, one of the women, observes, ‘When evil comes into the world
it is the job of the witness to turn it to love’.41 It is, very obviously, the kind of ritual
of lamentation with which Euripides’s audiences would have been familiar; one
designed to nurture a sense of common suffering and empathy. It does not of itself
 The play of terror 181

heal Madeleine. But, unlike proceedings in The Hague, it is inclusive. It invites

her anguish and her participation, and her voice. It is for her. ‘Grief’, as Olive
confirms, ‘likes to talk’.42 ‘Talk to us. Please’, she begs of Madeleine, ‘Tell us your
story.’43 This again, is what drama is for; to excavate the deeper emotions and to
nurture their common resonance. The voice of Euripides’s Hecuba, articulating
the desolation of the women of Troy, certainly resonates: ‘I mourn for my dead
world, my burning town/My sons, my husband, gone, all gone! . . . How must I
deal with the grief? . . . My heart would burst/My sick head beats and burns/Till
passion pleads to ease the pain.’44
As Martha Nussbaum, commenting on the conjunction of tragedy and com-
passion in the ‘fabric of our lives’, and on the enduring resonance of Euripides
after 9/11, affirms:

As Euripides knew, terror has this good thing about it: it makes us sit up and
take notice. It is not the endpoint of moral development, and it may be a trap,
hooking our imaginations on drama rather than leading us towards a new
attention to the daily. But terror can be at least the beginning of moral
progress. Tragic dramas can’t precisely teach anything new, since they will be
moving only to people who at some level already understand how bad these
predicaments are. But they can awaken the sleepers, reminding them of
human realities they are neglecting in their daily political lives. The experi-
ence of terror and grief for our towers might be just that, an experience of
terror and grief for our towers . . . But if we cultivate a culture of critical com-
passion, such an event may awaken a larger sense of the humanity of suffer-
ing, a patriotism constrained by respect for human dignity and by a vivid
sense of the real losses and needs of others.45

Alongside Brevoort’s Women of Lockerbie and Hare’s Stuff Happens can be placed
a number of other post-9/11 dramatic interventions. Amongst those which can be
termed ‘factual’ or verbatim are Richard Norton-Taylor’s Justifying War, adapted
from the 2003 Hutton Report into the apparent suicide of the government scien-
tist David Kelly, and also Robin Soans’s Talking to Terrorists.46 At a slight remove,
in terms of dramatic form as well as subject matter is Hare’s Via Doloroso.47
But perhaps the most powerful contribution is one of the most rigorously verba-
tim, Victoria Brittain and Gillian Slovo’s Guantanamo. The aesthetic dimension of
Guantanamo has been well-documented; the hideous ‘spectrum of unsettling
images’, of orange jump-suits and shackles, goggles, headphones and surgical masks,
along with still more disturbing images of crouching detainees held in cages.48 And
all, of course, cherished equally by terrorist and counter-terrorist polemicist.49
Pinter noted as much in his Nobel Speech.50 The impotence of law is laid bare.
Guantanamo is a ‘law-free zone’.51 Inferences abound, allusions to gulags and
concentration camps, to Stalin and Kafka.52 Metaphors are many and various.
US military and State Department officials could be found talking about the need
to conceptualise a ‘vanishing point’ of the law, or to locate a ‘legal equivalent of
182 Law and art: justice, ethics and aesthetics

outer space’.53 Seeking recourse to a slightly different astrophysical allusion, Lord

Steyn referred to Guantanamo as a ‘black hole’, an ‘utterly indefensible’ affront to
the very ideas which are supposed to define Anglo-American jurisprudence, due
process, the rule of law, human rights.54
Framed by Lord Steyn’s critique, the high politics of Guantanamo is provided by
the usual suspects, various lawyers and bureaucrats, foreign ministers and secre-
taries of state. It is this narrative which explores the bigger questions, the careless
pursuit of a ‘war on terror’ that so easily takes the appearance of being a ‘war on
Islam’, the sheer brute idiocy of alienating ‘one billion Muslims around the world’,
the real danger which the abrogation of legal principle presents to all of us, and
the increasingly uneasy sense that when it comes to dealing with ‘others’ there is
indeed little ‘difference’ between ‘Saddam Hussein and Bush and Blair’.55 But
whereas a play such as Hare’s Stuff Happens remained focussed primarily on this
higher politics, the real heart of Guantanamo, like Brevoort’s Women of Lockerbie, lies
in the experience of personal suffering and private injustice.
The immediate focus of Guantanamo is the fate of five British detainees, three of
whom, the so-called ‘Tipton Three’, attracted particular media interest when it
became apparent that they had been employed in an electrical store near
Birmingham at the time when it was suggested by US authorities that they had
been attending an Al-Qaida training camp.56 It is the fate of these five detainees
which dominates, their personal despair, their sense of loss, the agony of their
families, their hitherto intensely ordinary lives and experiences; ‘hardly the stuff of
terrorism’ as one of their campaigners observes, hardly the stuff of ‘trained vicious
killers’.57 In the opening act of the play, the father of one of the detainees recounts
how his son was seized in his house in Pakistan, ‘bundled up’ and thrown into the
boot of a car in front of his child.58 The emotional heart of the play can be found
in their correspondence, their shared sense of bewilderment and despair.59 It is a
vital strategy; for whilst few in the audience are likely to have been kidnapped and
bundled into cars, or tortured into making false confessions, many are likely to
have experienced the peculiar love, and attendant anxieties, shared by parents
and their children.
Discussing her clients, one defence lawyer observes:

The boys are three young British lads who are like all our children – they’re
people who are very familiar, very easy to feel immediately comfortable with.
And yet the story they tell us is one of terrible stark medieval horror. It’s like
going back in time to something unimaginable from beginning to end of what
they say . . . I think perhaps we’re very calloused. We read, we watch, we hear
about atrocities – we know what man’s inhumanity to man consists of, we
know all that, but we don’t sufficiently register it. We don’t have the capacity
to take it in and react in the way we should as human beings. But when you
have in front of you men you’re getting to know and they’re talking about it,
not because you’re interrogating them, but it’s tumbling out and they’re
reminding each other, they’re telling things that they haven’t told anyone.
 The play of terror 183

Maybe it’s the testimony of every survivor from a concentration camp or a

massacre . . .
. . . It’s a complete ordinariness of where they are now, suddenly, from
something so extraordinary.60

Guantanamo is about the relation of the ordinary and the extraordinary. Like
any drama, it humanizes the experience of those whose experiences could not
otherwise be readily comprehended.61 It nurtures the visceral; the horror, the
compassion, the anger. It certainly makes Tom Clark angry. Tom lost his sister in
the Twin Towers.62 And he readily acknowledges his struggle with hatred; a hatred
that is directed, increasingly, not just at the terrorists, but at those who pretend to
justify their reciprocal injustices as a proportionate response:

I’m furious at the length of detention of these people, furious because those
who are innocent have lost three years of their life, much as I lost, as I’ve been
living in a sort of private hell since my sister was murdered, and although at
least I’ve been able to recover and get over it and deal with, and still sort of
have my life, they’ve had theirs taken away. And that’s . . . and they’ll never
get it back and I’d buy them a drink if I met them, you know, if in truth they
had done nothing wrong. I can’t imagine a worse thing for any person, they
deserve all our sympathies and all of our efforts to sort of make sure they do
actually get the justice they deserve.63

This is what theatre can do. It demands reflection, judgement and responsibil-
ity. At the same time as it brings posturing politicians to what Lord Steyn terms
the ‘bar of international opinion’, it raises voices, those stories which, as Ariel
Dorfman suggests, might otherwise remain lying at the ‘bottom of the rivers of
humanity’.64 Drama retains that critical ‘ability to connect personal dilemmas
with the wider world’. It retains ‘the capacity to haunt’ us, to shake us from our
complacencies.65 It makes injustice stark. It describes the failure of justice, and it
makes us, the audience, complicit in this failure.66
It is perhaps this final point which matters most, for it engages once again a
rather larger ethical dimension. Terrorism is commonly acclaimed, by terrorist
and counter-terrorist, as representing a peculiarly intense and peculiarly heinous
threat to our political community; one that might justify extra-legal or ‘excep-
tional’ responses. In truth it rarely is and it rarely does. But what terrorism does do
is provide a litmus test. It tests, for one, the rigour of the laws which are supposed
to secure the integrity of the liberal democratic state within which we live. And just
as importantly, it tests the moral resolve of the citizens who live in it. If there is a
failure of jurisprudential integrity in our political community, a complacent
acceptance of injustice, it is a responsibility that lies with each of us. Literature
more broadly and drama more closely have a particular capacity for raising this
responsibility, for making us think rather more deeply not merely about terrorism
but, more importantly, about our responses to terrorism.
184 Law and art: justice, ethics and aesthetics

Notes
1 See J. Orr, ‘Terrorism as Social Drama and Dramatic Form’, in J. Orr and D. Klaic
(eds.), Terrorism and Modern Drama, Edinburgh: Edinburgh University Press, 1990, p. 49,
referring to the ‘theatre of paradox’ which the enchantment creates, a moment of
simultaneous attraction and repulsion.
2 See Norman Mailer’s observation, that ‘9/11 is one of those events that will never fade
out of our history, for it was not only a cataclysmic disaster but a symbol, gargantuan
and mysterious, of we know not what, an obsession that will return through decades to
come’. In his Why are we at war? New York: Random House, 2003, at p. 4.
3 See J. Baudrillard, The Spirit of Terrorism, London: Verso, 2003, pp. 4–5, 73–4, and also
A. Dorfman, Other Septembers, Many Americas: Selected Provocations 1980–2004, London:
Pluto Press, 2004, pp. 5–6.
4 See variously, Dorfman, Other Septembers, op cit. pp. 57–9.
5 See D. Gerould, ‘Terror, the Modern State and the Dramatic Imagination’, in Orr and
Klaic, Terrorism and Modern Drama, pp. 15–16.
6 For discussions of terrorism in classical drama, and more particularly in Euripides, see
A. Kubiak, Stages of Terror: Terrorism, Ideology and Coercion as Theatre History, Bloomington:
Indiana University Press, 1991, pp. 26–47 and T. Eagleton, Holy Terror, Oxford: Oxford
University Press, 2005, pp. 5–27.
7 For a broader discussion of terrorism in English renaissance drama, see Kubiak, Stages,
pp. 60–71, and also Gerould, ‘Terror’, pp. 16–25.
8 For a discussion of Pamuk’s novel, and the related themes of public and private terror,
see I. Ward, ‘The Culture of Enlargement’, Columbia Journal of European Law 2005/6,
vol. 12, pp. 222–34.
9 See Kubiak, Stages, op cit., pp. 123–5 and 134–9, Orr, ‘Terrorism’, op cit., pp. 55–9, and
also M. Dahl, ‘State Terror and Dramatic Countermeasures’ and also R. Boon, ‘Politics
and Terror in the Plays of Howard Brenton’, both in Orr and Klaic, Terrorism and
Modern Drama, op cit. discussing more closely the work of Dario Fo and Howard Brenton
at pp. 113–16 and pp. 138–50 respectively.
10 Orr, ‘Terrorism’, op cit., pp. 54–5.
11 Quoted in J. Martin, ‘The Fictional Terrorist’, Partisan Review, 1988, vol. 51, at p. 75.
12 Kubiak, Stages, op cit., p. 2. The emphasis is in the original. For a similar sentiment, see
also p. 158, concluding ‘we have also come to live in terror, as every moment of “real
life” seems to hold within itself the absolute threat of catastrophe in the promise of
terror’s spectacular return’.
13 H. Pinter, Nobel Prize for Literature, Acceptance Speech 2005, published in The Guardian,
8 December 2005, at pp. 9–13.
14 Quoted in R. Boon, About Hare: the playwright and the work, London: Faber and Faber,
2003, p. 111.
15 See M. Billington, State of the Nation: British Theatre Since 1945, London: Faber and
Faber, 2007, at 384 suggesting that the ‘war’ on terror ‘reactivated political theatre’
in Britain.
16 Something which, he suggests, became a defining feature of British theatre in the ‘Blair
years’. See, ibid., pp. 384–5, 388.
17 See D. Hare, Obedience, Struggle and Revolt, London: Faber and Faber, 2005, pp. 76–7,
discussing the particular impact of The Colour of Justice and its ability to ‘paint the anger’
the audience ‘feels’.
18 Billington, State of the Nation, op cit., p. 390.
19 Hare, Obedience, op cit., p. 29. For a commentary on Hare’s long-standing interest in
verbatim drama, see Boon, About Hare, op cit., pp. 62–3.
20 See Hare, Obedience, pp. 3–4, 19–20, 48–9. For critical commentary on Hare’s position
in contemporary British, and more particularly political, theatre, see Billington, State of
 The play of terror 185

the Nation, op cit., pp. 215–16, and also p. 262 comparing Hare’s generational authority
with that of John Osborne two decades earlier, and also Boon, About Hare, op cit., p. 1
confirming his position as a ‘passionate and unrelenting critic of the establishment’, and
also ibid., pp. 18–26.
21 See Interview comments quoted in Boon, About Hare, at p. 79 and also Hare, Obedience,
p. 114.
22 The three plays focussed, in turn, on the Church, the law and the political party.
See Billington, State of the Nation, p. 330, and also Boon, About Hare, pp. 127–30.
23 See Mailer, Why are we at war?, op cit., p. 15, suggesting that the remark betrays an
America that is ‘growing more arrogant, more vain’. Rumsfeld’s observation, Mailer
further observes, at p. 120, was probably ‘the most racist remark I ever heard’.
24 D. Hare, Stuff Happens, London: Faber and Faber, 2004, p. 32.
25 Ibid., pp. 32, 117. John Gray has recently alluded to such as a process of fashioning a
‘pseudo-reality’. See his Black Mass: Apocalyptic Religion and the Death of Utopia, London:
Penguin, 2007, pp. 103–105.
26 See his comments, in an interview given in the Guardian, 30 May 2006, at p. 10.
27 Hare, Stuff Happens, op cit., pp. 9–10.
28 See I. Ward, Law, Text, Terror, Cambridge: Cambridge University Press, 2009, p. 67.
29 Hare, Stuff Happens, p. 119.
30 See P. Sands, Lawless World: America and the Making and Breaking of Global Rules, London:
Allen Lane, 2005, p. 174, and also D. McGoldrick, From 9/11 to the Iraq War 2003,
Oxford: Hart Publishing, 2004, p. 87. The view was echoed, in slightly more measured
tones in London, when Prime Minister Blair advised in 2005, ‘Let no one be in any
doubt, the rules of the game are changing’. Quoted in C. Walker, ‘The Treatment of
Foreign Terror Suspects’, Modern Law Review, 2007, vol. 70, p. 427.
31 See Sands, Lawless World, p. 20, and also T. Franck, ‘The Use of Force in International
Law’, Tulane Journal of International and Comparative Law, 2003, vol. 11, pp. 10–11, and
M. Sapiro, ‘Iraq: the Shifting Sands of Preemptive Self-Defence’, American Journal
of International Law, 2003, vol. 97, at p. 599, suggesting that the doctrine rose ‘like a
phoenix from the ashes’.
32 Quoted in P. Sands, Torture Team: Deception, Cruelty and the Compromise of Law, London:
Allen Lane, 2008, p. 126.
33 J. Conrad, The Secret Agent, Harmondsworth: Penguin, 2004, p. 40.
34 H. Koh, ‘The Spirit of the Laws’, Harvard International Law Journal, 2002, vol. 43, p. 23.
35 Hare, Obedience, p. 193.
36 See Hare, Obedience, p. 200, and also at p. 208 commenting in like terms on the particu-
lar disregard displayed by the US and UK for international law during the prosecution
of the ‘war on terror’.
37 See Brevoort’s observations in her Author’s Note to The Women of Lockerbie, New York:
Dramatist’s Play Service, 2005, at p. 3. See also Michael Billington’s review of the
play in the Guardian, 5 September 2005, at p. 19. The Euripidean affinity is discussed
in greater depth in Ward, Law, at pp. 98–107. For a further discussion of Euripides’s
Trojan Women in the context of 9/11, see M. Nussbaum, ‘Compassion and Terror’, in
J. Sterba (ed.), Terrorism and International Justice, Oxford: Oxford University Press, 2003,
p. 230.
38 Brevoort, Women of Lockerbie, p. 10.
39 For an affirmation of this sentiment, see Hare, Obedience, p. 207.
40 Ibid., p. 17.
41 Ibid., p. 18.
42 Ibid., p. 26.
43 Ibid., p. 28.
44 Euripides, The Women of Troy, in The Bacchae and Other Plays, Harmondsworth: Penguin,
2000, p. 93.
186 Law and art: justice, ethics and aesthetics

45 Nussbaum, ‘Compassion’, op cit., pp. 231, 251.

46 ‘Talking to terrorists’, as Soans’s Northern Ireland Secretary confirms, ‘is the only way
to beat them’. Soans’s Northern Ireland Secretary is, of course, Mo Mowlem. See his
Talking to Terrorists, London: Oberon Books, 2005, at p. 28.
47 Via Dolorosa is a monologue in the form of reportage, addressing the subject of life in the
‘occupied territories’. In this form it bears obvious comparison with the monologues on
the subject of women and violence written and performed by Franca Rame in the
1970s and 1980s. For Hare’s own commentary on Via Dolorosa as a species of verbatim
drama, see Obedience, pp. 78–9.
48 See G. Achcar, The Clash of Barbarisms, London: Saqi, 2006, p. 86; D. Rose, Guantanamo:
America’s War on Human Rights, London: Faber and Faber, 2004, p. 11; and D. Amann,
‘Guantanamo’, Columbia Journal of Transnational Law, 2004, vol. 42, p. 264. See also
M. Arden, ‘Human Rights in an Age of Terrorism’, Law Quarterly Review, 2005, vol. 121,
p. 621, regretting that Guantanamo ‘constitutes one of the most enduring images
of President Bush’s war on terror’.
49 For a similar observation, see Achcar, Barbarisms, op cit., p. 119, suggesting that barbar-
ism feeds on the ‘spectacle’ of still greater barbarisms.
50 Pinter, Speech, op cit., p. 12.
51 As Judith Butler has recently observed, the writ of law ‘is effectively suspended’. See
J. Butler, Precarious Life: The Powers of Mourning and Violence, London: Verso, 2004, p. 51.
Philippe Sands quotes Michael O’Hanlon, senior fellow at Brookings Institution.
Accordingly to O’Hanlon, ‘We can sort of do what we want there. It’s on foreign soil
and yet the foreign government doesn’t have much say in how we use the place.’
See Sands, Lawless World, p. 158. See also Rose, Guantanamo, op cit., pp. 22, 32–3; and
M. Ratner, ‘Moving Away from the Rule of Law: Military Tribunals, Executive
Detentions and Torture’, Cardozo Law Review, 2003, vol. 24, p. 1518. Of course, much
depends here upon classical notions of sovereignty, and the fiction that as Guantanamo
is not part of US sovereign territory, those who reside there are not subject to US law;
a state of affairs that the protocol to the third Geneva Convention was expressly created
to prevent. For a commentary on Guantanamo as an expression of anger, and of ‘the
impotent acting out’, see S. Žižek, Welcome to the Desert of the Real, London: Verso, 2002,
pp. 35, 37. The same suggestion can be found in Dorfman, Other Septembers, op cit., p. 10.
For the suggestion that it is also an expression of guilt, see Ashcar, Barbarisms, op cit.,
p. 43, arguing that the American political elite is haunted by the thought that Al-Qaida
is a Frankensteinian monster, built to destroy the Soviet Union, but which has turned
upon its creator. For similar views, see also W. Lacqueur, No End to War, New York:
Continuum, 2004, p. 127; and Tariq Ali, Bush in Babylon: The Recolonization of Iraq,
London: Verso, 2003, pp. 152–3.
52 The gulag reference, articulated by Amnesty, is given in M. Begg, Enemy Combatant,
London: Free Press, 2006, at p. 389. Invocations of Kafka are many. It is found, for
example, in the account of detainee Moazzam Begg, who comments ‘I hadn’t read
Kafka, but I knew the expression Kafkaesque. It was happening to me’. See his Enemy
Combatant, p. 155. For an alternative invocation, see B. Ackerman, Before the Next Attack:
Preserving Civil Liberties in an Age of Terrorism, New Haven: Yale University Press, 2006,
p. 70, suggesting that the fate of those incarcerated at Guantanamo can be compared
with Kafka’s famous parable of the doorkeeper in The Trial. For a discussion of the
possible jurisprudential interpretations of this particular parable, see I. Ward, Law
and Literature: Possibilities and Perspectives, Cambridge: Cambridge University Press, 1995,
pp. 144–5.
53 See Rose, Guantanamo, p. 23, quoting Marine Colonel William Lietzau, and also C.
Stafford Smith, Bad Men: Guantanamo Bay and the Secret Prisons, London: Weidenfeld &
Nicolson, 2007, p. 243.
 The play of terror 187

54 J. Steyn, ‘Guantanamo Bay: The Legal Black Hole’, International and Comparative Law
Quarterly, 2004, vol. 53, pp. 1–15. The same sentiment can be discerned in Arden,
‘Human Rights’, p. 604, reflecting on the nature of the ‘challenge’ which Guantanamo
poses to precisely these principles, and also Ratner, ‘Rule of Law’, p. 1521, comment-
ing ‘I do not care whether we love or hate these people, every human being is guaran-
teed certain fundamental rights’.
55 V. Brittain & G. Slovo, Guantanamo, London: Oberon, 2004, p. 43.
56 Rose, Guantanamo, op cit., pp. 118–19.
57 Brittain and Slovo, Guantanamo, op cit., pp. 19–20, 34. For a collateral account, focussing
on the ‘Tipton Three’, see Rose, Guantanamo, pp.12–14, 38–9, and also more generally
pp. 134–5.
58 Ibid., p. 23. The account is authenticated by Begg’s lawyer, Michael Ratner, in
M. Ratner and E. Ray, Guantanamo: what the world should know, New York: Arris Books,
2004, pp. 57–8.
59 Ibid., p. 29.
60 Ibid., pp. 51–2.
61 Lucia Zedner has recently emphasised the value of applying the faculty of political
‘imagination’ in such circumstances, suggesting that ‘To posit our loved ones or our-
selves as possible subjects of security measures is no abstract act of jurisprudential
conjecture’. See L. Zedner, ‘Securing Liberty in the Face of Terror: Reflections from
Criminal Justice’, Journal of Law and Society, 2005, vol. 32, p. 515.
62 Brittain and Slovo, Guantanamo, pp. 28–9.
63 Ibid., pp. 45–6.
64 Steyn, ‘Black Hole’, op cit., p. 8, and Dorfman, Other Septembers, op cit., p. 232.
65 Billington, State of the Nation, op cit., p. 411.
66 See Hare, Obedience, op cit., p. 72 and also p. 77.
Chapter 11

The poetic ocean in

Mare Liberum 1
Stephanie Jones

This chapter investigates Hugo Grotius’s recognition of the ocean as both a

visceral and abstract poetic in his Mare Liberum (The Free Sea) (1609). It indicates
how moments of poetic quotation enforce, but at times more forcefully disrupt the
apparent certainties of Grotius’s reasoning. Suggesting that his frequent gestures
to works of poetic art from the Roman canon are finally more disjunctive than
junctive, this close literary critical approach to this famous work of maritime law
yields anxiety about the motivation and coherence of Grotius’s argument. Focusing
on the inter-textual aesthetics of the legal narrative, this chapter aims to under-
stand how the ideas and atmosphere generated by Grotius’s use of literature pre-
dicts and even exceeds centuries of criticism of Mare Liberum.
While he has long been celebrated as a founding father of secular universal
human rights discourse, more recent scholarship is tending to focus on Grotius’s
promotion of a modern international order premised on substantive inequalities
between states and a politics of violence.2 And while his prodigious output—he
published over 50 books—has long been recognised as learned and sophisticated,
he has always been criticised as a politically complicit and opportunistic thinker.3
Nonetheless, it is hard to overestimate the importance of Grotius’s work to early
modern debates between European maritime powers, and to the history of trade
and colonial expansion4; the continuing importance of his theories to moral, polit-
ical and legal philosophy5; and the iconic significance of his work in debates over
the law of the sea, and within histories of international law.6 The authority Grotius
derives from and lends the Roman legal tradition is crucial to his status across
these histories and disciplines.7 His reliance on Roman law in Mare Liberum has,
as Philip Steinberg points out, led to an assumption of the Roman laws of the sea
as the first international law, and is part of an influential body of scholarship that
works upon the larger intellectual and ethical continuities between Roman and
modern law.8 Within this tradition, Benjamin Straumann traces the force of
Grotius’s arguments to Roman legal rhetorical practices of deduction from prin-
ciple, representation of consensus, and testimony. He argues that in bringing the
Roman conception of rules as rights-based—particularly Cicero’s representations
of a remedial ‘just war’ as an institution of natural law, and his paralleling of state
and individual rights as intrinsically natural—to bear on the fraught relationships
 The poetic ocean in Mare Liberum 189

between states in the early-modern period, Grotius offers ‘a genuinely modern

approach to natural law’.9 In developing his argument, Straumann is careful to
recognise discontinuities between Greek and Roman, and between early modern
and modern conceptions of rights and the laws of nations.10 Other scholars work-
ing on Grotius’s use of the Roman jurists are even more wary of ‘the ruinous
reasoning that compels some writers to suggest that modern doctrines of inter-
national law can trace their lineage directly back to ancient times’.11
In Ram Anand’s persuasive but not uncontroversial view, referencing the
Roman jurists enables Grotius to access laws that were generated by South and
South-East Asian states.12 He argues that close commercial relations between
these regions and the Roman Empire operated on the basis of a legal understanding
of the freedom—the unpossessability—of Indian Ocean space that was primarily
generated by the practice of its Eastern littoral states. In Anand’s telling, with the
collapse of the Roman Empire, this relationship was lost, Europe turned inwards,
and South and South East Asia turned to trading partners in the Middle East.
Over the subsequent centuries, a legal culture of mare clausum—enclosed seas—
became more entrenched in Europe, so the late 16th/early 17th century of
European maritime commercial adventure found Grotius needing the earlier
Roman sources to make his argument.13 In this way, his quotation of Roman
jurists is central to Anand’s thesis that ‘Whatever may be said about some other
rules of international law, freedom of the seas, which had formed the pith and
substance of the modern law of the sea, is one principle which Europe learnt and
got from Asian state practice through Grotius.’14
As China Miéville recognises, Anand and others offer important correctives to
Eurocentric narratives of international law.15 But he also critiques these recupera-
tive histories as tending to offer an ‘arithmetic model’, in which ‘historical change
occurs through the addition of separate sets of ideas one to the other’. In this
sense, these histories of extra-European state agency are broadly continuous with
a long tradition of doctrinaire and schematic international legal historiography in
which ‘[t]here is no sense of social totality’, and which therefore obscures the
extent to which ‘international law is colonialism’.16 Within Miéville’s thesis,
Grotius’s work on the law of the sea is foundational in its emphatically de-historical
privileging of Roman law and ignoring of the vast shifts in political economy that
separate Roman from early modern lives, economies and state perspectives. In his
reading, the appeal of Roman law for Grotius is not that it allows him to access a
lost history of international legal relations, but rather that it allows him to cun-
ningly work with a tradition grounded in a distinction between dominium (posses-
sion) and imperium (control) as practiced by the Romans in Mare Nostrum (‘our sea’),
the Mediterranean. Baldly stated, this distinction allows a juridically abstract doc-
trine of free seas and nominally equal states that yet enables a freedom to violently
exert power.17
Looking to Grotius’s reliance on the Roman jurists raises acute questions
around his use of the poets. In what ways does the poetic literature contribute to
or adumbrate his ‘modernisation’ of Roman natural law? How do these quotations
190 Law and art: justice, ethics and aesthetics

testify to and how do they detract from Grotius’s acknowledgement of the inter-
national legal standards of Indian Ocean states? Do they lend a sense of ‘real’
history, or do they have a de-historicising effect? In what ways do they encourage
and in what ways cast doubt on the ‘right’ to wage ‘just war’ and/or the ‘imperial
‘rights’ of the Dutch? While Grotius often quotes the poetry to prove or endorse
these ‘rights’, his deployment of poetic art also reads as an attempt to reconcile or
transcend various approaches. It often seems that what appeals to Grotius in the
work of these writers—what he finds most compelling and unique in their art—is
a critical nuance between custom (in literary form or thought) and unique story;
myth and experience; detached enquiry and immediate emotion; the conceptual
and the material; the untestable and the empirically known.18 As such, flourishing
moments of poetic and dramatic reference are both highly enabling and vulner-
able points in Grotius’s methodology. My argument is that these moments some-
times cover-up ethical qualms, but that they accrue into a more critical signification
of a perplexity about the legitimacy of the legal truths that he so stridently pursues.
In other words, that ethical doubt is admitted through the placement of poetic
scenes in Mare Liberum: scenes that are often drawn from texts which imagine
fraught encounters between men (and occasionally women) and marine geog-
raphies. Key to this chapter is the apprehension that the apparent vigour of
Grotius’s Mare Liberum is riddled by a troubled relationship between the absolutes
of law and the effects of art.19
In 1603, a ship of the Verenigde Oostindische Compagnie (VOC) (Dutch East India
Company) captured a Portuguese trading carrack, the Santa Catarina, in the Strait
of Singapore. With the aim of placating company shareholders worried about
both the morality and costs of such action, Grotius was commissioned to write a
justification of the capture as a defence against Portugal’s attempts to monopolise
trade in the Indian Ocean. His extensive De rebus Indicis (On the Affairs of the Indies)
or De iure praedae commentarius (Commentary on the Law of Prize and Booty) was com-
pleted circa 1604, but not discovered and published until the mid-nineteenth cen-
tury.20 It may be that the dividend yielded to shareholders from the sale of the
breathtaking wealth of goods from the Catarina overcame the qualms of the share-
holders and overtook the need for Grotius’s treatise.21 However, in 1608 the
United Provinces of the Netherlands entered a new and formal phase of negotia-
tions with Portugal. The Portuguese were seeking a guarantee from European
competitors to respect, as exclusive, their navigational, commercial and political
connections with the East Indies, India and China. Concerned that their govern-
ment would acquiesce to these demands, the VOC asked Grotius to publish parts
of the text originally written as a justification of the capture of the Catarina. These
parts were restructured as Mare Liberum.22 A reading of some of the continuities
and discontinuities between Mare Liberum and its more expansive source text brings
into relief Grotius’s debt to the Roman poets, and foreshadows the ambivalence
of their effect within the later text.
In the opening paragraphs of De iure praedae, Grotius offers his initial moves
towards what was to become—through Mare Liberum and more fully in his most
 The poetic ocean in Mare Liberum 191

famous and major treatise De iure belli ac pacis (On the Laws of War and Peace) (1625)—a
foundational description of a modern natural law of human rights. Within this
nascent argument, Grotius recognises nature as the primary source of law through
Lucretius’s poem De Rerum Natura (On the Nature of Things) (50 BC). Concluding his
proposal that ‘the truly good man will be free . . . from the disposition to accord
himself less than his due’, he quotes:23

hunc igitur terrorem animi tenebrasque necessest

non radii solis neque lucida tela diei
discutiant, sed naturae species ratioque24
This terror of the mind [or soul], then, needs to be scattered, not by the rays
of the sun nor the bright weapons of the day
But by visible nature and by its [inner] law25

Through these lines of poetry, Grotius articulates—possibly for the very first
time in his known writing—an understanding of nature as the ‘sole . . . source’ of
the laws defining ‘how much is owed to others, and how much to oneself’.26 But
the nature to which he appeals is not sole or single. The phrase ‘naturae species
ratioque’ is repeated at a number of crucial points in De Rerum Natura, and its mean-
ing beyond and within the poem has bothered two millennia of readers.27 What
seems clear is that it conveys an idea of nature as having an outer aspect (species)
and an inner part (ratio). (The connotation of inner may derive from the contrast
with species and may not be given by the term itself. Or the connotation of inner
might be what distinguishes ratio from the more common word for law, lex.28) To
disperse terror—which within Grotius’s context, is to achieve something like a
steelier self-respect more than a freedom from fear connoting consolation or
peace—one needs (in the sense of both a moral and practical imperative) to look
to both these constituents of nature. One influential gloss on the phrase is that it
signifies a necessary merger of poetic and philosophical approaches, where poetry
is emotive, reactive, and immediate (species) and philosophy is detached and scientific
(ratio).29 Another persuasive gloss highlights the sense of inextricability (beyond
simple complementarity) yielded by the phrase. With close reference to surround-
ing lines of poetry, species is read as connoting the ‘causal’ ‘regularity of all visible
phenomena’, so that the final vision of nature captured by the words is one in
which ‘the massive sensuous earth . . . becomes a crystalline abstract’.30 Following
these scholars and bringing a wide interpretation of Lucretius’s naturae species
ratioque to De iure praedae and Grotius’s oeuvre more generally, the lines may be read
to indicate the sense of a necessary commitment to the visceral natural world as a
poetic in itself which both derives from and gives rise to natural law. Grotius may
be read as turning to Lucretius at the beginning of this early text to define both an
entwined sense of nature and his entwining method, which we then see enacted by
his continual turns to poetry in De iure praedae and even more starkly in the more
compact Mare Liberum. Further, that this natura is contrasted with radii solis and
192 Law and art: justice, ethics and aesthetics

lucida tela diei emphatically grounds both its parts. In other words, the poem posits
a nature that is not legitimated or shaped by—that does not derive inner meaning
from—anything transcending (descending to) the earth. The contrast connoted
through the use of the term ‘necessest’—literally ‘it is necessary’—is highlighted in
William Ellery Leonard’s translation of the final line as ‘But only Nature’s aspect
and her law’ (my emphasis; see note 12). The secular or at least potentially secular
nature of this exclusive natura predicts Grotius’s fame.
The status of Grotius’s work is in no small part due to the perception that he
conceived a natural law that lent a newly secular shape and force to the language
of freedoms and rights.31 But whether Grotius’s secularity was new or is truly secu-
lar is a point of continuing discussion, with most of the debate beginning and
ending with Grotius’s statement in De iure belli ac pacis that ‘What we have been
saying would have a degree of validity even if we should concede that which
cannot be conceded without the utmost wickedness, that there is no God, or that
the affairs of men are of no concern to [H]im’.32 However, there does seem to be
consensus that Grotius’s position—whether truly secular or not—was politically
astute, and at least in part driven by a desire to place his argument beyond denom-
inational arguments over scripture. But it is also clear that his ‘relative neglect of
theology’ derives from a political need to recognise the non-Christian players in
the maritime trading world of the Malay Archipelago and the Indian Ocean.33
As Anand most emphatically highlights, the argument of De iure praedae closely
relies on a detailed history of the relationships between the various national—state
and commercial—actors in Indian Ocean trade.34 This is offered as the set of facts
to which legal principle is to be applied, but also as customary proof of universal
rights to trade, to violently defend that right to trade, and to claim recompense for
losses incurred by those acts of defence. Beyond the presentation of the Portuguese
as consistently and deeply iniquitous, what is most striking about these passages—
and of greatest importance to their presentation as proof of accepted law—is the
insistence on the agency and rights of local states. So when Grotius’s version of
Indian Ocean trading history reaches the incidents leading up to the capture of
the Catarina, we are first told: ‘We come now to the last part of our narrative,
which has to do with the King of Johore.’35 In his rendering of events, the VOC
took the Portuguese carrack in defence of their own right to trade with the King,
but even more fully in defence of the King’s right to trade with the Dutch.36
The alliance with Johore crucially thickens the narrative of rightful defence by
providing an atmosphere of local state authorization and principled defence to
what was prima facie an act of outright piracy by the VOC.37 Or—taking another
common perspective—it provides a secular moral gloss on the fact that Grotius’s
‘very argument for ‘‘free seas’’ is justification for an act of violent maritime
plunder’.38
This detailed historical narrative does not appear in Mare Liberum, which was
distilled from earlier parts of De iure praedae. While still keyed around the rights of
the Dutch to access the Indian Ocean, the later text is projected as a more general
argument for freedom of trade and navigation. Lifted away from the politics and
 The poetic ocean in Mare Liberum 193

intricacies of the Catarina incident, the argument that, while ‘infidels’ may be
‘entangled in grievous sin’, they nonetheless have ‘both publicly and privately
authority over their own substance and possessions’ has a purer and more abstract
force in Mare Liberum.39 The effects of this are consolidated and sustained through
poetry. The absence of (even a schematic and biased) detailing of history means
that the exemplary human moments of Mare Liberum are predominantly provided
by scenes from Roman poetry, which tell even more sordid and significantly
more personal stories than are present in Grotius’s rendering of Indian Ocean
maritime history. This cutting of historical detail makes more exclusive and
less metaphoric space for the mythic poetic of human pre-history and history that
Grotius derives from the poets. That Mare Liberum is not bound to any over-
determining references to the Bible makes even more space for these inter-textual
effects. While this scriptural absence might only ambivalently gesture Grotius’s
secular intent, the ‘replacement’ of potential Biblical quotations with gritty
moments from the Roman canon more fully suggests a strident secular agenda. In
these ways, the distillation of Mare Liberum from De iure praedae allows for the larger
and looser play of poetry within the text, but also more tightly binds its structure
of ideas to the different kinds of ‘truths’ yielded by the poetry. That the poetry signi-
fies an attenuated relationship between the text’s arguments and recent political-
economic history, but at the same time offers a more intimate sense of a material
relationship between man and sea is a marked tension within the narrative.
In continuity with De iure praedae and with the foundation of that work in
Lucretius’s De Rerum Natura, the introductory passages of Mare Liberum set up the
physical world as the first source of legal learning. This is not in contradiction to
divine law, but in recognition that divine law as laid out in scripture is a form of
positive law that derives ultimate authority from nature, as created by God. The
impact of these early statements is less to acknowledge God than to put Him and
scripture aside. One of the opening paragraphs of the text states:
For even that ocean wherewith God hath compassed the Earth is navigable
on every side round about, and the settled or extraordinary blasts of wind, not
always blowing from the same quarter, and sometimes from every quarter, do
they not sufficiently signify that nature hath granted a passage from all nations
unto all? . . . even by the wind she hath mingled nations scattered in regard of
place and hath so divided all her goods into countries that mortal men must
needs traffic among themselves. This right therefore equally appertaineth to
all nations, which the most famous lawyers enlarge so far that they deny any
commonwealth or prince to be wholly able to forbid others to come unto
their subjects and trade with them. Hence descendeth that most sacred law of
hospitality; hence complaints:
Quod genus hoc hominum? Quaeve hunc tam barbara morem
Permittit patria? Hospitio prohibemur harenae
[What race of men, and what land is so barbarous as to permit this custom?
We are debarred the welcome of the beach]
194 Law and art: justice, ethics and aesthetics

And
. . . litusque rogamus
Innocuum et cunctis undamque auramque patentem’
[We now crave a harmless landing-place, and air and water free to all].40
The lines are from Book One (lines 539–40) and Book Seven (lines 229–30) of
The Aeneid (29–19 BCE), Vergil’s epic of the Trojans’ voyage to Italy to establish
the Roman Empire.41 Grotius’s choice to open Mare Liberum with a statement
on the absolute sanctity of a natural law of hospitality, and to promote the force
of this law through Vergil’s dramatic scenes, has expansive implications. Both
quotes are taken from speeches by Ilioneus, the eldest Trojan serving under
Aeneas, the prophesied founder of the new Empire. The first is from the speech
he makes to Dido, Queen of Carthage. On their way to Italy, the Trojans have
been shipwrecked on the coast of North Africa, and he is complaining against her
people. She reassures him that their wariness of foreigners is justified, but that
‘Phoenicians know the world!’ and so will now behave according to the universal
laws of hospitality.42 The second quote is taken from the beginning of Ilioneus’s
speech to Latinus, in which he reveals that the Trojans have arrived in Italy, not
as shipwrecked exiles, but seeking hospitality as part of a deliberate pursuit of a
‘prophetic order’ to found an empire. Ilioneus reassures Latinus that his people
won’t be ‘shamed’, but warns against ‘scorn[ing]’ his offer of an alliance.43 Read
back into their original context, then, Ilioneus’s words exceed a simple statement
of a law of hospitality deriving from the right to trade. Indeed, in its movement
from a request for hospitality to an imperial assertion, his speech assumes the
‘impossibility’ of a ‘law of hospitality’ posited by Jacques Derrida.
Having circled the idea that to be a law of hospitality, that law must be uncondi-
tional, Derrida says: ‘For it to be what it “must” be, hospitality must not pay a debt,
or be governed by duty: it is gracious. . . . This unconditional law of hospitality . . .
would then be a law without imperative, without order and without duty. A law
without law . . .’44 As such, it prescribes its ‘own perversion’.45 But Derrida pursues
this reasoning, not to demonstrate the non-existence of the law, but the constant,
everyday manifestation of the law as an enactment of its own perversion. In always
entailing an assertion of ownership, the granting of hospitality is always an act of
limiting the guest, and so fails to be truly hospitable. On the other hand, the
attempt to grant unconditional hospitality—to offer a home without limit, without
an assertion of property, without an imposition of law—must turn the ‘host’ into
the ‘hostage’ of the guest: and so ‘hospitality’ becomes ‘hostility’.46 The ‘without
law’ stops signifying (or never managed to signify) the grace that exists outside
compulsion: it becomes the possibility of war. The Aeneid bears out Derrida’s thesis.47
In the speeches to which Grotius directly gestures, the Trojan can be seen to
pre-emptively refuse the ‘possible’ hospitality that would also signify Latinus’s
assertion of ownership of Italy and thereby control over the Trojans (thereby
failing to be hospitable at all). In edging his speech towards a claim to power and
property, he undercuts Latinus’s very ability to offer hospitality (and so again this
 The poetic ocean in Mare Liberum 195

law of ‘highest sanctity’ becomes impossible). While The Aeneid inevitably ends
with a triumphant vision of Trojan settlement that also respects Latin heritage,
this finale doesn’t resolve the problematic of Ilioneus’s speech. This isn’t a purely
literary point. Placing this deconstructive reading of The Aeneid back into the con-
text of Grotius’s thesis, it reveals how closely—how, in Derrida’s terms, inelucta-
bly closely— Grotius’s protection of the law of hospitality is related to his assertion,
later in Mare Liberum, of a right to claim what is claimable if it appears to be unoc-
cupied, uncultivated or inexhaustible, which in turn—and with appalling speed—
turns into a sense of imperial right. The quotations from Vergil don’t just evidence
Grotius’s complicity in a larger imperial project, but invokes an atmosphere of
poetic predestination that exceeds the legal reasoning on rights with a mythic
sense of right.
In the words of van Ittersum, ‘Grotius does not qualify as a democrat or a
human rights activist’. Pointing beyond his publications to letters and other evi-
dence of his relationship to the VOC, she offers an image of a dedicated company
man whose final and life-long aim was ‘to defend the establishment of a Dutch
empire of trade in the East and West Indies’.48 Alongside the work of Keene and
Miéville, this biographical research quietens more celebratory readings of the
potential of Grotius’s recognition of the rights and powers of non-Christian
nations, and highlights the distance between Grotius’s driving focus on commer-
cial freedoms, and a version of history and rights that transcends the laws and
metaphors of European conceptions of property (of cultivation, use, and individ-
ual and state ownership). Strategically championing non-European state practice
certainly does not make Grotius a champion of subaltern rights. The emphatic
materiality—first taken from Lucretius—of Grotius’s conception of nature can
thus be seen to have politically and culturally limiting as well as secular and liber-
ating consequences. This is further borne out in Grotius’s use of The Aeneid to
metaphorically predict Dutch ascendency by invoking a speech that supersedes
interrogation by righteously collapsing the right to material hospitality into a right
to colonise. But in his use of other poets, Grotius seems almost to acknowledge
the vulnerability of the legal theory he stridently presents.49 This doubt is revealed
in the mythic history informing the thinking laid out in the crucial fifth chapter of
Mare Liberum.
Grotius’s basic argument in Chapter Five of Mare Liberum is that by nature,
nothing is private property. But it is in the nature of certain things—land, for
example—to have the capacity to become private property through use and
occupation. Things may also become public by the same processes of use and
occupation, meaning they may become the property of the state in right of its
citizens. But some things in nature cannot by their nature ever be possessed. Most
importantly and fundamentally, ‘the sea . . . cannot be made proper’.50 Because
the sea cannot be contained and the sea cannot be exhausted, it must remain
common to all. The right to navigation of the sea is thus a natural law emerging
from physical principles. This is all apparently in line with Lucretius’s naturae species
ratioque and in confluence with a Vergilian sense of epic order. We are given a
196 Law and art: justice, ethics and aesthetics

vision of history as a movement of epochs, in which the laws of property allowed

by nature become ever more sophisticated. But what is intriguing and disruptive,
I think, is that what is presented as a history of legal refinement is simultaneously
comprehended as a history of total and devastating moral decline. Nature may be
legally malleable in consonance with the growth of ‘civilisation’, but Grotius catches
himself in a poetic myth of nature as a fixed, originary standard of morality.
Early in Chapter Five, Grotius refers to a ‘primitive law of nations, which is
sometimes called Natural Law, and which the poets portray as having existed in a
Golden Age . . . [in which] there was no particular right. . . . For nature knows no
sovereigns.’51 Grotius spends a notable amount of text elaborating this pre-history
in this central chapter (and this history even more fully permeates De iure praedae).
This discourse is keyed around the work of Seneca, and particularly a quotation
from Octavia (circa 62 AD).52 This play tells the story of Nero’s cruel divorce
and exiling of his wife, prompted by his desire for another woman. In line with
Seneca’s larger oeuvre and fame, the play offers a clear warning against the abuse
of power: a warning that is also explicitly pursued by Grotius in De iure praedae,
Mare Liberum and his later texts.53 (Like Seneca, Grotius approves a strong
state, but couples this approval with repeated warnings against tyranny and
decadence.) In Octavia, the rule of Nero is presented as a time of excess and
tyranny. The ‘Seneca’ of the text—a truth teller who turns the complaints of
Octavia and her nurse into universal principles—is given a speech which opens
by acknowledging ‘Mother Nature’ as the ‘great architect/of infinite creation’
(386–87).54 The speech then offers a remarkably compressed but vividly material
outline of the declining ‘ages’ of humanity. Grotius lifts these lines from a description
of the first age, long past:

. . . pervium cunctis iter,

Communis usus omnium rerum fuit55
. . . roads were free for all,
And all earth’s goods were common property.56

This first age is a time when people were ‘gentle’ and ‘just’. It is followed by an
era in which a ‘restless breed . . ./drag the sea with nets/For fish that sheltered in its
lower depths’, who cage, noose and yoke animals, and who plough the land. The
third generation—the ‘base sons’ of this second era—‘spared not to rifle their own
mother’s body/For gold, and that dread iron whence ere long/They fashioned
arms to fit their murderous hands/This was the generation that set bounds.’ But it
is the last era—the contemporary of the play—that is most debased, and defined by
greed, lust, and lechery. It is ‘wicked’ and ‘blood-polluted’.57 We could scarcely be
offered a starker vision of a world history in which the development of a sense of
property is portrayed as a moral and ethical dissolution. This disjuncture between
Grotius’s systematic legal argument and the impetus of the poetry on which he
relies is even more fully complicated by his use of Ovid’s Metamorphoses (circa 8 AD).
 The poetic ocean in Mare Liberum 197

Following his curiously dense, legally objective, but inter-textually morally and
emotionally loaded evocation of the ages of man, Grotius goes on to demonstrate
why some things in nature—particularly the sea—remain common. While he
writes of those things that are ‘classed by the jurists . . . common to all mankind’,
he turns to poetry for an actual list. He takes it from Metamorphoses, from Goddess
Latona’s plea to a mob of peasants who are refusing to let her drink from a pool
(and who, in vengeance, she turns into frogs):

Quid prohibetis aquas? Usus communis aquarum est.

Nec solem proprium natura nec aera fecit
Nec tenues undas: in publica munera veni58
Why must you stop me drinking? Water belongs to everyone.
Nature never intended the sun or the air or the flowing streams [possibly
‘flowing water’ with a sense that includes ‘waves’] to be private: I’m simply
here for my common right [literally ‘I have come for public gifts’]59

In line with the classical tradition, Ovid—like Seneca and Lucretius—offers his
stories within the highly explicit schema of man’s decline through epochs. This
appears in Metamorphoses as a preamble in which a Golden Age (when humans
‘without laws or enforcement’ did what was right) inexorably declines through
silver and bronze ages towards a final age of iron, defined by ‘criminal lust for pos-
session’, man ‘presumptuously bobb[ing] in the alien ocean’, and in which ‘[t]he
land that had been as common to all as the air or the sunlight/was now marked
out with the boundary lines of the wary surveyor’.60 However, Ovid’s famously
lucid and debunking sensibility is evident in the preamble to this preamble. Here
he describes a pre-history to this pre-history, in which ‘the whole of nature dis-
played but a single/face, which men have called Chaos: a crude/unstructured
mass, nothing but weight without motion’.61 He goes on to describe the division
of the world into its various elemental parts before turning to the ages of men.
So while Ovid appears to follow tradition in bemoaning man’s growing sense
of property as a moral decline, his sneaky pre-preamble undercuts and confuses
this narrative by insisting on the necessity of divisions and boundaries
to ward off decline into this archaic, undifferentiated chaos (many of Ovid’s tales
of metamorphoses involve the comically horrifying reduction of humans into
parts of the natural world). In being continuous with these foundational divisions,
the growth of man’s sense of property appears more natural and necessary,
although Ovid does not give this dynamic moral or ethical loading. Ovid’s
massive and carefully chaotic poem delights in stories of elemental change, in
which men, women and Gods are constantly skirting a return to a state of undif-
ferentiated and mere physicality: Lucretius’s natura without ratio. So while in one
sense it is fitting that Grotius should turn to Ovid for a list of common resources,
the presence of Metamorphoses in Mare Liberum also reads uneasily. It threatens
Grotius’s legal rigour by highlighting the tenuousness of our individual sense of
198 Law and art: justice, ethics and aesthetics

being within a natural law and order. This threat is, naturally, most manifest in
the freedom of Grotius’s ocean.
It is a starting point of classical scholarship that Ovid’s Metamorphoses threatens
the world of tense, hard won, but epic order offered by Vergil. But within
The Aeneid, the ocean has, at times, something like Ovidian effect. As Sarah Ruden
notes, ‘one of [Vergil’s] favourite words is ingens (immense, boundless), often giving
a sense of surroundings . . . uncontrollably swooping in’.62 This word commonly
describes the ocean, and the ocean is often a metaphor for a sensibility of the
ingens. But while it threatens to overwhelm the Trojans in the first part of the
poem, Vergil’s ocean is more finally the means by which peoples are connected,
great empires formed, and fate sealed. The ocean in Mare Liberum is narrated
the other way around. Grotius most immediately and explicitly offers the ocean
as connective and productive, a means to trade and commerce. But to argue the
continued and current freedom of this ocean, he draws back to a poetic of the
ocean as always already an uncontrolled commons that neither can nor should
ever be made proper. This links the ocean to an Arcadian pre-history. It isn’t just
legally distinct from land, but within this mythic, it is a material residue of a long
lost, yearned-for morality. It is a reminder that legal refinements have been made
necessary by moral dissolutions. The ocean isn’t a threat within Grotius’s text
because it is ingens as such, but rather because its boundlessness poetically signifies
a different order of freedom: an order that isn’t driven by a legal freedom to access
property, but the freedom of a more fervently held commons that precedes divi-
sions (including the division between dominium and imperium: in Ovid’s Golden
Age, the exclusion of one is the exclusion of the other). Grotius insists that the sea
cannot be turned into territory because ‘it cannot be possessed and also because it
oweth a common use to men’.63 What is latent in the first half of this crucial state-
ment, but is brought forth by the poets, is that man also ‘oweth’ the sea.
One area of quandary over Grotius’s natural law thesis is the fissure between
what Thomas Maunter and Haakonssen describe as ‘the validity of the content of
natural law and the obligation to keep natural law’.64 While Grotius offers sources
and structures of legal knowledge, he is ambiguous about why or how we are
impelled to act in accord with that knowledge. He is read as leaving room for
Thomas Hobbes to develop his influential vision of humanity as impelled by pure
self-interest to recognise others’ rights and to sometimes give up one’s own rights
to a strong state: acts of prudent cession that are necessary in order to live well,
beyond a natural state of disorder. (While Hobbes famously draws on Grotius, the
contrast between Hobbes’s natural disorder and Grotius’s natural order is famously
stark.65) But while a language of self-interest as the ‘primary’ law of nature drives
De iure praedae and also dominates many parts of Mare Liberum, it is not the only law
directly given by nature. In opening Mare Liberum with ‘that most sacred’ and
universal law of hospitality, Grotius sets a rhetorical tenor that disallows a vision
of sociability as only deriving from self-interest, even if—as his thesis develops—he
finds himself unable to lend it the same primary legal status as self-interest, and
even if that law of sociability ultimately slides into imperialism.66 This point is
 The poetic ocean in Mare Liberum 199

made by the righteous, thirsty, sea-blown lines taken from The Aeneid—particularly
the lines to Dido—which more fully institute a law of commons given directly by
nature, not simply derived from the coolly selfish right to trade and commerce.67
This is a point that seems to defy legal precision. Grotius needs poetry to gesture
to this hold against rampant self-interest. The most human, dramatic and emotive
moments of Mare Liberum come from Roman poetry, epic and plays, and these
scenes are mostly keyed around a complaint against a failure to allow
general access to a commons (the shore or fresh water), or are keyed around a
wistful evocation of a mythic Arcadian past when all was common (the earth, the
roads): a time when a hard sense of self-interest was unnecessary. Gathered
together, Grotius’s uses of the poets may be read as articulating a resistance to a
Hobbesian resolution to the question of obligation. The poets signify the space
between Grotius and Hobbes: a space that is filled by a sensibility of the ocean
as the residue of a non-proprietorial sensibility that has otherwise been lost.
Analysing Grotius’s use of poetry does not solve the quandary over obligation;
concentrating on his use of the poets doesn’t yield a natural law solution that
transcends Hobbes, or a reading of Mare Liberum that doesn’t ultimately require a
turn to positive law (variously given by divine scripture and a strong state) for the
provision of the necessary sense of obligation. What it does suggest is a textual—if
not fully personal—anxiety that there is a more ingens freedom expressed by
the physical and poetic nature of the sea than is accounted by his natural law
theory.

Notes
1 The author thanks the UK Arts and Humanities Research Council Landscape and
Environment Programme for supporting the research and writing of this chapter. She
also thanks Oren Ben-Dor, Anne Janowitz, David Johnson, and Bella Millett, from
whose knowledge and advice this chapter has greatly benefited.
2 L. Benton, A Search for Sovereignty: Law and Geography in European Empires, 1400–1900,
Cambridge: Cambridge University Press, 2010, particularly pp. 121–137; E. Keene,
Beyond the Anarchical Society: Grotius, Colonialism and Order in World Politics, Cambridge:
Cambridge University Press, 2002, Chapters 2 and 3; C. Miéville, Between Equal Rights:
A Marxist Theory of International Law, London: Pluto Press, 2005, Chapter 5.
3 For an overview of this critical history see R. Anand, Origin and Development of the Law of the
Sea, The Hague: Martinus Nijhoff Publishers, 1982, particularly Chapter 4, pp. 102–109.
See also Miéville, Between Equal Rights, Chapter 5; and most extensively M. J. van Ittersum,
Profit and Principle: Hugo Grotius, Natural Rights Theories and the Rise of Dutch Power in the Indies
(1595–1615), Leiden: Brill Publishers, 2006.
4 Benton, A Search for Sovereignty; M. J. van Ittersum, Profit and Principle; Keene, Beyond the
Anarchical Society; and B. Schmidt, Innocence Abroad: The Dutch Imagination and the New World,
1570–1670, Cambridge: Cambridge University Press, 2002.
5 K. Haakonssen, ‘Hugo Grotius and the History of Political Thought’, Political Theory
13.2, 1985, pp. 239–65, reprinted in K. Haakonssen (ed.), Grotius, Pufendorf and Modern
Natural Law, Aldershot: Ashgate, 1999, pp. 35–61; K. Haakonssen, Natural Law and Moral
Philosophy: from Grotius to the Scottish Enlightenment, Cambridge: Cambridge University Press,
1996; K. Haakonssen, ‘Introduction’ in Grotius, Pufendorf and Modern Natural Law, pp. xiii–xix;
J. Muldoon, ‘Who Owns the Sea?’ in B. Klein (ed.), Fictions of the Sea: CriticalPerspectives on
200 Law and art: justice, ethics and aesthetics

the Ocean in British Literature and Culture, Aldershot: Ashgate, 2002, pp. 13–27; R. Tuck,
The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant,
Oxford: Oxford University Press, 1999.
6 R. Anand, Origin and Development of the Law of the Sea; C. H. Alexandrowicz, An Introduction
to the History of the Law of Nations in the East Indies (16th, 17th and 18th Centuries), Oxford:
Clarendon Press, 1967; D. J. Bederman, ‘Reception of the Classical Tradition in
International Law: Grotius’, Emory International Law Review 10, 1996, pp. 1–49; D. J.
Bederman, ‘Grotius and his Followers on Treaty Construction’, Journal of the History of
International Law 3, 2001, pp. 18–37; Benton, A Search for Sovereignty; J. Dugard, ‘Grotius,
the Jurist and International Lawyer: Four Hundred Years On’, South African Law Journal
100, 1983, pp. 213–220; Miéville, Between Equal Rights; I. Shearer, ‘Grotius and the Law
of the Sea’, Bulletin of the Australian Society of Legal Philosophy 26, 1983, pp. 46–65;
K. Zemanek, ‘Was Hugo Grotius Really in Favour of the Freedom of the Seas?’, Journal
of the History of International Law 1, 1999, pp. 48–60.
7 This is despite the fact that within the textual culture of Grotius’s era, misrepresentation
and selective quotation of Roman sources was common, if not ‘almost a rule’ as argued
by W. S. M. Knight in his article on ‘Seraphim de Freitas: Critic of Mare Liberum’,
Transactions of Grotius’ Society 11, 1926, pp. 7–8, quoted in Anand, Origin and Development
of the Law of the Sea.
8 P. E. Steinberg, The Social Construction of the Ocean, Cambridge: Cambridge University
Press, 2001, pp. 60–67. Anand’s Origin and Development of the Law of the Sea offers
an influential reading of continuities between the Roman Mediterranean and other
maritime geographies and legal histories.
9 B. Straumann, ‘‘‘Ancient Caesarian Lawyers” in a State of Nature: Roman Tradition
and Natural Rights in Hugo Grotius’s “De iure praedae”’, Political Theory 34.3, 2006,
p. 345; and B. Straumann, ‘The Right to Punish as a Just Cause of War in Hugo
Grotius’ Natural Law’, Studies in the History of Ethics 2, 2006, pp. 1–20.
10 For discussion of Grotius’s complex understanding of the Roman word ius (right) see
Straumann, ‘‘Ancient Caesarian Lawyers”, pp. 343–45.
11 D. J. Bederman, International Law in Antiquity, Cambridge: Cambridge University Press,
2001, p. 6, quoted in Miéville, Between Equal Rights, p. 159.
12 Benton argues that Anand overstates his case. See A Search for Sovereignty, p. 138.
13 Anand, History and Origin of the Law of the Sea, Chapters 2 and 4, particularly pp. 77–89.
14 Ibid., p. 86. Anand and other writers concerned with correcting the Eurocentric
historiography of international law draw on the foundational work of Alexandrowitz’s
An Introduction to the History of the Law of Nations in the East Indies.
15 Miéville, Between Equal Rights, pp. 165–69.
16 Ibid., pp. 168, 169.
17 My statement reduces the deep and complex arguments that have been developed
around this point. Grotius’s resourceful, implicit deployment of the distinction between
dominium and imperium is also at the core of Keene’s reading of Grotius as a foundational
figure of colonial ideology in Beyond the Anarchical Society, particularly pp. 40–60. This
distinction and Grotius’s use of it are also central to the ‘corridors of jurisdiction’ and
‘anomalous zones’ theses that Benton develops in The Search for Sovereignty, Chapter 3,
particularly pp. 121–122 and 135. For a more general discussion of this aspect of
Roman law and the implications of Grotius’s use of it, see Steinberg in The Social
Construction of the Ocean, Chapters 2 and 3.
18 As Haakonssen notes, ‘Grotius . . . wanted to proceed both with arguments derived
from general ahistorical theories of human nature and with arguments from the his-
torical recordings of “the common sense of mankind”. It was, however, the latter he
practiced most . . . and this led to the common criticism that, instead of using a properly
empirical investigation of human nature, he relied on the authority of historians, poets,
 The poetic ocean in Mare Liberum 201

and so on . . .’. Haakonssen, ‘Hugo Grotius and the History of Political Thought’,
pp. 46–47.
19 This chapter does not offer a close reading of every quote from every poet. For
example, it does not engage with Grotius’s use of Boethius’s Consolatio Philosophiae
(Consolations of Philosophy) (524 AD), which might be read as complicating the relation-
ship between Grotius’s natural law thinking and his general eschewing of Christian
texts. The impetus of my reading is complicated by, but is not drastically challenged by,
other references to artistic literatures that appear in Mare Liberum.
20 M. J. van Ittersum, ‘Note on the Text’, in Grotius, Commentary, pp. xxiii–xxvii.
21 For a discussion of the shareholders’ concerns and public opinion, see Anand, Origin and
Development of the Law of the Sea, pp. 78–79.
22 D. Armitage, ‘Introduction’ in H. Grotius, Mare Liberum, 1609, Richard Hakluyt the
younger (trans.), The Free Sea, manuscript circa 1614, D. Armitage (ed.), Indianapolis:
Liberty Fund, 2004, pp. xi–xx. See also M. J. van Ittersum, ‘Preparing Mare Liberum
for the Press: Hugo Grotius’ Rewriting of Chapter 12 of De iure praedae in November–
December 1608’, in H. W. Blom (ed.), Property, Piracy and Punishment: Hugo Grotius on
War and Booty in De Iure Praedae—Concepts and Contexts, Leiden: Brill, 2009.
23 Grotius, Commentary, p. 12.
24 Lucretius, De Rerum Natura, 50 BCE. Online. Available <http://www.thelatinlibrary.
com/lucretius/lucretius1.shtml> (accessed 1 May 2010).
25 This verse was put together from translations provided by A. Janowitz, ‘Re: some
advice on translation of Lucretius’, e-mail, 15 May 2010; and B. Millett, ‘Re: some
advice on translation of Lucretius’, e-mail, 16 May 2010. The translation provided by
Gwladys L. Williams in the Commentary, p. 13, reads:

Thus it is needful that these clouds of fear

Be vanquished, not by any solar shaft
Nor by the day's bright spear, but by the mien
And ordered plan of nature. . . .

An alternative translation that informs my discussion is by William Ellery Leonard,

On the Nature of Things, 1916. Online. Available <http://classics.mit.edu/Carus/nature_
things.html> (accessed 1 May 2010):

This terror then, this darkness of the mind,

Not sunrise with its flaring spokes of light,
Nor glittering arrows of morning can disperse,
But only Nature's aspect and her law.

26 Grotius, Commentary, pp. 13–14. Van Ittersum, in her ‘Introduction’ to the Commentary,
notes that ‘Grotius did not produce any significant legal scholarship prior to the writing
of De Jure Praedae’, p. xiv.
27 J. M. Duban, ‘Venus, Epicurus and Naturae Species Ratioque’, The American Journal of
Philology 103.2, 1982, pp. 165–77.
28 The distinction in modern case law between ratio decidendi—the decision’s rationale, or
core reason—and obiter dicta—literally ‘something said in passing’—might further
underline a reading of ‘ratio’ as involving a connotation of ‘inner’. The history of the
existence/circulation of these phrases in the periods in which either Lucretius or Grotius
were writing is beyond the scope of this chapter.
29 R. Minadeo, Lyre of Science: Form and Meaning in Lucretius De Rerum Natura, Detroit:
Wayne State University Press, 1969, p. 21. Quoted in Duban, ‘Venus’, p. 167.
30 Duban, ‘Venus’, pp. 168, 171.
202 Law and art: justice, ethics and aesthetics

31 Haakonssen, ‘Hugo Grotius and the History of Political Thought’, pp. 43–45.
32 H. Grotius, De iure belli ac pacis, 1625, Francis W. Kelsey (trans.), Hugo Grotius Prolegomena
to the Law of War and Peace, Indianapolis: Liberal Arts Press, 1957, p. 9. Quoted in
M. B. Crowe, ‘The “Impious Hypothesis”: a Paradox in Hugo Grotius?’ in Grotius,
Pufendorf and Modern Natural Law, p. 4.
33 Haakonssen, ‘Hugo Grotius and the History of Political Thought’, p. 43. See Anand,
Origin and Development of the Law of the Sea, Chapters 4 and 5 on the necessity of recognising
the agency of non-Christian states.
34 Grotius, Commentary, pp. 243–300 and 391–499. Anand, Origin and Development of the Law
of the Sea, Chapters 4 and 5.
35 Grotius, Commentary, p. 296.
36 Ibid., pp. 296–9. For a discussion of the crucial role of Johore that traces the geographical
facts and political intrigues leading up to and surrounding the capture of the Catarina,
see P. Borschberg, ‘The Seizure of the Sta. Catarina Revisited: The Portuguese Empire
in Asia, VOC Politics, and the Origins of the Dutch-Johor Alliance (1602–c. 1616)’
Journal of Southeast Asian Studies 33, 2002, pp. 31–62.
37 In De iure praedae and in his later texts, Grotius argues for the right to make private
war without explicit state sanction. Whether his theory therefore allows citizens to rise
against their own state remains an open question, but the very terms of this debate
provide a reading of the entailments of Grotius’s thinking that contrast (and possibly
mitigate) the readings of Miéville and Keene.
38 Miéville, Between Equal Rights, p. 210.
39 Grotius, Mare Liberum, Hakluyt (trans.), p. 14. This chapter uses two translations of
Mare Liberum: the translation by Hakluyt, and Mare Liberum, Ralph Van Deman Magoffin
(trans.), The Freedom of the Seas: Or, The Right which Belongs to the Dutch to Take Part in the East
Indian Trade, 1916, New York: Carnegie Endowment for International Peace and
Oxford University Press, printed on my request by BiblioLife Reproduction Series,
2009. The Magoffin translation is accompanied by the Latin text as published in a 1633
edition of Mare Liberum.
40 Grotius, Mare Liberum, Hakluyt (trans.), p. 11. The translation in this edition is provided
by the editor, David Armitage. This chapter is also informed by Vergil, The Aeneid,
29–19 BCE, Sarah Ruden (trans.), New Haven and London: Yale University Press,
2008. In her modern (and often accurately enjambing) translation:

What race is this? What nation would permit

Such outrage? They have thrust us from the beach
With war and yield no stopping place. (p. 16)
And
(. . . through vast seas we’ve come,
To beg a tiny home here for our gods)
A harmless beach. Water and air cost nothing! (p. 151)

Mare Liberum Van Deman Magoffin (trans.) uses John Dryden’s translation of The Aeneid:

What men, what monsters, what inhuman race,

What laws, what barbarous customs of the place
Shut up a desert shore to drowning men,
And drive us to the cruel seas again.
And
To beg what you without your want may spare—
The common water, and the common air (p. 8)
 The poetic ocean in Mare Liberum 203

41 Vergil, The Aeneid, 29–19 BCE. Online. Available <http://www.thelatinlibrary.com/

verg.html> (accessed 1 May 2010).
42 Vergil, The Aeneid, Ruden (trans.), p. 17.
43 Ibid., p. 151.
44 J. Derrida, ‘Step of Hospitality/No Hospitality’, 1997, in Of Hospitality: Anne Dufourmantelle
invites Jacques Derrida to Respond, Rachel Bowlby (trans.), Stanford: Stanford University
Press, 2000, p. 83.
45 Ibid., p. 85.
46 Ibid., p. 107.
47 Derrida centrally generates his ideas from a reading of Greek poets and philosophers,
and particularly from the stories of Oedipus and Antigone. While Greek literature grounds
his argument, he offers a conceptual thesis that is not limited to that tradition.
48 van Ittersum, ‘Introduction’, p. xviii.
49 E. Keene, Beyond the Anarchical Society, pp. 40–60.
50 Grotius, Mare Liberum, Hakluyt (trans.), p. 30.
51 Grotius, Mare Liberum, Van Deman (trans.), Magoffin, p. 28.
52 It is not certain that Seneca was the author of Octavia: E. F. Waitling, ‘Introduction’, in
Seneca: Four Tragedies and Octavia, London: Penguin Books, 1966, p. 38.
53 Grotius, Mare Liberum, prefacing address ‘To the Princes and Free States of the Christian
World’.
54 Seneca (?), circa 62 AD, Octavia, E. F. Waitling (trans.), Seneca: Four Tragedies and Octavia,
pp. 386–87.
55 Grotius, Mare Liberum, Van Deman Magoffin (trans.), p. 24.
56 Seneca, Octavia, p. 272.
57 Ibid., pp. 272–73.
58 Grotius, Mare Liberum, Van Deman Magoffin (trans.), p. 28.
59 Ovid, Metamorphoses, circa 8 AD, David Raeburn (trans.), London: Penguin Classics,
2004, p. 226. Alternative translations in square brackets are from Grotius, Mare Liberum,
Van Deman Magoffin (trans.), p. 28.
60 Ovid, Metamorphoses, pp. 9, 11.
61 Ibid., p. 5.
62 S. Ruden, ‘Introduction’, in The Aeneid, p. viii.
63 Grotius, Mare Liberum, Hakluyt (trans.), p. 25.
64 T. Maunter, ‘Divine Will in Modern Natural Law Theory’, Bulletin of the Australian Society
of Legal Philosophy 26, 1983, pp. 29–84, summarised in Haakonssen, ‘Hugo Grotius and
the History of Political Thought’, p. 48.
65 Haakonssen, ‘Hugo Grotius and the History of Political Thought’, p. 49.
66 Grotius, Mare Liberum, Hakluyt (trans.), p. 11.
67 Ibid.
Chapter 12

Reading law and literature

Three cases for conversation
Robin Lister

Introduction
The legal philosopher’s stone and law’s Holy Grail is the impossible marriage of
law and justice. As with all such quests for, and utopian dreams of, a ‘universal
and unshakably founded . . . ethical code’1 the goal is always deferred, endlessly
out of reach. ‘Justice may turn out to be impossible, just a shibboleth’2 and at the
same time an ‘ultimate romantic hope’.3 It requires deep faith in the endless pos-
sibilities of our shared humanity to hold that profound ambivalence knowing that
even the common law can never ‘work itself pure’.4 The question I want to con-
sider in this chapter is what part, if any, the conversation between law and litera-
ture might play in our conversations about law, ethics and justice. How open can
law be to poetry, claimed by the poets to be the first source of law? Can law admit
poetry in an ethical inclusive, conversational, re-imagining of law or can poetry
merely remind law of its limits and remind us of our responsibility for law and
beyond law? How could law have any sort of conversation with poetry when it is
barely on speaking terms with legal theory, at least of any critical kind?5
Four decades of law and literature scholarship have unearthed a rich vein of
interdisciplinary approaches which have engaged academics and enriched legal
theory without perceptibly affecting law. Seen, mutually, as opposites, judging one
the other and talking past each other, law and literature conventionally inhabit
separate spheres. As institutions and fields of reflection they are irreducibly
different,6 not least because of the familiar distinction that while authors, like their
fictional judges, can only punish ‘in jest’, real judges in real courts make decisions
that affect people’s lives. ‘Legal interpretation’, as Cover famously cautions, ‘takes
place in a field of pain and death’.7 Law is logos and literature mythos.8 Law makes
things happen, poetry does not.9 Law acts as well as speaks.10 While poetry requires
negative capability, law cannot be ‘in uncertainties, mysteries, doubts, without
any irritable reaching after fact and reason’.11 Law must reach determinate judg-
ments, establish boundaries, maintain borders, and draw lines:

The lawyer likes to draw fixed and definite lines and is apt to ask where the
thing is to stop. I should reply it should stop where in the particular case the
good sense of the jury or of the judge decides.12
 Reading law and literature: three cases for conversation 205

Law, then, aspires to certainty, eschews openness, mystery and doubt. This
attitude is captured by Baroness Hale’s anxiety that concurring opinions might
promote confusion:

On the first two issues, Lord Hoffmann’s view is shared by a majority. The
least said by the rest of us who take the same view, therefore, the better. There
should be no doubt, and no room for argument, about what has been decided
and why.13

In other words, ‘We share his view but if we express our agreement we may
say something different’. This concern with the inherent ambiguity of language
discloses law’s fear of polysemy and excess; of too much speech, too much explan-
ation, too many versions, too many meanings.14 But law is always about
argument and doubt, whatever the decision of an appellate or a trial court. No
two cases are the same and we cannot be the same before a single, univocal
law. The illusory grail of justice as universal principle will always remain beyond
law’s grasp.
The more assertively law claims certainty, finality, and truth, the less convincing
its authority appears. It is left, like Auden’s judge, looking down its nose, ‘speaking
clearly and most severely’, asserting that ‘Law is The Law’.15 In the desperate
circularity of that explanation lies law’s melancholic, because of impossible and
profoundly human longing for a foundational, transcendental truth. Law’s dis-
satisfaction with the provisional knowledge that is the only kind available leaves
it ultimately incomplete. Law’s discomfort with the provisional nature of its
authoritative claims, faced with the inevitability of messy contingency and change,
is captured in its anxious relationship to auctoritas, in its perpetual embrace of and
struggle with precedent. This anxiety is shared by law and literature.16 Neither
can escape its antecedents, all texts being commentaries on previous texts, all
making in the shadow of what has gone before. Yet if law’s and literature’s respec-
tive struggles with provenance, interpretation and the canon disclose shared
anxieties about origins, authenticity and textuality, it is law that most desires
the truth it can never have. This melancholy condition is compounded by the
disappointment that we share with and in law.17 While a poem or play or novel
can delight us with its polysemic potential, provide poetic justice, enrich our imag-
inations and make us see the word and the world anew, we do not expect it to
make everything alright. For putting things right, for justice, is surely meant to be
the job of law. However undecidable law must decide.
According to Sidney, following the classical and Renaissance traditions that
poets are the first lawgivers, poetry comes before philosophy, history, logic and
law in all human societies and provides the basis for ‘tougher knowledges’.18 Yet
surely it is poetry itself that provides a tougher knowledge through its ‘acceptance
of contingency and respect for ambiguity’,19 rather than striving for the chimerical
universal principles of philosophy or the reductively generalising rules and prin-
ciples of law. In the three sections that follow I sketch out a conversation that law
206 Law and art: justice, ethics and aesthetics

might have with poetry to supplement the law with that tougher knowledge. In the
first section I consider a case in which a judge introduces the separate order of
poetry and poetic justice as a parergon to his legal text. This brief encounter between
poetry and law highlights the stark distinction between the two institutions and
discourses and poetry’s capacity for ethical complexity and mystery which lie,
necessarily, beyond law. In the second section I consider a novel about a selfish,
adversarial culture and our childish relationship to a solipsistic law.
Here legalism erodes ethical responsibility and self-reliance while a self-preserving
law pursues a frolic of its own, indifferent to its human subjects. In the last
section I consider how a branch of the law of negligence is figured as the hero of
its own story, on a quest for completeness it can never achieve. Here, through
the pervasive and conflicting metaphors of law’s journey and law’s territorial
borders, our judges, perhaps despite themselves, tell a story of the common law’s
troubled soul; a story of the restless search for unattainable universal principles
and justice pressing against the institutional and discursive limits of legal order
and our intractably messy world.
Law’s order is Procrustean not poetic. It necessarily reduces or stretches the
particular to the general. Law cannot tolerate ‘creative freedom and imagination’,20
and engaging law with poetry will not miraculously alter that. But their conversa-
tion may, in a modest way, help law to be less solipsistic and anxious about its
limits, while that same engagement might help us, as law’s subjects, become rather
more grown up about what to expect from law.

Limbo: poetry as supplement to law

Now limbo will be
A cold glitter of souls
Through some far briny zone.
Even Christ’s palms, unhealed,
Smart and cannot fish there.21

On 18 March 2009 in the High Court of Justice, Sir Ross Frederick Cranston
read out his judgment in a case where three asylum-seekers sought judicial review
of their temporary admission status under United Kingdom immigration and
asylum law. He began as follows:

In Seamus Heaney’s well-known poem ‘Limbo’, he speaks of limbo as being

‘a cold glitter of souls’. The claimants in this judicial review, two Palestinians
and one claimant of Eritrean and Ethiopian ancestry, contend that by
the decision of the Secretary of State for the Home Department . . . they are
effectively in limbo.22

Over the 56 paragraphs of the reported judgment that follow, the judge sum-
marises the claimants’ stories of their origins and arrivals in the UK, sets out the
 Reading law and literature: three cases for conversation 207

applicable legislation and his reading of the authorities which have applied it, and
decides that he cannot make an order for the claimants. He concludes:

Temporary admission is a harsh regime. Although it may not be Seamus

Heaney’s ‘cold glitter of souls’, the claimants have been subject to a depriv-
ation of rights as a result of their temporary admission. That has continued
for a considerable period. However, that is the legislative regime. As a matter
of law, I cannot find that temporary admission, in the circumstances of these
claimants, is unlawful.23

The law, after all, is the law. Yet the line from Heaney’s ‘Limbo’ frames the
judgment, poetry enclosing law. What are we to make of the judge’s turn to poetry
to evoke the legal and human limbo in which the law leaves the claimants? The
‘harsh regime’ of temporary admission means that they are stateless and status-
less, jobless, forced to live in dispersal sites on minimal or no benefits and subject
to numerous humiliations and restrictions on the little freedom they have left.24
Is the judge’s appeal to poetry’s higher truth, suggesting an empathy with the
particular experiences of the claimants which the application of the legislation
disallows? Or is Heaney drafted in as a mere rhetorical embellishment and the
judge’s way of telling us that, although he has to deal out law’s cruel cards, he has
a cultural hinterland and he’s got poetry as well as law in his judicial soul?
Whatever Cranston’s intentions, the use of Heaney’s line to frame his judg-
ment, acts as a brief parergon, poetry supplementing law.25 The line of poetry
mediates between judge and counsel and his other readers (but not, perhaps,
between judge and claimants, whose unmediated voices are not heard),26 between
the inside and the outside of the legal story, at once emphasising law’s finality and
incompleteness and, perhaps, the judge’s awareness of, and discomfort with, law’s
institutional and ethical limits. This poetic framing does not justify and explain the
law in the way that Plato’s Athenian suggests (poetic) preambles to the texts of law
should act as persuasive prefaces to ‘the law pure and simple’.27 Nor does it directly
contest the law in the sense that the poem cannot be used as an authority to
overrule the inflexible interpretation of our immigration and asylum legislation by
the House of Lords.28 A judge who wishes to remain a judge clearly could not
directly engage in his judgment with the ethical complexity of Heaney’s poem.29
As the claimants are not granted leave to enter the UK as a matter of law, and
therefore must remain as legal shadows under conditions of enforced destitution
as a matter of fact, so poetry is left at the borders of the legal text, neither granted
leave to enter nor, once cited, fully shut out.
Cranston’s judgment therefore does not reflect on Heaney’s poem; on a
mother’s dreadful, tender drowning of her new-born which has no leave to enter
a priest-ridden society ruled not by Christ’s law of love but by something closer to
Dante’s Minos who stands in terrible judgment at the gate between Limbo and the
second circle of Hell.30 There is no explicit comparison of the claimant asylum-
seekers to pagans, or unbaptised infants whose souls glitter coldly in the briny zone
208 Law and art: justice, ethics and aesthetics

of law’s limbo where Christ does not fish. Nor does the judge compare our society
to that of the poem’s Ballyshannon; our asylum law and politics to a law and
politics that could make an infant illegitimate and drive a desperate woman to
infanticide. Law’s authorities are not ‘Limbo’ or Inferno but the cold rules of our
immigration and asylum legislation and the decisions of the courts which enforce
an inhumane and self-defeating policy of enforced destitution as a means of
driving failed asylum-seekers out, sometimes to suicide. Nevertheless, in citing
Heaney’s poem, Cranston invokes the ethical complexity of our and law’s rela-
tionship to the claimants. He takes the platitude of the claimants’ argument that
they are ‘effectively in limbo’ and refers us to Heaney’s ‘cold glitter of souls’.31 This
forces us to look beyond the platitude as the moral ambiguity of the poem touches
the judgment and leaves it marked. This does not mean that the claimants’ stories
are ‘true’ any more than the mother in the poem did not drown her child; such
stories are often impossible to verify or falsify.32 Yet poetry supplements law here
to remind us, perhaps, that this is our law and that ‘temporary admission’ is our
harsh regime. We are, at least vicariously, liable for a law that is the opposite of
hospitality, neighbourliness, and love; a law of exclusion. It is not enough for us to
say with the judge that while this law may be harsh, ‘that harshness has been sanc-
tioned by Parliament’.33 We cannot hide behind law’s rules and look the claimants
in the eye. We must recognise the reality of the ineluctable gap between public
justice and the private justice of imagination and empathy, between the rules of
law and the mystery of poetry. By citing ‘Limbo’ the judge has invited us to reflect
on a realm of justice that lies beyond the law. So there is an engagement here in
law’s appeal to the obiter authority of poetry’s tougher knowledge.

A novel preamble to the law

As the common-law trained reader might expect, William Gaddis’ 1994 novel,
A Frolic of His Own,34 is one long conversation between literature and law.35
This Shandean satire about selfish, consumerist, compensation culture and its
solipsistic law consists largely of broken dialogue through which the protagonists
talk at and past one another. The novel’s fractured narrative is interpolated with
fictional legal texts and further disrupted by a series of long extracts from the main
protagonist’s fictional play. Most of the novel’s characters are, or are about to be,
suing or being sued in variously absurd games of litigation that no one ever really
wins, as law’s promise of closure is perpetually broken by appeals, fresh litigation
and unenforceable orders. Gaddis’ novel depicts a world in which people turn
their backs on poetry’s tougher knowledge and their responsibility for each other
and for law.
As the novel closes its anti-heroic central character, Oscar Crease, son and
grandson of judges, untenured and reluctant college history teacher, southern
gentleman poet manqué, and serial litigant, appears to win his copyright action
against the producers of a Hollywood blockbuster about the Civil War. Oscar
claims that the film is substantially based on his play; the play through which he
 Reading law and literature: three cases for conversation 209

hopes to honour his grandfather, assert his identity as artist and worthy son and
grandson, and earn his father’s love. Oscar’s legal victory however is at least triply
Pyrrhic: his compensation turns out, like the Jarndyce estates, to have been
exhausted by costs, creative accounting and other lawsuits; his father’s, Judge
Thomas Crease’s, secret and decisive contribution to Oscar’s legal success turns
out to have nothing to do with faith in or love for his son, as Oscar mistakenly
thought, but only with love for the law (559); worse still, the judgment in Oscar’s
favour entirely ignores the artistic merits, as Oscar sees them, of his play. Oscar
depended on the law to vindicate his idea of himself as a human being and artist,
to justify, as his half-sister Christina puts it, his ‘whole desperate pose as the gentle-
man poet, the last civilised man’ (398). Both father and law fail him. Even the
heroic family saga on which his play is based turns out to have been a lie to
conceal a tale of family shame (557–8).
In an elegant reading Tony Sharpe suggests that ‘two principle aspects of this . . .
novel [are] of law as waste, and of art as possible redemption’36 and that for Gaddis
‘artists who resort to law are acting in bad faith’.37 There is more than a sense in
the novel that all who turn to law for validation and justification are acting in bad
faith, to themselves and to others. Oscar, for example, as his corporate-lawyer
brother-in-law Harry observes, has failed to get his ‘longwinded play about his
grandfather . . . about somebody seeking justice’ published or performed. Instead
of persevering, or writing better plays, he blames ‘the world out there for rejecting
who he thought he was’ and wants to be. Blaming the world for his failure, Oscar’s
legal action, like his play, ‘is not about injustice it’s about resentment’ (398).
Redemption or fulfilment for the artist and individual must be sought through
imagination and self-reliance; we should not, like children and like Oscar to his
father, look to law to make everything alright.
Oscar’s desire for justice, for justification and recognition through the law, is
the desire of all litigants who, as Christina puts it, wish to be taken by others ‘as
seriously as they take themselves’ (11). Incapable of self-reliance and of looking to
relationships, work, community or art for validation, Oscar looks to law not just
for money but for ‘order’; to be given his rightful place in the world through the
measure of recognition that money as a yardstick brings. In the face of the random
and unfair contingencies of life litigants seek, according to a rare intrusion by a
narrator’s voice:

. . . the historic embrace of the civil law in its majestic effort to impose order
upon? Or is it rather to rescue order from the demeaning chaos of everyday life
in this abrupt opportunity . . . to be taken seriously before the world . . . like that
woman intending no further than Far Rockaway suddenly lofted to landmark
status by Justice Cardozo in Palsgraf v. Long Island Railway [sic] . . . (29)

But law is not redemptive as Mrs Palsgraf found38 and Gaddis’ novel, as the
title indicates, is a story about the evasion of responsibility for oneself and others.
Instead of a social or legal principle of care, neighbourliness and love derived from
210 Law and art: justice, ethics and aesthetics

the Good Samaritan and the Sermon on the Mount, the preambles to our modern
law of negligence,39 the novel depicts a world of Pharisaic selfishness:

. . . if everyplace you looked here wasn’t ridden with mistrust you wouldn’t
have one lawyer for every five hundred people mostly can’t afford one
anyway, whole country conceived in competition rivalry bugger they neigh-
bour, the whole society’s based on an adversary culture what America’s all
about . . . (485–6)

The corollary of this selfish conception of justice and childish dependency on

law in A Frolic of His Own is a solipsistic law which looks out for itself. For Oscar’s
father, nonagenarian judge Thomas Crease, ‘the law was the only thing that was
alive for him people were just its pawns’ (487). This living law, through its legal
operatives, ignores its pawns’ appeals for justice pursuing its own legal and linguis-
tic ends. As Judge Crease puts it in the course of his sarcastic instructions to the
jury in the fictional case of Fickert v Ude, citing his legal hero Holmes,40 the law is
not concerned with its human subjects’ subjectivity: ‘It does not attempt to see
men as God sees them, for more than one sufficient reason’ (429). Looking to
law for justice is a hopeless expectation for law’s business is not justice, just the
law (11, 285). This law, like the human protagonists from which it stands aloof, is
on a frolic of its own. This law’s business is precisely to validate and justify itself,
to maintain its own authority, discourse and linguistic order inviolate above the
‘demeaning chaos of everyday life’.
A Frolic of His Own depicts a society in which people too readily resort to law to
avoid the moral mirror. Legalism erodes ethical responsibility and self-reliance.
Moreover, our childish dependency on law reinforces law’s own solipsistic ten-
dency. Far from imposing order on or rescuing order from the messiness and
mystery of life this law encourages its subjects to compound the ‘adversary culture
what America’s all about’: ‘The book almost suggests that in proliferating civil
actions American citizens are perpetuating a series of individualized civil wars . . .’41
We should not, then, turn to law to escape from life’s messiness, from the oddities,
absurdities and mysteries of the everyday. Nor would such an escape or the
possibility of such a sterile and sterilising law be a good thing, however theoret-
ically comforting.42 ‘Acceptance of contingency and respect for ambiguity do not
come easy’43 but Gaddis shows us that we must turn to poetry, not law, for that
tougher knowledge which can re-enchant the world. Law, as the poet might have
said, cannot bear very much contingency.

Negligence cases: law for law’s sake

I turn, finally, to cases in the common law of negligence, whose foundational ethic
and text that we should love our neighbours becomes in tort that we should not
harm those for whom we are responsible according to the law. Here in this field of
private justice, far from the crude politics of immigration and asylum regulation,
 Reading law and literature: three cases for conversation 211

might we not, pace Gaddis, expect to find law at its most hospitable to reflective
rather than determinate judgment, open to compassion, humanity, and doubt; to
poetry indeed? Surely here there is the potential for the kind of open, grown-up
exploration of our legal responsibility to others, as Manderson, following Levinas,
suggests.44 Surely here law need not be on a frolic of its own but can truly be the
servant of its human subjects, a student of the other and not just its teacher.45
Perhaps we can at last embrace the possibility of what Manderson celebrates in
representing common law as ‘a discourse and not a machine’, having in common
with ethics the ‘truth’ that ‘both are necessarily explorations, discursively open
and normatively incomplete’.46
We have to dream but we cannot look to law to do the work of poetry. We
should not expect too much from law. At appellate level at least, where the multi-
plying plot-lines in the saga of negligence have been mapped out, the central
protagonist of the common law story of negligence remains the law itself. A few
individuals may, like the unfortunate Mrs Palsgraf, have been ‘lofted to landmark
status’ in the pantheon of common law, but often only to be caricatured as pau-
pers and pregnant fishwives while the judicial gaze moves swiftly from such lowly
human subjects to the lofty general categories of law. Law’s order is Procrustean,
not poetic, after all.
The overarching narrative of the common law story of negligence has been
an epic tale of the struggle between law’s quest for justice and law’s fear of
invasion, of openness, of lack of boundaries and excess. On the one hand judges
have told a story of law’s quixotic progress towards an impossible ideal of the
‘complete logical definition of the general principle[s]’.47 On the other hand,
judges have acted as border guards for law, determined to protect its discursive
integrity by jealously maintaining its boundaries against rogue precedents and
new ideas.48
Let us take the recent English appellate story of that branch of negligence con-
cerned with psychiatric injury (formerly known as nervous shock) as a paradigm
case. Chapter by chapter, in a confusion of conflicting tropes, it is the illocutionary
law that disposes; the law that advances and retreats, draws lines, gives or with-
holds damages, judges, recognises claims, adopts formulae, achieves a measure of
certainty, avoids catastrophes, pursues justice, maps law’s path and fixes its bound-
aries. Figured geographically and physiologically by the House of Lords in
McLoughlin v O’Brian,49 the common law as hero must be kept ‘alive, flexible and
consistent’50 by its judicial physicians,51 who must ‘resist the temptation to try . . .
to freeze the law in a rigid posture’ while knowing where to fix law’s ‘boundary
line[s]’.52 The common law’s borders are guarded, its life sustained, its journey
guided by the judges who, as common law’s biographers, trace its journey as they
both lead and follow it along.
One such biographer, Lord Wilberforce, claims that this law’s development is
scientific, its traditional progress from case to case one of ‘logical necessity’,53
a ‘process of logical progression’,54 of syllogistic reasoning supported by argument
from analogy, which is ‘a natural tendency of the human and the legal mind’.55
212 Law and art: justice, ethics and aesthetics

In the Court of Appeal, however, Stephenson LJ had reported law’s struggle

between logic and common sense,56 and even Wilberforce concludes that the
existing law is fenced in by policy limitations, derived from ‘the common law
process’, represented by ‘indications, imperfectly sketched, and certainly to be
applied with common sense’.57
In the same case Lord Scarman openly acknowledged law’s problem with
universality, determinacy and justice:

In some branches of the law, notably that now under consideration, the
search for certainty can obstruct the law’s pursuit of justice, and can become
the enemy of the good.58

Deploying the same tropes of law’s quest, territory and body, Scarman admits
the court’s decision breaks new ground. The law, to do justice in particular cases,
must sometimes be content with half knowledge but negative capability is for
poetry and not for law. In entering new territory it is common law principle that
‘at each landmark stage . . . has beckoned the judges on’ to a metaphysical place
‘untrammelled by spatial, physical or temporal limits’.59 But, says the judge,
common law principle may be a siren call, not ‘socially desirable’.60 The spectre of
the floodgates opening to an uncontrollable rush of negligence claims seeking
asylum – or is it economic opportunity? – haunts our common law. And here is
law’s dilemma. It cannot be poetry, fully open to contingency and ambiguity, so
that its conception of justice is necessarily two-dimensional.
It should have come as no surprise then that less than 10 years after McLoughlin
v O’Brian was decided, common law’s journey through the territory of negligence
and psychiatric injury appeared to come to an end in the next case to reach the
House of Lords, Alcock v Chief Constable of South Yorkshire Police.61 Prior to Alcock the
metaphors of common law’s quest for justice and territorial expansion across
shifting boundaries had continued to flourish.62 Where common law principle had
continued to beckon the judges on in the High Court and Court of Appeal, the
House of Lords in Alcock decided that a line must be drawn and the journey had
to stop. Law cannot operate as poetry, cannot sacrifice certainty in the pursuit
of justice to any great extent. As Lord Hoffmann acknowledged seven years later,
in the second of the major Hillsborough cases, law cannot deal with too much
difference since being ‘fair’ means treating all the same:

Consequently your Lordships are now engaged, not in the bold development
of principle, but in a practical attempt, under adverse conditions, to preserve
the general perception of the law as system of rules which is fair between one
citizen and another.63

English common law’s unpredictable journey in this story had come ‘within a
hair’s breadth’ of reaching a different destination in McLoughlin v O’Brian had a
slight change of personnel ‘set the law on a different course’.64 That it retreated,
 Reading law and literature: three cases for conversation 213

in Alcock, is recognised by Hoffmann in a polymorphous metaphor which shifts

the journey decisively away from the linear progression of Bingham’s ‘onward
march’ over the land of boundary lines, stepping stones and maps.65 ‘The search for
principle [had been] called off.’66
Remarkably in White the court openly recognises the ‘imperfect reality of the
way the law of torts actually works’; the arbitrary nature of who gets compensated
and who does not.67 With the quest for the grail of principle abandoned, the law
must, argues Hoffmann, align itself with the views of ‘ordinary people’ as to what
is fair in an imperfect world. As Lord Steyn puts it:

In an ideal world all those who have suffered as a result of the negligence
ought to be compensated. But we do not live in Utopia: we live in a practical
world . . . This results, of course, in imperfect justice but it is by and large the
best that the common law can do.68

Conclusion
What may seem a bathetic end to law’s quest for justice in the story of nervous
shock rather reflects judicial realism in the face of life’s messiness and ethical
complexity. There can be no perfect solutions, no universal and well-founded
principles to cover every case, to relieve us of our own moral responsibility.
As Bauman puts it, ‘we will be never sure where such solutions are to be found;
not even whether it would be good to find them’,69 since they would sterilise
life’s mystery. The ‘imperfect justice’ that is ‘the best the common law can do’ is
the only kind available in law. For poetic justice we must look to poetry. The
tougher knowledge that poetry teaches may yet inform a grown-up relationship
with law and temper our expectations of it. As a human institution law is at
once necessary, relatively insensitive (to particularity and difference) and incom-
plete. Poetry cannot complete law. It would seem fanciful to suggest that
judges should use poetic parerga as a matter of course. However, poetry can
teach an ‘acceptance of contingency and respect for ambiguity’ that might
guide us to a more modest, realistic and less deferential expectation of, and rela-
tionship to, law. This might help put law in its properly subordinate place and
encourage a more modest law and lawyers. To that extent we should encourage
poetry, to intrude on law’s tendency to solipsism. Law is not waste but however
sophisticated and evolved, it remains a relatively closed discourse which cannot
make sense and order from the messy, chaotic and sometimes horrific chaos
of reality. In the Hillsborough cases, Alcock in particular, we may wonder what
the claimants sought from law. Was their wish for justice for punishment, for
money or to bring their loved ones back to life (all things we might all want)?
It would be crass to say, ‘Let them read poetry’ or ‘let them engage with drama,
music, art’. But law can have no answer in such cases and might do well to
acknowledge this. Perhaps law, like many litigants, needs poetry’s tougher know-
ledge after all.
214 Law and art: justice, ethics and aesthetics

Notes
1 Z. Bauman, Postmodern Ethics, Oxford: Blackwell, 1993, pp. 9–10.
2 C. Douzinas and R. Warrington, ‘“A Well-Founded Fear of Justice”: Law and Ethics
in Postmodernity’, Law and Critique, 2 [1991], 115–131 at p. 131.
3 See the discussion of Rorty and Derrida in I. Ward, ‘Bricolage and low cunning: Rorty
on pragmatism, politics and poetic justice’, Legal Studies, 28 [2008], 281–305 at p. 296.
4 Lord Mansfield, Omychund v Barker, 1744, 1 Atk. 21, 33; 26 ER 15, 23.
5 Judges seem to like Dworkin, unsurprisingly, since Dworkin’s enterprise is a justifica-
tion of what judges do, a sophisticated development of declaratory theory, but I have
found no critical theorists of any stamp get mentioned in English law reports.
6 Although they both be jurisprudences; see P. Goodrich, Law in the Courts of Love: Literature
and Other Minor Jurisprudences, London: Routledge, 1996.
7 R. Cover, ‘Violence and the Word’, Yale Law Journal 95 [1986], 1601–1630 at p. 1601.
8 See, for example, M. Aristodemou, Law and Literature: Journeys from Her to Eternity, Oxford:
Oxford University Press, 2000; P. Goodrich, Languages of Law: From Logics of Memory to
Nomadic Masks, London: Weidenfeld and Nicolson, 1990, p. 269; A. Pottage, ‘The
paternity of law’, in C. Douzinas and P. Goodrich (eds.), Politics, Postmodernity and Critical
Legal Studies: The Legality of the Contingent, London: Routledge, 1994, p. 150.
9 W. H. Auden, ‘In Memory of W.B. Yeats’ in W.H. Auden: Collected Shorter Poems
1927–1957, London: Faber and Faber, 1969, p. 141.
10 On the dual constative and performative aspect of legal judgments see Douzinas,
‘“A Well-Founded Fear of Justice”: Law and Ethics in Postmodernity’, op. cit., p. 116.
11 John Keats in H.E. Rollins (ed.), The Letters of John Keats, Cambridge, MA: Harvard
University Press, 1958, vol. 1, p. 193.
12 Lord Macmillan, Bourhill v Young [1943] AC 92 at 110.
13 OBG Ltd v Allan [2008] 1 AC 1, para 303.
14 On the danger of ‘speaking too widely’ and of ‘rhetoric’, according to a Justice of the
High Court of Australia, see J.D. Heydon, ‘Limits to the powers of the ultimate appel-
late courts’, Law Quarterly Review, 122 [2006], 299–425 at p. 418.
15 ‘Law Like Love’ in W.H. Auden: Collected Shorter Poems 1927–1957, op. cit., at p. 154.
Compare Fortescue J, ‘Sir, the law is as I say it is, and so it has been laid down ever
since the law began; and we have several set forms which are held as law, and so held
and used for good reason, though we cannot at present remember that reason.’; 1458,
YB 36 Hen VI 25 b-26, cited in P. Goodrich, ‘Oedipus Lex: Slips in interpretation and
law’, Legal Studies, 13 [1993], 381–395 at p. 394.
16 For the anxiety in literature see the work of Harold Bloom; for example, H. Bloom, The
Anxiety of Influence: A Theory of Poetry, New York: Oxford University Press, 1973.
17 On English common law’s melancholy aspect and tradition see Goodrich, ‘Oedipus
Lex: Slips in interpretation and law’, op. cit.
18 Philip Sidney, An Apology for Poetry, 1581, in G. Shepherd (ed), London: Nelson, 1965.
The notion of poets as legislators is of course most famously formulated by Shelley in
his Defence of Poetry, 1819, drawing closely on Johnson’s version of the idea in The History
of Rasselas, Prince of Abissinia, 1759, in G. Tillotson and B. Jenkins (eds.), London: Oxford
University Press, 1971, p. 29.
19 Bauman, Postmodern Ethics, op. cit., p. 34 and see the discussion of Richard Rorty in
Ward, ‘Bricolage and low cunning: Rorty on pragmatism, politics and poetic justice’,
op. cit., p. 290.
20 C. Douzinas and L. Neads (eds.), Law and the Image: The Authority of Art and the Aesthetics of
Law, Chicago: University of Chicago Press, 1999, p. 1.
21 Seamus Heaney, ‘Limbo’, in Seamus Heaney: Selected Poems 1965–1975, London: Faber
and Faber, 1980, p. 90.
 Reading law and literature: three cases for conversation 215

22 The Queen on the Application of Rabah, Woldemichael & Sadah v Secretary of State for the Home
Department [2009] EWHC 1044 (Admin), para 2.
23 Ibid., para 58.
24 See, for example, S. York and N. Fancott, ‘Enforced destitution: impediments to return
and access section 4 “hard cases” support’, Journal of Asylum and Nationality Law, 22
[2008], 5–26.
25 On the deconstructive framing of ‘works’ by other discourses, developing Kant’s term
parergon, see J. Derrida, Dissemination, B. Johnson (trans.), London: The Athlone Press,
1981 and La Vérité en Peinture, Paris: Flammarion, 1978.
26 On how asylum-seekers’ voices are lost in translation in more ways than one see Douzinas,
‘“A Well-Founded Fear of Justice”: Law and Ethics in Postmodernity’, op. cit.
27 Plato’s The Laws, London: Dent, 1960, Book 4, pp. 184–185. See the discussion by
S. Chaplin, The Gothic and the Rule of Law, 1764–1820, Basingstoke: Palgrave Macmillan,
2007, pp. 27–30, where she argues that Plato’s Athenian goes further in representing
‘poetic, mythic, marginal discourses as necessary to the creation and justification of
law’; p. 28.
28 R (Khadir) v Secretary of State for the Home Department [2006] 1 AC.
29 As Justice Breyer recognises, poetry cannot replace legal authority (at least not in law)
in Plaut v Spendthrift Farm Inc 514 US 211, 131 L. Ed. 2d 328 (1995). For a discussion
of the citation of a line from Robert Frost’s poem ‘Mending Wall’ in that case see
K. Dolin, A Critical Introduction to Law and Literature, Cambridge: Cambridge University
Press, 2007, pp. 1–16.
30 The Divine Comedy of Dante Alighieri, I, Inferno, J.D. Sinclair (trans.), London: Oxford
University Press, 1971, Canto V, pp. 70–72.
31 Dolin, A Critical Introduction to Law and Literature, op. cit., pp. 1–16, contrasts the way in
which Justice Scalia (in Plaut) cites the words ‘good fences make good neighbours’
from Robert Frost’s poem ‘Mending Wall’ as authority to support the clear boundaries
separating constitutional powers. Unsurprisingly, perhaps, Justice Scalia cites this
well-known proverb entirely ignoring the context and point of the poem which inter-
rogates the proverb. Justice Breyer, on the other hand, is sensitive to the poem’s far
more complex meaning.
32 Douzinas, ‘“A Well-Founded Fear of Justice”: Law and Ethics in Postmodernity’, op. cit.
33 Lord Brown in R (Khadir) v Secretary of State for the Home Department [2006] 1 AC, para 34.
34 W. Gaddis, A Frolic of His Own, London: Penguin, 1994. Page references to the novel are
incorporated in my text.
35 The quaint catchphrase, first articulated by Baron Parke in Joel v Morison, 1834, 6 Car.
& P., 501, 503; 172 ER, 1338, 1340, famously punctuates the common law narrative of
employers’ legal liability for the consequences of their employees’ negligence.
36 T. Sharpe, ‘(Per)versions of Law in Literature’, in M. Freeman and A. Lewis (eds.),
Law and Literature: Current Legal Issues Volume 2, Oxford: Oxford University Press, 1999,
108–112 at p. 109.
37 Ibid., p. 111.
38 For an extended account of the background and aftermath to the case and the unhappy
tale of Helen Palsgraf, see W.H. Manz, ‘Palsgraf: Cardozo’s Urban legend?’, Dickinson
Law Review, 107 [2003], 785–844.
39 According to Lord Atkin in Donoghue v Stevenson [1932] AC 562, 580.
40 The figure of Oliver Wendell Holmes looms over Gaddis’ novel like ‘a brooding
omnipresence in the sky’. As the pre-eminent jurist of his day, friend of poets and
philosophers, and son of a leading poet, in Holmes’ own genealogy poetry sires law in
a proper imitation of the traditional historical relationship between the two institutions.
In the novel, of course, this order is reversed. In the case of Oscar and his father a
solipsistic law sires bad, self-serving poetry in the form of Oscar’s play.
216 Law and art: justice, ethics and aesthetics

41 Sharpe, ‘(Per)versions of Law in Literature’, op. cit., p. 110.

42 Bauman, Postmodern Ethics, op. cit., p. 31.
43 Ibid., p. 34.
44 D. Manderson, Proximity, Levinas, and the Soul of Law, Montreal: McGill-Queen’s University
Press, 2006, p. 200.
45 Ibid., pp. 142–145.
46 Ibid.
47 Lord Atkin, Donoghue v Stevenson [1932] AC 562, 580.
48 Ibid., Lord Buckmaster, 566–578. For discussion, see R. Lister, ‘A Review of The Gothic
and the Rule of Law, 1764–1820 by Sue Chaplin’, Law and Humanities, 1 [2007], 239–247
at p. 239.
49 McLoughlin v O’Brian [1983] 1 AC 410.
50 Ibid., Lord Scarman, 430.
51 Compare Gaddis, A Frolic of His Own, op. cit., in which Judge Crease applies bandages to
the injured body of the law with his brief in Oscar’s appeal; p. 559.
52 Lord Bridge in McLoughlin v O’Brian, [1983] 1 AC 410, 443 (and Stephenson LJ in the
Court of Appeal, [1981] 1 QB 599, 616).
53 Ibid., 419.
54 Ibid.
55 Goodrich, ‘Oedipus Lex: Slips in interpretation and law’, op. cit., p. 389, mocks this
claim to logic (as he does more extensively elsewhere): ‘Only the common law dares to
opine somewhat mystically that analogy is the “natural tendency of the human and
legal mind’’.’ One might add that the distinction between the human and the legal
mind is telling in itself.
56 McLoughlin v O’Brian [1981] 1 QB 599, 605.
57 McLoughlin v O’Brian [1983] 1 AC 410, 423.
58 Ibid., 430.
59 Ibid., 430–431.
60 Ibid.
61 Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.
62 Bingham LJ provides an expansive example in Attia v British Gas Plc [1988] QB 304,
320.
63 White v Chief Constable of South Yorkshire Police [1999] 2 AC 455, 511.
64 Ibid., 502.
65 Ibid., 503. For Bingham’s ‘Onward March’, see Attica v British Gas Plc [1988] QB 304,
320. For a more recent metaphor of the story of negligence as a series of battles in a
long war, see Lord Walker in Customs and Excise Commissioners v Barclays Bank plc [2007] 1
AC 181, para 69.
66 White v Chief Constable of South Yorkshire Police [1999] 2 AC 455, 511.
67 Ibid., Lord Hoffmann, 504.
68 Ibid., 491.
69 Bauman, Postmodern Ethics, op. cit., p. 31.
Chapter 13

Copyright activism as art

Aesthetics, ideology and ethics
Jaime Stapleton

Art as critical transcendent

Art has often claimed to transcend moral, legal and political frameworks.
Eighteenth- and nineteenth-century Romanticism took the ancient notion that
some art practices could not easily be explained by reference to pre-set rules and
fashioned from it the notion of Genius, a figure who either breaks the rules or lives
entirely beyond them. Early-twentieth century avant gardists regarded challeng-
ing the ruling social order as axiomatic of advanced artistic practice. Under the
aegis of post-modern ‘criticality’, transgression was rendered ever more literally
as an artistic practice. The identity of contemporary art is grounded on a view of
itself as a fluid, experimental space situated at a distance from formal rules, social
convention and moral censure. From its perspective, the ‘law’, whether an ethical
system or the statutes of nation states, presents comparatively rigid boundaries
against which art establishes its own self-identity. Against this broad, historical
backdrop, a new aesthetic paradigm has come to the fore in recent discussions of
so-called Free Culture.1
The aesthetic of ‘abundance’ claims to mark a generational shift in attitudes to
creativity, personal relationships and the role of the state in political economy. In
the absence of law, it is suggested, a natural abundance of creativity flowers, result-
ing in rapidly falling costs, forcing the price of cultural items to progressively move
toward zero. Legal regulation is said to distort creativity, misallocate resources,
impede growth and inhibit sharing practices that underpin all human relation-
ships. The abundance paradigm rejects the notion that unregulated markets are
prone to failure or that they under-produce socially or culturally important items.
Law in general, and copyright law in particular, are pictured as authoritarian
impositions, relics of the rule of antiquated nation states. In their place, abun-
dance promises a self-organising, stateless, ethical-aesthetic built on ‘free’ digital
networks.
Despite claims to a ‘new’ era, this chapter argues that the abundance para-
digm’s claims are merely a blend of mid-twentieth century Austrian School
economics, Virginia School management, and right-libertarian social theory,
applied to the cultural field; political nostrums that have always claimed to be
218 Law and art: justice, ethics and aesthetics

immanent in social relations and transcendent of all alternative forms of political-

legal organisation.

Activism as art
For a decade or more, a trend towards political engagement has been notable in
contemporary art. In part, ‘the political’ represents a desire for authenticity and
commitment; a reaction against the dominance of postmodernist relativism of the
ironic nineties, expressed in the need to ground art practice in concrete social
experience. In part the tendency takes inspiration from a generational activism
that grew up at the turn of the millennium in response to tensions caused by
economic globalisation.
The tendency to political commitment can move with the grain of art-as-critique,
but equally, it has the potential to move against the grain of art as open-ended
experiment. Questions have also arisen in respect of how genuine and widespread
this political tendency is, whether it is merely a fashionable position within the
meaning-making networks of the contemporary art world, or whether politics is
merely hip ‘subject matter’ encased in more traditional strategies of art making.
Into this complex milieu, political activism has sometimes been presented as
art. This has been particularly true in respect of digital media. Here argument has
raged as to whether artistic strategies designated by terms ‘new media art’ and
‘intermedia’ art represent engagement with digital technologies, or with the con-
texts such technologies enable, or with new political movements they appear to
have engendered. The Free Culture Movement, that has coalesced around the
Creative Commons copyright licensing system, claims all three positions. Though
it comprises a spectrum of attitudes to copyright and legal systems per se, a
significant section of the movement now pitch arguments against copyright in
relation to the new aesthetic of abundance. The inclusion of Piratbyrån (or Pirate
Bureau) in Manifesta 7 in 2008 was a striking example of both the presentation of
activism-as-art and of the new aesthetic of abundance.
Until their inclusion in Manifesta the anti-copyright activists of Piratbyrån
were best known, as they themselves suggested, ‘for starting up The Pirate Bay’
(TPB). At the time of the exhibition, TPB were, on the Bureau’s own estimation,
‘the world’s largest torrent tracker’.2 Their inclusion in a significant art biennial
coincided with the run-up to the infamous Pirate Bay trial. Peter Sunde, co-
founder of TPB and one of the trial defendants, suggested that the move ‘kinda
shows that we’re more than just a site, that we’re an idea, and that we’re art in
ourselves. As I’ve said many times before, we see The Pirate Bay as some sort of
ongoing art project/performance.’3
Piratbyrån’s project entailed driving a bus from their base in Stockholm to the
exhibition site in Trentino, Italy. The bus was intended as a physical (as opposed
to digital) ‘information hub’, and was the location of a ‘Guerrilla Music Swap
Party’ held during the exhibition. The party aimed to explore what happens
when an ‘online-based community is enacted within a delimited physical space’.4
 Copyright activism as art: aesthetics, ideology and ethics 219

Thus participants in this temporary, ‘nomadic laboratory’ were invited to examine

how ‘digital abundance can be interconnected with time and space’.

From the post-modern copy to abundance

The discourse of ‘abundance’ now crops up with increasing regularity in the dis-
course of copyright reformers, copyleft and anti-copyright activists.5 Abundance
makes two significant claims with respect to creativity. First, were it not for
the ‘artificial scarcity’ created by copyright, copies would be naturally abundant.6
Second, as a corollary of removing that regulatory control, there will be a surge in
human creativity.
The notion of liberating the copy and the free play of signifiers is not new in
art theory. In the 1960s, poststructuralist critiques of Romantic and Modernist
hermeneutics attacked the notion that meaning could be pinned on authorial
intention or located within a unique and original art object.7 Rather meaning was
a function of the relationship between an unknowable number of readers and
any particular work of art. Liberated from ties to authorial intentionality and the
borders of the art work, meaning became abundant.8 In the early 1980s, art
critic Rosalind Krauss staked her definition of postmodernism on an analysis of
‘appropriation art’ – a practice that moved debate from the ‘free play of signifiers’
and toward copyright infringement.9 In a hugely influential analysis, Krauss
identified Modernism with the gendered subject space of male genius and genius
with the patriarchal law of copyright.10 As the legal privileging of gendered
notions of originality and authorship subsided, Krauss suggested postmodernism
would offer a new era of artistic freedom grounded on an ‘endless repetition’ of
‘a fluidity of copies’.

Abundance as anti-copyright
At first sight, anti-copyright activist rhetoric about abundance appears to be little
more than a restatement of 1980s critical theory. However, the concept of
digital abundance has a rather different root.11 That root is apparent in a lead
essay written for Cato Unbound by Rasmus Fleischer, that appeared contempora-
neously with Manifesta 7.12 Fleischer is a central figure in Piratbyrån. His essay
targeted attempts by US legislators to make internet service providers responsible
for policing the activities of illegal file sharers.13 However, in the course of that
argument, Fleischer provided a clear view of the political and economic ideas
that inform the new aesthetic of abundance. Fleischer’s essay argues that the
attempt to build ‘a digital simulation of 20th century copyright economy’ is
leading to an escalation of regulation that threatens civil liberties.14 There must
be no retreat, he suggests, from the ‘new paradigm of abundance to the old
paradigm of scarcity’.15 In consequence, his essay recommends that legislators
should accept a more ‘laissez-faire attitude regarding software development and
communication infrastructure’.16
220 Law and art: justice, ethics and aesthetics

In picturing scarcity as the ‘old’ paradigm, and fingering copyright as main-

taining privilege, the argument is at one with postmodernist rhetoric. However, in
place of a new aesthetic order predicated on a feminist aesthetic of fluidity,
Fleischer depicts the ‘new’ in terms of a freer market capitalism. With the dead
hand of state intervention removed, copies will become naturally abundant. With
that ensured, Fleischer suggests all that remains is to supply ‘a context where
people can come together to create meaning out of abundance’; a rather different
question from that posed by postmodernism’s liberation of meaning from the
intentions of authors and the confines of objects or texts.17
This approach to cultural practice is derived from the well-established busi-
ness model of free and open source software (FOSS) production.18 That model
argues that copyright is inappropriate to software production, and that copies
of software should be freely distributed. In that environment, economic value
lies in what cannot be copied. Typically, a FOSS business might give software
away for free, but charge for technical support. In Fleischer’s cultured version
of this model, meaning, rather than money, is made from the abundance of
copies.
The attempt to apply the principles of FOSS to culture has been underway for
nearly a decade under the aegis of the Creative Commons (CC) project.19 Inspired
by that system and the writings of Lawrence Lessig, a Free Culture Movement has
grown up. Adherents range from those deploying CC licensing, through various
alternative forms of ‘open content licensing’, to copyright abolitionists. The notion
that the organisational model of some software businesses can provide a general
paradigm for cultural organisation has become axiomatic within the movement.20
Fleischer’s suggestion that the ‘digital world poses questions whose answers can’t
remain in the digital sphere’ is characteristic of the belief that the new digital-
aesthetic paradigm supplies a general blueprint for governing economic, social
and cultural relations in all contexts. Thus his Cato essay identifies a ‘key challenge’:
how to connect the paradigm of digital abundance to ‘that which is not digital:
time, space, human relationships’.21

Abundance as economics
On the subject of abundance, Fleischer makes a call to authority, citing an essay
by Kevin Kelly, the founding editor of Wired.22 Kelly’s ‘Better Than Free’ presents
arguments familiar to anti-copyright activism – the internet is a copying machine;
business skills relating to intellectual property are irrelevant; value exists in that
which cannot be copied – and supports claims about abundance by referencing
citing another of Kelly’s essays: ‘Technology Wants To Be Free’.23
In ‘Technology Wants To Be Free’ Kelly makes the ideological root of aesthetics
of abundance even more clear. He puts the central thesis thus:

Over time the cost per fixed technological function will decrease. If that function
persists long enough its costs begin to approach (but will never reach) zero.
 Copyright activism as art: aesthetics, ideology and ethics 221

In the goodness of time any particular technological function will exist as if it

were free.24

As prices fall towards zero, Kelly argues, they become ‘too cheap to meter . . .
too close to zero to even keep track of’.25 Abundance makes copies worthless. The
empirical evidence for this general claim is that ‘there has been a downward trend
in real commodity prices of about 1 percent per year over the last 140 years’. ‘For
a century and a half’, Kelly suggests, ‘prices have been heading towards zero’.26
The price trend Kelly is referring to is the Prebisch-Singer hypothesis, which,
nearly sixty years ago, detected a downward trend in the real price for basic
commodities. Kelly cites his evidence of the effect to an International Monetary
Fund (IMF) staff paper written in 2002 by Paul Cashin and C. John McDermott.27
But it is a curious citation.
Cashin and McDermott are development economists concerned by the effect
of falling real prices. Developing countries are typically dependent on a few pri-
mary commodities for their export earnings. Falling real prices present serious
problems for developing countries.28 The aim of Cashin and McDermott’s paper
was to improve attempts to ‘stabilize the macroeconomic effects of movements in
prices’ for commodity-dependent countries.29 Having reviewed the evidence and
confirmed the downward trend, they concluded that it was not as important
as ‘rapid, unexpected, and often large’ fluctuations in price which have ‘serious
consequences for the terms of trade, real incomes, and fiscal positions of commodity-
dependant countries, and have profound implications for the achievement of
macroeconomic stabilisation’.30
At best, the world’s poorest countries derive less real income from primary
commodities than they used to. At worst, their real incomes are subject to severe
fluctuation. Neither scenario is good news. Yet Kelly celebrates. A one per cent
annual fall in real commodity prices means, according to Kelly’s economics, that
all prices are inevitably heading towards zero.31 To flesh out this argument
Kelly attempts to link the downward trend in real prices for primary commodities
to examples of hi-tech products that have become cheaper over time. But, none
of the loss leaders, service bundling and price point maintenance strategies he
mentions support his interpretation of the IMF paper.32

Law as death, abundance as life

It is reasonable to ask what ideological perspective would lead Kelly to celebrate
macroeconomic instability in the world’s poorest economies as a harbinger of a
future socio-economic utopia. Progress toward zero pricing is, he suggests, driven
by the fact that networked technology brings us ever closer to perfect competition
and perfect markets.33 Digital technology makes free markets ever more efficient
‘squeezing fluff out of the system’, pushing prices relentlessly down.34
To explain the era of abundance that is just around the corner, Kelly deploys
an extensive, and very illuminating, metaphor that parallels death and life with
222 Law and art: justice, ethics and aesthetics

entropic and extropic systems, and entropic/extropic systems with the dichotomy
of scarcity and abundance.35 Scarcity and entropy are duly equated with death,
and abundance and extropy with life. From these parallelisms, the chief claim for
the new paradigm of abundance is made.

Made things favor not the entropic regime of high prices, but the extropic
realm of the free. Eternal expensive scarcity is unnatural and unsustain-
able, while the abundant free is the ideal home for all things created.
The technium conspires to guide manufactured items towards the free, where
they can unleash their maximum good. The free, not the costly, is the true
home of technology. Technology migrates in this direction because of
the self-reinforcing, self-creating aspect of the free.36

In this biblically flavoured capitalism, scarcity is a figment of the death drive.

Left unregulated, the life-force of free market capitalism will ensure that all prices
eventually approach zero: natural abundance will deliver heaven on earth.
The concept of abundance cited by Fleischer is then a general organising
principle that pits life, in the shape of free market capitalism, against death, in the
shape of state regulation. Market regulations, such as copyright, are un-natural.
Indeed, they are on the side of death. The notion that markets might fail and thus
require remedial legislation – a principle policy justification of copyright – is
regarded as absurd. Abundance makes the case every Austrian School economist
applauds: markets only fail when they are regulated. To be anti-copyright, is
to be on the side of life; which is to be in favour of an unregulated, free market
capitalism.

Abundance as creative strategy

This explanation of abundance is not the aberrant opinion of one writer. Kelly
cites the inspiration for ‘Technology Wants To Be Free’ to Chris Anderson.
Anderson is the current editor of Wired, indicating something of a generational
agreement amongst editors of that journal, past and present. Anderson’s recent
book Free, in fact goes much further than Kelly in elaborating the cultural implica-
tions of the abundance.
Free proceeds from the assertion that, in the digital era, the cost of copies is low
enough to round down to zero.37 Consequently we must change our scarcity
mindset and embrace abundance. To do so entails two consequent shifts. First, we
must become more accepting of waste. Scarcity, Anderson argues, makes us fear-
ful of waste, and that stymies human creativity. Freed from that fear of destroying
scarce resources, our creativity can be given free rein.38 Second, in the old cultural
economy of scarcity, judgements about quality were critical to the success or fail-
ure of cultural and media businesses. An executive elite made those judgements on
behalf of everyone else. In the era of abundance, they are relieved of the power to
control ‘us’. In the era of ‘Free’, individuals make their own aesthetic judgements,
 Copyright activism as art: aesthetics, ideology and ethics 223

choosing from the abundance of content files available, in a way that reflects their
preferences, rather than choices made for them by cultural gatekeepers.

Abundance as ideological strategy

This view of judgement is not new. It should be familiar to anyone acquainted
with Cold War political ideologues such as Friedrich von Hayek or Kenneth
Arrow. Arrow’s ‘impossibility theorem’ purported to prove mathematically that
democratic systems are incapable of representing the true preferences of their
citizens.39 Governments make judgements in the name of something they call the
‘public interest’. But, Arrow argued, notions of the public interest and democracy
were a sham. The only mechanism capable of representing an individual’s real
desires was the free market, which could map and satisfy untold numbers of indi-
vidual preferences on a daily basis. On this view, state intervention in markets is a
restriction on individual freedom. Anderson’s picture of abundance builds directly
on Arrow, envisioning public sector and large corporate bureaucracies as institu-
tionally stupid, and no match for the ‘collective wisdom’ of millions of individual
market choices. Arrow’s theorem was itself prefigured in Friedrich von Hayek’s
theoretical essay, ‘The Use of Knowledge in Society’, which pitted the ‘collective
wisdom’ of many individuals making separate, self-interested decisions in a free
marketplace against the centralised decision-making process of a communist,
centrally-planned economy.40 Hayek’s anti-leftist account of knowledge in turn
built on neo-classical economics – an ideology specifically formulated in opposi-
tion to the growing labour, socialist and communist movements of the nineteenth
century.41
When considering creative abundance, it should be remembered that the far
right of political economy have always claimed that self-interested, competitive
individualism is both immanent in human society and transcends any alternative
forms of legal and political organisation that might arise from social relations – a
conceptual schema inherited from Christian theology. It should be no surprise to
find such claims transferred to the cultural field, that itself has something of a
history of claiming immanence and transcendence on its own account.
However, the immediate history of abundance in the precepts of Austrian and
Virginian schools of political economy is also puzzling. Neo-classical economists
differentiated themselves from their predecessors precisely by confining their
analysis to the optimum allocation of scarce resources among alternative uses
under the conditions of static equilibrium.42 On that basis, abundance would
appear diametrically opposed to prevailing neo-classical doctrine, and thus ‘new’.
The puzzle resolves itself when one recognises that abundance is not intended
as a new principle of economic science, but as a rhetorical principle.43 Like the
neo-classicism it draws on, abundance appears to be designed to defuse demands
for the redistribution of wealth.44 However, whereas neo-classical economics
addressed an academic audience, abundance is designed to address a popular,
digital audience.45
224 Law and art: justice, ethics and aesthetics

In the putative world of abundance, left/right politics – built on arguments

over scarcity – disappear. Abundance promises an era when all prices approach
zero, a utopia with no need of idiotic (left wing) governments, who might attempt
to redistribute wealth. Exposed to this ideological construction an audience may
be dissuaded from believing that political action is required to redress the socio-
economic inequalities of capitalism. Under its sub-principles of open, non-
judgemental aesthetics and guiltless creative waste, some may be weaned from
left-leaning politics (the redistribution of wealth by regulation of national econ-
omies) and others from green politics (the regulation of the market to address
environmental externalities). The message of the aesthetic is simple. Unregulated
markets will bring about the end of inequality and environmental degradation.
Nothing must be done to prevent nature from taking its course. None of which is
‘new’; it has been the approach of every market fundamentalist since the late
eighteenth century.46

Abundance as rhetorical strategy

The rhetorical technique deployed in the abundance paradigm is straightforward.
Abundance is an enthymeme – part of a strategy that aims to make an audience
believe that they have arrived at a pre-set conclusion through their own effort.
This strategy is based loosely on logic.
In formal logic, a deductive sequence typically has three parts: a major and minor
premise and a conclusion. The major premise is a universal principle. The minor
premise is a particular case, often an observed fact. The conclusion is deduced from
the relation of one to the other. For a few thousand years, students of logic have
learned: all humans are mortal; Socrates is a human; thus Socrates is mortal. The
enthymeme operates by, at first, reversing the logical order. The speaker decides
what conclusion is to be proved, and works back through the sequence to locate a
minor and major premise capable of leading the audience to that conclusion.
In this case of abundance, the desired anti-leftist conclusions are that state reg-
ulation of markets is undesirable and the redistribution of wealth is unnecessary.
The minor premise is the fact that market regulation and the redistribution of
wealth are based on an assumption of scarcity. Therefore a major premise must
be found which contradicts that notion. The major premise must be a principle
the audience is highly likely to agree on. To this end, it should be a pleasing one.
It should also be reasonable and have a ring of truth to it. There is no point in
choosing a principle that is likely to be disagreed with on the basis of fact.
Once a suitable principle has been chosen, it must be deployed in general
discourse as frequently as possible and supported with pleasing narratives. In
working the enthymeme, the speaker must not let the audience understand they
are being manipulated by a rhetorical strategy. Therefore, supportive stories
should be made to appear to come from more than one source. Through casual
repetition the speaker (or campaign) aims to establish the principle as an obvious,
axiomatic truth – a description of the world as it really is.
 Copyright activism as art: aesthetics, ideology and ethics 225

Copies are abundant. And, who could deny it? And who could dislike abundance?
Abundance banishes scarcity, and scarcity sounds bad. Therefore attempts to
address the problem of scarcity are absurd, and possibly evil.47 Thus, where abun-
dance becomes accepted as a self-evident truth, policies for regulating markets
and redistributing wealth are made to appear perverse and authoritarian. From
this perspective, the material ins and outs of the copyright debate are largely
irrelevant. Copyright is merely a floating signifier to be filled with content, with
meanings, established elsewhere. Concern about file sharing is merely the means
by which that intended meaning is broadly communicated.

Abundance as Kulturkampf
Few could deny that copyright is not in trouble. However, any popular issue, be it
public housing, drug legislation or file sharing, can be used to promote broader
political ideologies. Copyright, situated at the juncture of cultural, economic and
political action, is a perfect arena for such soft power strategies, and there is a long
history of using art to pull audiences through to ideological conclusions they might
not have reached on their own. Such cultural warfare stretches back to the use of
painting by mendicant religious orders in the fourteenth century and forward
into modern times. During the Cold War, covert political funding supported
intellectuals, journals and exhibitions, helping to establish the notion that the
experimental freedom of abstract expressionism was superior to state-regulated
socialist realism.48 In the digital era, it is again common to hear freedom of expres-
sion positioned as the pre-eminent indicator of a free society. While no one can
doubt that freedom of expression is one of the primary conditions for a function-
ing democracy, it does not, on its own, constitute a free society. Freedom of expres-
sion is not the same thing as equality, or freedom from poverty and exploitation.49
Nor is personal freedom the same thing as social justice or the public good. It is
perfectly possible to have freedom of the individual and a society crumbling
beneath the weight of structural injustice. Rightly, activists put freedom of expres-
sion, individual rights, and new aesthetic and social developments at the centre of
the copyright debate. However, it is necessary to pay close attention to the way
such arguments are shaped and the purpose they are put to. They can never be
neutral. The term abundance may be used wittingly or unwittingly, but, in origin,
it is an ideological principle. The principle references a simple observation: digital
copies multiply easily. But, that observation does not support the ideological
principle. Rather the principle deploys the observation in a larger campaign to
entrench unregulated free market capitalism as a cultural paradigm.

Capitalism just wants to be free

The relation of art and law permits many discursive arrangements. Modern
copyright purports to circumscribe all forms of creative practice within the law.
There is also a strong tradition, particularly acute in the visual arts, that claims for
226 Law and art: justice, ethics and aesthetics

art the potential to transcend, the duty to critique, and take pleasure in transgressing,
all law wrought by human minds, whether moral, customary or statutory in
nature. Those claims, however, have also been made for markets. From a discur-
sive perspective, one arena can easily be used to pursue the claims of the other.
In the Cold War, abstract paintings were called as witnesses to the political
freedoms of the West. Today, the open, free, creative aesthetic of abundance is
called on to promote a more feral, less regulated global capitalism; a capitalism
that is beyond the law of nation states; a capitalism that just wants to be free.
The culturisation of this debate conceals much about the reality of the current
copyright problem. Abundance disingenuously depicts copyright as a war between
individual file sharers and powerful corporate interests.50 It is a myth that legisla-
tors also seem inclined to accept. The truth is somewhat different. There is an
ongoing war to control, and profit from, cultural materials. In this war, the share-
holders of copyright industries are head-to-head with those of new technology
businesses – ISPs, search engines, hardware and software manufacturers. One
corporate interest sells the citizen a product that does one thing; the other
sells them a product that does the opposite. The problem with copyright is
business-to-business, not business-to-citizen. The attempt to pitch the problem
in terms of the individual-versus-corporation is a fiction that suits particular
interest groups. It suits those self-consciously promoting a less controlled, more
radical, capitalism. But it also suits a generation of politicians who are ideologi-
cally disinclined to intervene in a war between rival corporate factions waving the
flag of more business-to-business regulation. However, it also exposes a flaw in
their ideology.
The notion that the judgements of democratic and judicial processes (the rule
of law) are always inferior to preferences expressed through market mechanisms
(the rule of markets) is a central plank of the neo-liberal ideology. Ironically,
getting ‘governments and law makers the hell out of markets’ is an ideological
reflex inherited from neo classical economics and social and public choice theory;
the very theories that inform the aesthetic of abundance.51 When markets fail, as
they often do due to inadequate regulation, as they are doing in relation to digital
copyright, the true face of this ideology is revealed. Where ideology dictates
that freedom per se is inscribed at its utmost in the freedom of markets, any legis-
lative remedy for market failure cannot be permitted to fall on the market itself. In
a supreme irony, individual citizens are made to take the blame for the failures of
the copyright system, and it is the citizen, rather than the corporation, who now
faces the brunt of new legislation. At a stroke, the notion that freedom per se finds
its utmost expression in freer markets is exploded. The reality of laissez faire is, as
always, more freedom to business, less to the citizen.

Notes
1 Free Culture is a movement defined by its critical rejection of the prevailing system of
copyright law.
 Copyright activism as art: aesthetics, ideology and ethics 227

2 According to Piratbyrån’s press release (accessed June 2009 InterActivist Network http://
lists.interactivist.net). Since The Pirate Bay trial of 2009, Piratbyrån has made strenuous
attempts to publicly disassociate itself from TBP.
3 Interview at: www.torrentfreak.com/pirate-bay-summer-tour-2008. Sunde continued
this line during the trial (where he was co-defendant): ‘It’s not defending the technol-
ogy, it’s more like defending the idea of the technology and that’s probably the most
important thing in this case – the political aspect of letting the technology be free and
not controlled by an entity which doesn’t like technology.’ Report by Jemima Kiss, The
Guardian 17th February 2009.
4 Press release accessed June 2009 InterActivist Network (http://lists.interactivist.net).
5 There are differences between ‘copyright reform’ and ‘anti-copyright’ and ‘copyleft’
groupings, and between the political left and right within such groupings. ‘Reformers’
typically seek shorter copyright terms, the expansion of fair use/dealing, and limits on
scope. ‘Anti-copyright’ groupings are abolitionist. ‘Copyleft’ is deployed by Free and
Open Source Software (FOSS) developers in distinction to proprietary (copyrighted)
software – it does not (necessarily) denote a left wing orientation.
6 On a naïve level this assertion is true. However, it takes no account of the realities of
market failure, competition and natural monopoly that create scarcity.
7 Modernist criticism located meaning in the text or art object, as opposed to
Romanticism’s concern for authorial intention.
8 This position was particularly associated with French poststructuralism, and, in par-
ticular, R. Barthes’ ‘Death of the Author’ (first published 1967), in Image – Music – Text,
trans. Stephen Heath, Glasgow: Fontana, 1977.
9 R. Krauss, ‘The Originality of the Avant Garde’ (1981) in R. Krauss, The Originality of
the Avant Garde and Other Modernist Myths, London: MIT Press, 1986. Krauss built on a
persistent misreading of Barthes’ essay (op cit). A good example of the misreading can be
found in Sherrie Levine’s artist statement for Style, Vancouver, 1982. (Reprinted in C.
Harrison and P. Wood (eds.), Art in Theory, London: Wiley Blackwell, 2002, pp. 1066–
1067.) Levine’s work was at the centre of Krauss’s analysis of appropriation art.
10 A strikingly similar (though unconnected) analysis was made by M. Woodmansee in The
Author, the Artist and the Market: Rereading the History of Aesthetics, New York: Columbia
University Press, 1994.
11 Abundance is the most recent term to be deployed in opposition to scarcity. Richard
Stallman’s GNU manifesto (1985) looked towards a ‘post-scarcity world’. Kevin Kelly’s
pre-dot-bomb classic New Rules for the New Economy, London: Fourth Estate, 1998, pitted
‘plenitude’ against scarcity, pp. 39–49.
12 www.cato-unbound.org/2008/06/09/rasmus-fleischer/the-future-of-copyright. Cato
Unbound is the online organ of the right wing think tank, the Cato Institute.
13 These proposals are contained in the US Anti-Counterfeiting Trade Agreement
(ACTA). On 20th November, 2009, the UK government published its Digital Britain
parliamentary bill. In addition to warning letters from ISPs, individual file sharers face
the possibility of temporary suspension of their accounts. The bill also contains a con-
troversial ‘statutory instrument’ allowing the Secretary of State to quickly amend (with
little debate) the Copyright, Designs and Patents Act (1988) in light of new technological
developments. For recent comment on ISP enforced copyright in France see Jeremy
Phillips, ‘Three Strikes . . . and then?’, Editorial, Journal of Intellectual Property Law and
Practice, 2009, Vol. 4, No. 8.
14 Fleischer op. cit.
15 Ibid.
16 Ibid. In effect, Fleischer presents the business interests of ISPs as entirely coextensive
with the internet. Attempts to regulate ISPs are a threat to civil liberties. However,
he rightly highlights the vague definition of an ISP in the US Digital Millennium
228 Law and art: justice, ethics and aesthetics

Copyright Act, suggesting that just about anyone could be defined as an ISP and asked
to become a ‘copyright enforcer’. Surprisingly, given its political orientation, the
‘Reaction Essay’ on behalf of Cato, by T. B. Lee (one of its adjunct scholars) seemed
almost left wing in recognising the need from market regulation.
17 Ibid.
18 This approach began with GNU’s free software project in 1983, led by Richard
Stallman. GNU released the General Public License (GPL) in 1989, a copyright licens-
ing system aimed at facilitating collaborative production of software by ameliorating
the negative effects of copyright using contract law.
19 The creative commons system was inspired by the GPL.
20 For the application of FOSS to social and cultural life see: R. A. Ghosh (ed.), CODE:
Collaboration and Ownership in the Digital Economy, London: MIT Press, 2005. For informa-
tion on open content licences, see L. Liang, Guide to Open Content Licences, Rotterdam:
Piet Zwart Institute, 2004. For a critical take on Free Culture see Matteo Pasquinelli,
Animal Spirits: A Bestiary of the Commons, Rotterdam: NAi Publishers, 2008.
21 Fleischer, op. cit.
22 Fleischer says: Kevin Kelly ‘has recently captured it well: When copies are superabun-
dant, they become worthless, while things which can’t be copied become scarce and
valuable.’ The quotes are from Better Than Free available at: www.kk.org/thetechnium/
archives/2008/01/better_than_free.
Posted 31st January 2008.
23 www.kk.org/thetechnium/archives/2007/11/technology_want.php. Posted 4th
November 2007.
24 Ibid.
25 Ibid.
26 Ibid.
27 P. Cashin and C. J. McDermott, IMF Staff Paper, International Monetary Fund, 2002,
vol. 49, no. 2, p. 175.
28 Ibid., p. 176.
29 Ibid., p. 176.
30 The authors came to three conclusions. 1) Trends in real commodity prices are
highly volatile. 2) Knowing the historical trend growth rate ‘is of no practical policy
relevance’. 3) Long-run trends in real commodity prices are small in comparison
with annual variability in prices, making short-run movements in commodity prices
highly unpredictable. In short, ‘price variability completely dominates long-run trends.’
Ibid., pp. 187–188.
31 The paper references real, not nominal, prices, and refers to primary commodities, not
all commodities. Kelly’s account recognises the difference between real and nominal
prices, but displays no understanding of what it might mean in terms of the balance of
trade between rich and poor countries.
32 Kelly never mentions that falling real prices mean falling real incomes for developing
countries. Nor does he mention economies of scale, labour market deregulation and
outsourcing in relation to price falls. It is hard not to agree with the incredulous com-
ment posted on Kelly’s blog by business consultant Brendan Dunphy: ‘Wow, this dumb
article is the technology equivalent of those marketing missives that are festooned with
hot buzzwords of the day and make no coherent logical sense.’ Comments at www.kk.
org/thetechnium/archives/2007/11/technology_want.php.
33 Kelly gives five traits for networked technology: ‘perfect market competition, price
transparency, innovation sharing, collaboration and expanding markets’.
34 Ibid.
35 Ibid.
36 Technium is Kelly’s term for the ‘greater sphere of technology’.
 Copyright activism as art: aesthetics, ideology and ethics 229

37 C. Anderson, Free: The Future of a Radical Price: The Economics of Abundance and Why Zero
Pricing is Changing the Face of Business, London: Random House, 2009. Anderson reverses
Kelly’s supply arguments (abundance of copies makes them worthless) with a demand
version (low prices cause abundance), but such differences are immaterial to propagat-
ing abundance as a socio-cultural principle. The ‘zero cost’ argument is common in
digitally-focussed critiques of copyright. It erroneously assumes that copyright has only
one purpose: to protect a publisher’s upfront investment in producing an addition of a
copyrighted item. In the digital era it is argued, the marginal cost of a copy is close to
zero. Hence, copyright is unnecessary. There is some merit in the argument, but its
application as a general proposition is disingenuous. Marginal cost (MC) is a function
of total costs (TC) of production (i.e. fixed, variable and opportunity costs). MC is the
cost of adding one extra unit of an item to the production run. MC rises and falls in
relation to TC. TC includes reproduction costs (RC) and costs of creating the item
under copyright. Falling RC will lead to falling MC, but creation costs are unlikely to
be as affected. But, it should be remembered that reproduction costs fall on whoever
makes the copy. In the analogue era, the RC fell squarely on the business. In the digital
era, the RC of content businesses falls for two reasons: digital copying is cheaper and
significant parts of the RC (present in the analogue world) are removed from the busi-
ness to consumer transaction in the digital. In analogue transactions, all RC was born
by producers and included in the price paid by consumers. Online, consumers directly
bear a large part of RC – which is effectively external to the transaction with the pro-
ducer. Those RC costs are spread across the consumer’s computer, hardware, software,
printers, paper, ink, online storage systems, ISP fees and electricity. Since this aspect of
RC disappears from the transaction, the producer’s TC and MC falls. Many ‘digital
critiques’ of copyright indiscriminately deploy the falling MC argument. This assumes
all copies are equal and all copying structurally resembles the economic organisation of
analogue businesses, which is clearly not the case in the digital era. MC is a reasonable
concept in analysing analogue businesses, where all units in a production run (e.g. a vinyl
record) are equal. But, applying it across the digital environment ignores material differ-
ences between copies. (A copy on a computer screen entails different costs from those
sustained by saving a file to a storage device, printing it, or burning to CD.) MC for
content businesses may fall, but that does not mean that everywhere the MC of a copy is
‘close to zero’, as is frequently claimed. Nor does falling MC for content industries deliver
a death-blow to copyright. Falling MC provides some justification for cutting length of
copyright term, but is a poor justification for abolition, since falling RC and MC do not
make pre-reproduction costs disappear. Finally, only to certain voices in the ‘law and
economics’ movement is protection for investment the sole purpose of copyright.
38 The sheer implausibility of Anderson’s argument opens him to immediate criticism and
he is often forced to admit defensively that price externalities and environmental costs
might be a problem. However, the point of his book is to move his audience beyond
such consideration. If we rid ourselves of fear, our creativity will create technological
solutions.
39 K. Arrow, Social Choice and Individual Values: Second Edition, London: John Wiley, 1963
(first published 1951). Arrow was a key figure in the development of social and public
choice theory that provides the theoretical backbone of the neo-liberal approach to
governance.
40 F. von Hayek, ‘The Use of Knowledge in Society’, American Economic Review, XXXV,
No. 4, 1945, pp. 519–30.
41 E. Screpanti and S. Zamagni, An Outline of the History of Economic Thought, Oxford: Oxford
University Press, 2005.
42 For discussion, see Screpanti and Zamagni, op. cit, and Dimitris Milonakis and Ben
Fine, From Political Economy to Economics, London: Routledge, 2009.
230 Law and art: justice, ethics and aesthetics

43 Although neo-classical economics reduced economics to a science of scarcity, they did

not invent the concept. Scarcity played critical roles in classical economics (for example,
Ricardo’s account of rent and Mathlus’s population principle); and arguably it can be
traced back to Aristotle’s observations on monopoly.
44 See Screpanti and Zamagni, op. cit., p. 167.
45 In this sense, it has an antecedent in Hayek’s The Road to Serfdom, London: Routledge,
2001 (originally published 1944).
46 For analysis of the roots of market fundamentalism see: K. Polanyi, The Great
Transformation: The Political and Economic Origins of Our Time, Boston: Beacon Press, 1971
(first published 1944). Also see: A. Montagu, Darwin, Competition and Cooperation, New
York: Henry Schuman, 1952 and J. Townsend, A Dissertation on the Poor Law: by a Well-
Wisher to Mankind, (With a Forward by A. Montagu and an Afterword by M. Neuman),
London: University of California Press, 1971 (first published 1786).
47 Put in logical form: major premise: abundance. Minor premise: redistribution of wealth
is a function of scarcity. Conclusion: the redistribution of wealth is meaningless.
48 F. S. Saunders, Who Paid the Piper? The CIA and the Cultural Cold War, London: Granta
Books, 2000.
49 D. Hare makes this point in a speech to the Index on Censorship awards. Extract carried
in The Guardian, 22nd April 2009.
50 Reviews of Manifesta accepted this fiction. Nicholas Lobo suggested that copyright indus-
tries are fighting file sharers who ‘offer a new model in which . . . videogames, political
documents and other semantic expressions of computer code are (. . .) rhizomatically
available (. . .) destroying any financial gain through centralised distribution.’ Nicholas
Lobo, ‘The Pirate Bay go to Manifesta 7’, Artlurker, www.artlurker.com/2008/10.
51 See K. Arrow and F. von Hayek, op. cit.
Chapter 14

Musical performance, natural

law and interpretation
Thomas Irvine

The peasant sings

I begin, in proper legal fashion, by considering the case of a singing peasant:

The appoggiaturas are little notes which stand between the ordinary notes
but are not reckoned as part of the bar-time. They are demanded by Nature
herself to bind the notes together, thereby making a melody more song-like.
I say by Nature herself, for it is undeniable that even a peasant closes his
peasant-song with grace-notes . . . The force of Nature herself compels him to
do this. In the same way the simplest peasant often uses figures of speech and
metaphors without knowing it. The appoggiaturas are sometimes dissonances;
sometimes a repetition of the previous note; sometimes an embellishing of a
simple melody and an enlivening of a sleepy phrase; and finally they are that
which binds the performance together.1

Thus Leopold Mozart begins the ninth chapter of his influential Versuch einer
gründlichen Violinschule (‘Attempt of a Fundamental School of Playing the Violin’)
completed in the winter of 1755/1756, just in the weeks that saw the birth of his
son Wolfgang Amadé. In this key passage, Leopold suggests that any peasant
knows what to do when confronted with a given musical situation, for instance
the joining up of an arpeggiated melody into a stepwise descent. This raises a
question: Who is making the music, singing the song, playing the tune? If
the ‘force of nature’ [Gewalt der Natur] ‘compels [the musician]’ then nature is
emphatically the agent and the musician is not.2
Here Leopold adds his voice to a recurring melody in Western musical thought,
born in ancient Greek music theory and continued through the Middle Ages and
the Renaissance, in which composing and performing are the same thing, both
revelations of musica, that which is always already present. Indeed, for most of
musical history in the West, performance has not always been, strictly speaking,
the ‘re-creative’ act of interpreting a fixed text, as it has overwhelmingly been for
the last century.3 In a wider sense, Leopold’s treatise is less an instruction manual
for the performance of violin music and more the means to the revelation of musica,
232 Law and art: justice, ethics and aesthetics

to which nature inexorably drags us back. For Leopold, music is already ‘there’.
If correct musical performance is an act of giving voice to nature, then faith
in nature’s ‘rightness’ is faith in something, before human action, that we all
have in common. Adorno and Horkheimer—deeply suspicious of what they
regard as the Enlightenment’s totalizing reduction of all forms of knowing to
the numerical—quote Bacon in the opening pages of their Dialectic of Enlightenment:
‘Is not the rule, “Si inaequalibus aequalia addas, omnia erunt inaequalia” (if you
add an odd number to an even one, you get an odd one) an axiom of justice as well
as mathematics?’4 For Leopold, the natural way to sing, and also to embellish
a melody, is just as axiomatic. Although this may be trained—why else would
Leopold offer to teach the public to play the violin with a book?—any training
rests on the foundations of natural ability. To make use of this ability is to add
your voice to nature’s chorus. Leopold’s expression of the ideology of ‘naturalness’
in music is part of his engagement in the Violin School with the conflict between
‘natural’ and the ‘positive’ laws. The German musicologist Carl Dahlhaus put the
problem this way:

One fundamental dilemma [of Enlightenment music aesthetics] emerges

clearly and can be expressed easily in one simple formula: the relationship
between public opinion, which had become a cultural power, but proved to
be unstable, and the traditional rules of art, which many continued to believe
were based in the nature of things and were therefore eternal, became more
precarious as the eighteenth century wore on.5

Dahlhaus reminds us here that the story of Enlightenment music aesthetics

is a story of competing discourses. So in what follows I will explore the contexts
of Leopold’s use of the concept of natural law, contrasting these with notions
that took an opposite tack, by stressing the absolute novelty of artistic creation.
These discourses became a tool for focusing on a new presence, that of the
author, at the expense of an old one, ‘nature’. Finally, I will explore how both
concepts can help us—via the controversy about ‘historical performance
practice’—to understand vital points of contact between contemporary jurispru-
dence and musicology.

The law of nature

Leopold’s words on the appoggiatura echo a classic formulation of natural law in
Cicero’s ‘The Orator’:

Not that the mob knows anything about feet or metre; nor do they under-
stand what it is that offends them, or know why or in what it offends them.
But nevertheless nature herself has placed in our ears a power of judging of all
superfluous length and undue shortness in sounds, as much of grave and acute
syllables.6
 Musical performance, natural law and interpretation 233

The echo of Cicero’s exact wording in Leopold’s text is no coincidence, for

Leopold was by all accounts a learned man, thoroughly familiar with the canon of
Cicero’s writings.7
The ‘natural law’ tradition was born in the works of Plato and Aristotle, who
argued that ‘nature’ can provide an inherent normative basis for human action.8
Roman thinkers, notably Cicero, made ‘natural law’ the centre of their jurispru-
dence. Cicero famously claimed in his Republic that ‘to curtail [natural law] is
unholy, to amend it illicit, to repeal it impossible’.9 Later, St Thomas Aquinas
thought of natural law as a result of divine law, making it possible for power and
justice in the civitas to be rooted both in nature and in God’s will.
If we want to understand Leopold’s approach in a more specifically eighteenth-
century context, we can begin with Chambers’s Cyclopædia, the widely read
reference work that was to serve as the basis for Diderot’s and D’Alembert’s
Encyclopédie.10 Leopold cites Chambers extensively in the chapter on the history of
the violin earlier in the Violin School. In his encyclopaedia, Chambers writes:

NATURE is more particularly used for the established order, the course of
material things; the series of second causes; or the laws which God has
imposed on the motions impressed by him . . . In which sense it is we say,
physics is the study of Nature. Nature makes the night succeed the day;
Nature has rendered respiration necessary to life, etc. Thus St. Thomas defines
Nature as a kind of divine art, communicated to beings, which carries them to
the end they are determined for.—In which sense Nature is nothing else but
the concatenation of causes and effects, or that order and oeconomy which
God has established in parts of his creation . . . Art is said to force or surpass
Nature, by means of machines; in regard these produce effects which exceed
what we find in the common course of things.11

Natural laws—‘the dictates of right reason’, in Chambers’s sense—apply to

individuals and communities. They ‘dictate’ to us how we ought to use our
‘natural’ rights, and how we, as groups, are to behave. Leopold, if his own writings
are any guide, was a strong supporter of natural law theory as applied to the
relationship of language and the emerging political concept of a German nation.
His commitment to the then emerging ‘High German’—a language that defines a
nation ‘naturally’, an idea propounded most famously by the Leipzig professor
Johann Christoph Gottsched—is clear from both the style of the Violin School and
the extensive correspondence about its proofs in the months leading up to its pub-
lication between Leopold and his publisher, the bookseller Johann Jakob Lotter in
Leopold’s native Augsburg.
Like Chambers’s dictionary definition, Gottsched’s ideas about language draws
on a wider sense of innate human capacity—inherent in nature—that requires
formation through education. We associate these ideas with the influential writ-
ings of John Locke and Thomas Hobbes, who expressed this position in different
ways; Hobbes, of course, was less sanguine about what this innate capacity could
234 Law and art: justice, ethics and aesthetics

achieve without the right education. The point here is not that Leopold was a
‘Lockean’ or a ‘Hobbesian’ thinker; as far as we know he never read a word of
either. But via his extensive citations of Chambers’s dictionary, Leopold took part
in a discourse network in which natural ability preceded individual agency.12
Spelling, for example, was not a matter of individual expression. It was a tool for
subduing ‘private’ languages. Both the Violin School, and Gottsched’s influential
writings, were contributions to a wide discussion about the unification of ‘German’
culture through national languages of art.
Against this background, Leopold’s disquisitions on spelling and grammar in
his correspondence with Lotter take on more significance than they are usually
accorded. Take, for example, his discussion in a letter to Lotter dated 9 June 1755,
of the correct declension of the word ‘Tact’ (meter). Forced to choose between the
phrasings ‘Tact oder musik[alische] Zeitmaß’ and ‘Tacte oder musik[alische]
Zeitmaße’ Leopold, in this case contravening Gottsched, argues for the former,
despite the risk of grammatical inconsistency (according to Gottsched, masculine
words like ‘Tact’ are declined ‘Tacte’ in the ablative, but feminine words like
‘Hand’ remain uninflected).13 Leopold prefers ‘Tact’ because, as he writes ‘the
e sounds very forced to my ears’.14 Leopold does not argue for his spelling by
invoking his right to a personal or private position. He argues for the ablative form
‘Tact’ by claiming that it is more natural.
Leopold’s Ciceronian observation in the opening of Chapter Nine of the
Violin School (the passage that begins this chapter) that ‘the peasant speaks in figures
and endings without knowing it’ shares the ideals (or ideology) of ‘natural’ writing
that lie behind the injunction to ‘write as you speak’. Here, like most of contem-
porary German authors, he follows the principles of ‘natural’ spelling laid out in
the early eighteenth century by the German grammarian Jacob Lachner. As
Jonathan Sheehan has written, Lachner, following Roman authority, ‘made
Suetonius’s “incontrovertible’’ first rule, “write as you speak” (schreibe wie du redest)
into a natural law’.15 For Leopold, similarly, the natural laws of performance are a
transparent series of conventions that make intelligible communication through
musical performance possible. For him the appoggiatura is a symbol without mys-
tery: everyone—even a peasant—should understand it. He places his trust in the
power of ‘right reason’, innate in all of us. This power guarantees the intelligibility
of musical expression.
Leopold’s reference to the pastoral figure of the peasant performer also draws
the attention of the Violin School’s mostly urban readers to ‘Arcadia’, whose inhab-
itants all play musical instruments and all understand what each other are singing.
This happy region of the Classical imagination is an ideal ideological space in
which to project arguments based on natural law. It was also an idée-fixe in
Enlightenment music aesthetics.16 As the German musicologist Peter Schleuning
puts it, ‘The simplicity of the music of the antique or biblical shepherds, which
the pastoral mode fantasizes, is the paragon of a new vision of nature, also
structurally [. . .] The word ‘natural’ elevates the shepherds and their usual sounds
to the exemplars of the music of the Enlightenment’.17 Indeed, the nostalgic
 Musical performance, natural law and interpretation 235

celebration of the pastoral ideal—and the element of political critique that goes
with it, for the Arcadians required no subjugation by absolute rulers—is one major
binding element of the cultures of European urban elites that Jürgen Habermas
described fifty years ago as ‘the public sphere’.18 Like the Enlightened coffee
house, Arcadia is a community in which everyone works towards a common under-
standing of music, and what its performances mean.

The challenge of the individual

The Arcadian musical fantasy was to prove deceptive. As the eighteenth century
drew to a close, many musicians and writers about music began to notice that
there was something intensely individual about performance: indeed, one of the
era’s most famous performer-composers, Leopold’s younger child Wolfgang,
made pursuit of the individual in performance a hallmark of his approach to
composition. Like a tailor, he boasted to his father, he could make an aria fit a
performer’s voice as if it were ‘well-made garment’.19 If a composer tailors music
to the performer’s specific qualities, the kind of systematisation a priori demanded
by an ideal economy of musical communication like Leopold’s becomes a chal-
lenge. Eighteenth-century aesthetic thinkers knew this problem well. Kant attacked
it in the Critique of Aesthetic Judgment, in which nature famously ‘gives the rules to
art’.20 We often interpret this to mean that genius, something special and singular,
something unfathomable in concepts, trumps the rules.21 But isn’t Leopold, by
claiming that any peasant will know how to sing the right way, saying the same
thing, that nature gives the rules to performer? Leopold’s peasant is surely not
Kant’s genius. What happened? In fact, a number of Leopold’s influential con-
temporaries in European musical thought at mid-century were attracted to singu-
larity in music, or the ‘monological’ (‘das Monologische’) as the German
musicologist Laurenz Lütteken has put it.22 Lütteken traces the emergence of a
‘solo voice’ in music that parallels literary discussions of the ode, a literary genre
that was valued for its resistance to conventional and schematic treatment.23 At
the same time, writers on music displayed a growing fascination with musical
machines and automata, objects with which human ingenuity (or ‘art’ in a deeper
sense) might surpass nature, in just the sense of Chambers’s dictionary definition we
encountered above.24
A narrative beckons, made of the opposition between earlier conceptions of
‘natural’ law and the non-laws of individual expression. Many music historians
now argue that musicians, around 1800, left ‘naturalist’ mimetic theories of
musical meaning, that is those that stipulated that music could have specific
meanings based, for instance, on ‘natural’ correspondences between musical
structures and complexes of emotional effects, and embraced the Romantic
idea that music could mean everything and therefore nothing specific.25 In other
words, common, natural and above all rational laws of musical meaning like
Leopold’s were replaced, for the Romantics, by an irrational ‘law unto itself’ that
set music aside as a special communicative practice without specific reference to
236 Law and art: justice, ethics and aesthetics

the natural world. Participants in both discourses made ‘nature’ the centre of their
arguments, notably August Wilhelm Schlegel, who argued as early as 1801 for an
‘organic’ conception in which the work of art no longer imitates ‘outer’ nature but
the product of its own—individual—inner nature.26
If the ‘work’ of art obeys only its inner laws, then its performance by others
ought to obey these too. The inner nature of the ‘musical work’ gives the law to its
performers, not the outer laws of nature. In the matter of the ‘laws’ of musical
performance, then, a different consensus emerges around the turn of the new
century. Those who adhered to it—and as the nineteenth century progressed,
more and more did—believed that it was the musician’s special interpretive duty
to present the individual meaning of each piece of music. Musical performance
becomes a branch of hermeneutics; it feels more like reading. The new disciplines
of performance transfer their faith from nature’s voice to the composer’s.

The laws of ‘historically informed’ performance

Today the doctrines of ‘historical performance’ dominate our approach to the
music of the eighteenth century and the centuries before it. ‘Historical perform-
ance’—a kind of reading—stipulates that we play older music in a manner that
would have been familiar to its composers, by using the instruments for which it
was composed (or informed reconstructions), by performing from texts edited with
the goal of restoring the composer’s original (that we call ‘urtext’ editions) and by
following the instructions on performance found in books like Leopold’s. From
San Francisco to Sapporo, we historical performers add those notes in the falling
third not because nature demands it of us, but because Leopold Mozart—or our
interpretation of his book—told us to.27
We do this in the name of fidelity to the composer’s wishes. Since these are
often opaque, to be ‘historically informed’ we must seek our information in a
complex web of texts. Representatives of the academic discipline of musicology
frequently find themselves in the position of serving as our guides. Thus musicolo-
gists assume a powerful position in an economy of musical production built around
the same binary relationship (composers here, interpreters there) that formed
around the turn of the nineteenth century.
Conflating performance with reading turns out to be dangerous. In his 1995
book Text and Act, the American musicologist Richard Taruskin showed how post-
war musicology, particularly in the United States, had mixed positivist certainty
about music history’s ‘factual’ basis with the conviction that the musician’s (‘legal’)
duty is the preservation of the composer’s ‘original’ voice.28 A group of legal schol-
ars in the United States, led by Sanford Levinson at the University of Texas and
Jack Balkin at Yale noticed Taruskin’s intervention.29 All three observed the par-
allel between ‘intentionalist’ arguments in historical performance and the form of
American jurisprudence known as ‘strict construction’. In both, the ‘original
intentions’ of eighteenth-century ‘authorities’ trump any interpretive insight of
twenty-first-century performers, be they lawyers or musicians. Drawing a not so
 Musical performance, natural law and interpretation 237

subtle connection between conservative legal theorists’ injunctions ‘not to inter-

pret’ and historical performance’s creed to ‘play only what is there’, he argued
that historical performance tells us less about ‘objective’ historical fact and more
about ourselves. The urge to submit to the ‘will’ of the text is a deeply modern
(or ‘modernist’) one.
Taruskin’s interventions were not met with universal enthusiasm. Some
musicians felt personally attacked, and some scholars felt that the value of
his arguments was compromised by his polemical tone: Charles Rosen memor-
ably quipped that Taruskin’s ‘most crushing arguments are often reserved for
opinions that no one really holds’.30 But the measure of Taruskin’s critical
success is the wide acceptance of his views in the discipline. Even the opera
expert Phillip Gossett, whose meticulous approach to editing the texts of canon-
ical nineteenth-century operas has been on the receiving end of Taruskin’s
critique, shares many of his conclusions.31 Both Gossett and Taruskin agree that
musical performance should be judged by its results and not its premises, and
both maintain that the musical practice is not a value-free act. It is always
‘socially mediated’.32

Natural law, interpretation and

the presence of music
The law reacts to, and regulates, human action. The performing musician reacts
to the presence of the musical object. I have explored here how one influential
eighteenth-century musician viewed this presence through the prism of ‘natural
law’, a force more powerful than any author, and how musicians in the gener-
ations immediately succeeding, following wider cultural trends, gradually began
to react to the presence of music in a different way, by yielding to the absent but
nonetheless law-giving voices of ‘author’ and ‘work’. In detail, acts of musical and
legal interpretation surely differ. But there is something strikingly similar about
the recent journeys of Anglophone musical scholarship and jurisprudence, for
musicologists and legal scholars seem to share a network of discourses around
terms like ‘performance’, ‘interpretation’ and ‘natural law’. I conclude with brief
soundings of this convergence.
The first is natural law. No one today would seriously claim, as Leopold did,
that the correct addition of an appoggiatura to a descending third is a matter of
obeying the will of nature, even if there is an echo of the natural law doctrine in
the notion shared by both strict constructionists and some historical performers
that ‘social mediation’ gets in the way of ageless truths. Indeed, against admittedly
strong opposition, the idea of ‘natural law’ retains striking currency in English-
language jurisprudence.33 Hadley Arkes, a conservative American law professor,
even takes up musical imagery in an essay on Cicero’s conception of natural law.
Working from the passage about public taste cited above, and echoing the classical
notion of musica, Arkes writes that Cicero ‘understood that the harmonies of music
and the harmonies of law bore a relation to the harmonies of mathematics . . . [and]
238 Law and art: justice, ethics and aesthetics

that a discordant law was as instantly known and felt by a public of ordinary men
as a discordant note was instantly recognized by a common audience.’34 How
resonant this argument is with Leopold’s, and how hopeful Arkes is about the pos-
sibilities of the consensus attainable through native human reason. Critics are,
rightly, quick to point out all of the ideologies this attitude of hope can conceal,
but it seems to me that the qualities of belief, conviction and faith that natural
lawyers bring to their arguments are precisely those that can make a musical per-
formance convincing and effective. I will return to this point after considering a
second area of convergence between jurisprudence and musicology: the ‘return’
of disciplines of interpretation.
Around thirty years ago critical musicologists began to challenge the disci-
pline’s ‘positivist’ consensus. In the decades immediately after World War Two,
Anglophone musical scholars especially often pursued a ‘non-interpretive’
musicology based on careful excavation of historical sources and the ‘objective’
analysis of musical structures.35 In 1985, Joseph Kerman inaugurated what would
later be called the ‘new musicology’ by calling for a return to a more ‘humane’
programme of research, one oriented towards a productive, open-ended and
interpretive encounter with music. Kerman saw in historical performance the
ideal medium in which to combine history and performance into larger acts of
‘criticism’. He ends the chapter on the subject in his influential book Contemplating
Music with an approving quotation of the pianist Malcolm Bilson, who argued that
‘it is not the sound of the instrument that pushes [historical performance] forward,
but rather the searching for an ever-better interpretation of the music’.36 Kerman
believes that we should all share Bilson’s aim, whatever our branch of the disci-
pline. Kerman implies that these interpretations will improve: the best critics and
performers will offer each generation the best possible answer to the questions
music raises.
Scholars of jurisprudence might find this approach familiar. Around the same
time as Kerman’s intervention, the American legal thinker Ronald Dworkin
likewise challenged a ‘positivist’ consensus in legal studies. Part of this challenge is
built on a careful defence of the act of ‘interpretation’. Dworkin’s interest is not so
much in the relevance of actual authorial intention but with the manner in which
we use our (fluid) idea of creative authority to clarify our relationship with histori-
cal works of art, and by analogy with the law.37 Dworkin’s final goal, like Kerman’s
for musicology, is a community made richer by an ever-unfolding process of
improving interpretation: ‘[Law] aims, in the interpretive spirit, to lay principle
over practice to show the best route to a better future, keeping the right faith with
the past.’38
In other words, the law is an argumentative activity—a series of conversations—
about ever better performance, unfolding through time yet remaining in contact
with the past. Here Dworkin and Kerman join Hans-Georg Gadamer, who,
in a key section of his Truth and Method (1962) proposed that constructivist legal
interpretation can serve as a model for historical research.39 Historians, for
Gadamer, can enter into a ‘conversation’ with history, just as a judge would
 Musical performance, natural law and interpretation 239

with precedent. Both Gadamer and Kerman take for granted the ‘coherence’ of
musical works and jurisprudence, and critically, that interpretation, in the end,
is not a ‘political’ matter. Dworkin likewise imagines the possibility of a produc-
tive discussion, beyond (or in spite of) ideology, about the law in the largest
sense, granting ‘justice’ a kind of autonomy and coherence. Those who chal-
lenge Gadamer, Dworkin and Kerman claim that coherence, a kind of telos, is
itself defined by hidden power relations. The concept of ‘interpretation’, in other
words, can serve to rationalize coercion in the name of some transcendent con-
sensus.
Thus Critical Legal Theory on both sides of the Atlantic proposes that when
law’s power relations are exposed, coherence is exposed as a fiction.40 In literary
studies, challenges to Gadamer run along similar lines; Terry Eagleton calls
Gadamer’s theory of history ‘grossly complacent’.41 For its critics in law and
literature hermeneutics is a utopic, hence dangerous, practice.
Taruskin takes a similar tack. His critiques of historical performance, and the
music-historical enterprise more generally, have come to focus on the word
‘realism’. Once again, his terminology finds an echo in jurisprudence (‘legal
realism’).42 In Taruskin’s musicology, the Realist battles the Romantic, who
believes in the special presence of music (in its works and its performances).
‘Presence and greatness’, he writes, ‘are perceptions, not historical facts, and a
historiography that posits their facticity is Romantic propaganda by definition.
But authority (that is, what perceived and argued presence and greatness confer),
being the product of mediation and acculturation, is one of the most important
facts a Realist historian can—and must—interpret and . . . interrogate.’43
For the Romantic, music’s special presence sets it apart; for the Realist, to set
it apart is to deny its historical reality. The same would be true of a Romantic, that
is to say hermeneutic, jurisprudence. Imagine, in this passage by American eth-
nomusicologist Phillip Bohlman, replacing the word ‘music’ with the word
‘justice’: ‘[musicology’s] imagined escape into a world without politics results from
its essentializing of music itself. This act of essentializing music, the very attempt
to depoliticize it, has become the most hegemonic form of politicizing music.’44
Mutatis mutandis, to essentialize justice by depoliticizing it is ‘the most hegemonic
form’ of politicizing it. In matters of jurisprudence and musical scholarship, then,
the doctrines of natural law and interpretation, which both depend on ‘autono-
mous’ and coherent concepts of ‘justice’ or ‘music’, are themselves (sometimes
hidden, sometimes not) political practices. In the case of musical scholarship—for
example in historical performance practice—these political practices can be, and
often are, instruments for gaining power over others.
We cannot end just yet. In musicology, at least, ‘presence’—Taruskin’s bug-
bear and the source of the tension between the ‘event’ and its interpretation that
is at the heart of this book—has made recently something of a comeback. In a
widely received 2004 essay in the distinctly non-musicological pages of Critical
Inquiry, Carolyn Abbate argued, echoing the French philosopher and musicologist
Vladimir Jankélévitch (also a well-known contributor to legal theory), for what she
240 Law and art: justice, ethics and aesthetics

calls the ‘drastic’ experience of musical performance, as opposed to the ‘gnostic’

one of hermeneutics.45 Abbate’s essay—in which she freely admits her debt to
Taruskin’s critique—is a summary of a long-brewing disciplinary interest in
performance and experience. This interest draws its momentum from, among
other sources, the relative decline in the prestige of the great ‘works’ of
instrumental music and the relative rise in interest in opera, popular music
and recordings, all of which can be defined more by their experience and less
by their texts. As I write these lines, musicologists seem poised to continue the
debate about whether there really is ‘something’ in musical performance, in the
event at the heart of our encounter with music, that sets it apart from other
kinds of experience.46 We would surely benefit by asking our colleagues in legal
studies to join us.
In September 1739 the student of philosophy and jurisprudence Leopold
Mozart was dismissed from the Benedictine University of Salzburg for egregious
absence. He is said to have received the news with ‘indifference’.47 Although
Leopold was not always satisfied with his subsequent musical career, we can
assume that he never regretted his departure from the law. On the other hand,
perhaps it was his legal education in Salzburg that inspired him, at a key turning
point of the Violin School, to invoke the ‘drastic’ presence of natural law, thus begin-
ning to draw a line that started with Cicero, traversed the ordo rerum of medieval
musical thought, and ended in his own hopeful vision of the forces of the musical
‘presence’ we call performance. We can draw the line a little further, crossing the
fields of ‘interpretation’ and returning, in our own time, to striking confluences of
legal and musical thought.

Notes
In this chapter I follow the musicological convention of referring to Leopold Mozart as
‘Leopold’, in order to distinguish him from his son Wolfgang. I wish to thank Wiebke
Thormählen, David Yearsley, Jeanice Brooks, Tilman Skowroneck, Mark Everist, Stephen
Groves and Francesco Izzo for their comments on earlier drafts, and Oren Ben-Dor both
for offering me the opportunity to explore the world of jurisprudence and his attentive
reading. Any remaining infelicities and over-generalizations accrued on the journey
between musicology and legal studies are mine alone.
1 L. Mozart, Versuch einer gründlichen Violinschule, Augsburg: Lotter, 1756, p. 193. This trans-
lation is adapted from L. Mozart, A Treatise on the Fundamental Principles of Violin Playing,
Editha Knocker (trans.), London: Oxford University Press, 1948, p. 166. All other trans-
lations from the German are mine unless otherwise noted.
2 In the eighteenth century writers on music distinguished between ‘required’ orna-
ments like appoggiaturas and ‘optional’ ornaments like some trills: properly trained
musicians were expected to add the former even if they were not notated. See
N. Zaslaw, ‘Ornaments for Corelli’s Violin Sonatas, op.5’, Early Music 14 (1996),
pp. 95–115, at 95–6.
3 See R. Taruskin, The New Oxford History of Western Music, Oxford: Oxford University
Press, 2005, vol I, pp. 16–20. Heinrich Besseler, the mid-twentieth century
German musicologist who studied philosophy with Martin Heidegger, suggested while
 Musical performance, natural law and interpretation 241

developing his influential theory of Gebrauchsmusik (‘music for use’) that some music
was ‘umgangsmässig’ or ‘directly involved’ with its participants. This made it—in con-
trast with ‘eigenständig’ or ‘autonomous’ music—a ‘thing ready to hand’ in the
Heiddegerian sense, and less a matter of personal expression or interpretation.
Constraints of space do not permit further exploration of musical thought in Heidegger’s
circles, although such thought does often take up the idea of ‘music in the world’ in
a manner similar to the way the idea of music in ‘nature’ is adumbrated by the writers
I examine here. See S. Hinton, The Idea of Gebrauchsmusik, New York: Garland, 1989.
Besseler worked out his original definition of Gebrauchsmusik in his article ‘Grundfragen
des musikalischen Hörens’, Jahrbuch der Musikbibliothek Peters 1925, pp. 35–52.
4 T.W. Adorno and M. Horkheimer, Dialectic of Enlightenment, J. Cumming (trans.),
New York: Verso, 1972, p. 7. The original citation is from F. Bacon, The Advancement
of Learning in The Works of Francis Bacon, London: Basil Montagu, vol. II, p. 126.
5 C. Dahlhaus, ‘Das “subjectiv Allgemeine” und die öffentliche Meinung’, Klassische und
Romantische Musikästhetik, Laaber: Laaber-Verlag, 1988, p. 21.
6 M.T. Cicero, ‘The Orator’, quoted in Hadley Arkes, ‘That “Nature Herself Has Placed
in Our Ears a Power of Judging”: Some Reflections on the “Naturalism” of Cicero’,
Natural Law Theory: Contemporary Essays, R.P. George (ed.), Oxford: Clarendon Press,
1992, p. 258.
7 On Leopold Mozart’s intellectual background see Walter Krysig, ‘“Leopold Mozart . . .
a man of much . . . sagacity”: The revival of humanist scholarship in his Gründliche
Violinschule (Augsburg, 1756)’, Music’s Intellectual History, Z. Blažekovi ć and B. Dobbs
Mackenzie (eds.), New York: Répertoire International de Littérature Musicale, 2009,
pp. 43–155; Pierluigi Petrobelli, ‘Leopold Mozart e la “Ausbildung” di Wolfgang’,
Beiträge des Internationalen Leopold-Mozart-Kolloquiums Augsburg 1994 (=Beiträge zur Leopold-
Mozart-Forschung 2), Josef Mančal and Wolfgang Plath (eds.), Augsburg: Wißner, 1997,
pp. 103–4; Eugenia Angelucci, ‘La forma della communicazione nel systema didattico
della “Violinschule” die Leopold Mozart’, Ibid., pp. 107–46; Ulrich Weiß, ‘System und
Methode. Überlegungen zum Philosophischen Hintergrund von Leopold Mozarts
Violinschule’, Ibid., pp. 91–104 and Josef Mančal, ‘Zur “Verfremdung” historischer
Entfremdungsprozesse am Beispiel Leopold Mozarts’, Leopold Mozart. Auf dem Weg zu
einem Verständnis, Wolfgang Plath and Josef Mančal (eds.), Augsburg: Wißner, 1994,
pp. 183–98.
8 The following discussion of natural law theory depends greatly on C. Douzinas and
A. Gearey, Critical Jurisprudence: The Political Philosophy of Justice, Oxford and Portland,
Oregon: Hart Publishing, 2005, especially chapter three (‘Natural Law, Resistance and
Utopia’, pp. 79–106).
9 Cicero, Republic, cited in Ibid., 88.
10 For an introduction to the historical place of Chambers’s Cyclopaedia see R. Yeo,
‘Encyclopedism and Enlightenment’, The Enlightenment World, ed. M. Fitzpatrick,
P. Jones. C. Knellwolf and I. McCalman, London and New York: Routledge, 2004,
pp. 355–65.
11 E. Chambers, ‘Nature’, Cyclopædia; or, an Universal Dictionary of Arts and Sciences; containing
an explication of the terms and an account of the things signified thereby, in the several arts both liberal
and mechanical, and the several sciences human and Divine. The second edition, corrected and amended
with some additions, London: D. Midwinter, A. Bettsworth, 1738, vol. II, s.p. Leopold
cites Chambers in an Italian translation in the Violin School. See Irvine, ‘Der belesene
Kapellmeister’, Acta Mozartiana; 55/1–2 ( June 2008), p. 6–15 at 7.
12 See F. Kittler, Discourse Networks 1800/1900, Michael Metteer with Chris Cullens
(trans.), Stanford: Stanford University Press, 1990.
13 J.C. Gottsched, Grundlegung einer Deutschen Sprachkunst, Leipzig: Breitkopf, 1752,
p. 201.
242 Law and art: justice, ethics and aesthetics

14 Leopold Mozart to Johann Jakob Lotter, 26 June 1755, Mozart Briefe und Aufzeichnungen,
ed. W. Bauer and O.E. Deutsch, vol. I, p. 5. In the end Gottsched prevailed: the
relevant chapter in the Violin School bears the title ‘Von dem Tacte’.
15 J. Sheehan, ‘Enlightenment Details: Theology, Natural History, and the Letter h’,
Representations 61 (Winter 1998), p. 33.
16 See P. Schleuning, ‘Die Pastorale—friedliche Natur: Vier geistliche Beispiele’, Die
Sprache der Natur: Natur in der Musik des 18. Jahrhunderts, Stuttgart: Mezler, 1998, pp. 26–41
and K. Mackensen, Simplizität. Genese und Wandel einer musikästhetischen Kategorie des 18.
Jahrhunderts, Kassel: Bärenreiter, 2000. See also A. Rehding, ‘Eco-Musicology’, Journal
of Royal Musical Association, 2/2002, pp. 305–20.
17 Schleuning, ‘Die Pastorale’, op. cit., p. 31.
18 J. Habermas, The Structural Transformation of the Public Sphere: An Inquiry into a Category of
Bourgeois Society, T. Burger with F. Lawrence (trans.), Cambridge, Mass.: MIT Press,
1989. For a brief introduction to Habermas’s concept of the public sphere in the realm
of culture see T.C.W. Blanning, The Power of Culture and the Culture of Power, Oxford:
Oxford University Press, 2002, pp. 5–14. For a recent musicological view see E. Joubert,
‘Songs to Shape a German Nation: Comic Operas and the Public Sphere’, Eighteenth
Century Music 3/2 (2006), 313–330.
19 In a letter to Leopold from Mannheim on 28 February 1778, Mozart wrote: ‘I like for
an aria to fit the singer like a well-made garment’, Mozart Briefe und Aufzeichnungen, op. cit.,
vol. 3, p. 304. I do not mean to suggest here that Wolfgang’s approach to singers was
something entirely new: trained as he was in the singer-dominated world of the eight-
eenth century, Wolfgang would have found it entirely ‘natural’ to cater to singers
(see R. Strohm, Dramma per Musica: Italian Opera Seria of the Eighteenth Century, New Haven:
Yale University Press, 1997). But in the context of his father’s adherence to natural law
theories of performance, such pragmatism does seem jarring.
20 ‘Genius is the talent (natural gift) that gives the rule to art’, I. Kant, ‘Beautiful Art is Art
of Genius’, paragraph 46 of Critique of the Power of Judgment, Paul Guyer and Eric
Matthews (trans.), Cambridge: Cambridge University Press, 2000, p. 186.
21 See P. Guyer, Kant and the Claims of Taste (Second Edition), Cambridge: Cambridge
University Press, 1997, pp. 355–360.
22 L. Lütteken, Das Monologische als Denkform in der Musik zwischen 1760 and 1785 (=Wolfenbüttler
Studien zur Aufklärung 24), Tübingen: Niemayer, 1995. See also Schleuning, Die Sprache
der Natur, op. cit., pp. 81–5.
23 See M.E. Bonds, ‘The Symphony as Pindaric Ode’, Haydn and His World, E. Sisman
(ed.), Princeton: Princeton University Press, 1997, pp. 131–53.
24 On musical automata see A. Richards, ‘Automatic Genius: Mozart and the Mechanical
Sublime’, Music and Letters 80 (1999), pp. 366–89. See also Richards, The Free Fantasy and
the Musical Picturesque, Cambridge: Cambridge University Press, 2000. On communicat-
ing individual experience in and via music in the late Enlightenment see Christian
Kaden, ‘Aufbruch in die Illusion: Kommunikationsstrukturen in der Musik des spä-
teren 18. Jahrhunderts’, in Des Lebens wilder Kreis. Musik im Zivilisationsprozeß, Kassel:
Bärenreiter, 1993, pp. 140–56 and Sebastian Klotz, ‘Tonfolgen und die Syntax der
Berauschung: Musikalische Zeichenpraktiken 1738–1788’, Das Laokoon-Paradigma:
Zeichenregime im 18. Jahrhundert, I. Baxmann, M. Franz and W. Schäffner (eds.), Berlin:
Akademie-Verlag, 2000, pp. 306–38.
25 For the (still) current version of this narrative as it applies to music, see J. Neubauer,
The Emancipation of Music from Language: Departure from Mimesis in the Eighteenth Century,
New Haven: Yale University Press, 1986. For a short survey in English, see Taruskin,
‘Late Eighteenth-Century Music Esthetics’, Oxford History of Western Music, op. cit., vol. II,
pp. 641–8. Carl Dahlhaus offers a longer account in his ‘‘‘Dschinnistan” oder das
Reich der absoluten Musik’, Klassische und Romantische Musikästhetik, op. cit., pp. 86–159.
 Musical performance, natural law and interpretation 243

See also N. Mathew, ‘Review Article: The Tangled Woof’, Journal of the Royal Musical
Association 134/1 (2009), pp. 133–47, for a survey of recent writings on music and
musical thought ‘around 1800’.
26 For a discussion of Schlegel’s intervention see Dahlhaus, ‘Die Idee des Klassischen und
die Realität der Affekte’ in Klassische und Romantische Musikästhetik, op cit., pp. 47–9.
27 For a general introduction to the historical performance ‘movement’ see B. Sherman,
Inside Early Music: Conversations with Performers, Oxford: Oxford University Press, 1997.
Recent summaries and critiques include J. Butt, Playing with History: The Historical
Approach to Musical Performance, Cambridge: Cambridge University Press, 2002;
D. Leech-Wilkinson, The Modern Invention of Medieval Music: Scholarship, Ideology, Performance,
Cambridge: Cambridge University Press, 2002; P. Walls, History, Imagination and the
Performance of Music, Woodbridge: The Boydell Press, 2003; and B. Haynes, The End of
Early Music: A Period Performer’s History of Music for the Twenty-First Century, Oxford: Oxford
University Press, 2007.
28 R. Taruskin, Text and Act: Essays on Music and Performance, Oxford: Oxford University
Press, 1995.
29 Levinson and Balkin review Taruskin’s book in Notes 53/2 (1996), pp. 419–23. Taruskin
responds to the review in ‘Setting Limits (a Talk)’, The Danger of Music and Other Anti-
Utopian Essays, Berkeley: University of California Press, 2009, pp. 447–64. The best
critical summary of Taruskin’s work, and its impact, is in Butt, Playing with History,
op. cit., pp. 14–24.
30 Taruskin relates many of the objections to his work—portions of which were originally
published as opinion pieces in the New York Times—in postscripts to the essays in Text
and Act. Rosen’s jibe is in ‘The Benefits of Authenticity’, Critical Entertainments: Music Old
and New, Cambridge, Mass.: Harvard University Press, 2000, p. 204.
31 For Taruskin’s disapproval of what he sees as Gossett’s ‘coercive rhetoric’ of composi-
tional authority see ‘Setting Limits’, op. cit., pp. 454–8. Gossett’s counter-critique of
Taruskin’s project is in ‘Scholars and Performers’, Divas and Scholars: Performing Italian
Opera, Chicago: University of Chicago Press, 2006, p. 173. But Taruskin is surprised to
find himself in agreement with Gossett: see ‘Setting Limits’, op. cit., pp. 456–7.
32 Ibid., p. 449.
33 See, for instance, J. Finnis, Natural Law and Natural Rights, Oxford: Clarendon Press,
1980, and G.P. George, In Defence of Natural Law, Oxford: Oxford University Press,
1999. For a strong critique see C. Douzinas and A. Gearey, ‘Natural Law, Resistance
and Utopia’, op. cit., pp. 79–106 and C. Douzinas, R. Warrington with S. McVeigh,
‘Fin(n)is Philosophiae: The Rhetoric of Natural Law’, Postmodern Jurisprudence: The Law
of the Text in the Texts of the Law, London and New York: Routledge, 1991, pp. 74–91.
34 H. Arkes, ‘Reflections on Cicero’s “Naturalism”’, op. cit., p. 259.
35 For an introduction to the upheavals in Anglophone musicology in the 1980s and
1990s, with a bibliography, see A. Williams, Constructing Musicology, Aldershot: Ashgate,
2001. In legal terms musicology’s ‘positivism’ might border on ‘un-critical convention-
alism’ because of the philological method’s dual interest in knowing the ‘facts’ about
a work of art and ‘understanding’ it. The most radical positivists in musicology
(figures like the Princeton professor Arthur Mendel), however, were critical of this
creeping conventionalism, although they didn’t call it by that name. For more on the
tension between positivism and interpretation, using Mozart studies as an example,
see my article ‘The Foundations of Mozart Scholarship’, Current Musicology 81 (Spring
2006), pp. 7–52.
36 M. Bilson, ‘The Viennese Fortepiano of the Late Eighteenth Century’, quoted in
J. Kerman, Contemplating Music: Challenges to Musicology, Cambridge, Mass.: Harvard
University Press, 1985, p. 217.
37 See, R. Dworkin, Law’s Empire, London: Fontana Paperbacks, 1986, pp. 55–62.
244 Law and art: justice, ethics and aesthetics

38 Ibid., p. 413.
39 Hans-Georg Gadamer, Wahrheit und Methode: Grundzüge einer philosophischen Hermeneutik
(2nd edition), Tübingen: Mohr, 1990, pp. 330–45 (‘Die exemplarische Bedeutung der
juristischen Hermeneutic’).
40 C. Douzinas and A. Gearey, ‘From Restricted to General Jurisprudence’, op. cit., p. 40.
41 T. Eagleton, Literary Theory: An Introduction, Minneapolis: University of Minnesota Press,
1983, p. 73.
42 See N. Duxbury, Patterns of American Jurisprudence, Oxford: Clarendon Press, 1995.
43 R. Taruskin, ‘Review: Speed Bumps’, 19th-Century Music 29/2 (2005), p. 195.
44 P. Bohlman, ‘Musicology As a Political Act’, The Journal of Musicology 11/4 (1993),
pp. 411–36, here p. 419.
45 C. Abbate, ‘Music—Drastic or Gnostic’, Critical Inquiry 30 (2004), pp. 505–36.
Jankélévitch’s ideas on music are in his Music and the Ineffable, C. Abbate (trans.),
Princeton: Princeton University Press, 2003.
46 See K. Berger, ‘Musicology According to Don Giovanni, or: Should We Get Drastic?’,
The Journal of Musicology 22/3 (2005), pp. 490–501.
47 M. Solomon, Mozart: A Life, New York: HarperPerennial, 1995, p. 23.
Part III

Law, justice and the image

Chapter 15

A legal phenomenology
of images
Costas Douzinas

The phenomenology of the image

The law has taken a strong interest in the organisation and regulation of images
since the Second Commandment and Plato’s attack on paintings for being twice
removed from reality and his expulsion of poets from the Republic. Why? What
makes the image threatening?
Let us summarise the central functions of the image. In the most general sense,
the image is the object of vision, seeing is to perceive the images the world projects.
We see through the windows opened by our imagistic perception of the external
world; the world is displayed for us through images. Secondly, the image organises
mental representations, it supports imagination and forms the building block of
both ordinary and poetic language. Structural linguistics, for example, argues
that the signifier in its arbitrary link with the signified forms images through
which we conceive the sign/concept. The signifier ‘table’ becomes understood
through a mental image that displays in the ‘mind’s eye’ the ‘tableness’ of a
prototypical table. Finally, in a more restricted sense, the work of art is given to us
in the form of its image. A painting or sculpture becomes available to us through
its imagistic presentation which offers itself to the world. The image is the foun-
dation and essence of visual representation, such as icons, pictures, photographs,
artworks etc.
Internal and external images form a continuum; they bring to consciousness
what is not present. Images give visual form to the invisible and make present
what is absent. Watching a fishing boat pass in the tranquil waters of a Greek
island in August, imagining a fishing boat pass while cloistered in the austere envi-
rons of a central London office and seeing a painting of a fishing boat in a gallery
are experientially different activities; all three are enabled however by the same
specular operation, the support and continuity the image offers to consciousness.
We are not able to ‘see’ or recognise the painting of the fishing boat without the
memory and imagination of a fishing boat; nor would we be able to ‘see’ or recog-
nise a fishing boat passing by without the imagistically supported words that refer
to ‘fishing’, ‘boat’ or the ‘sea’.
We can distinguish between the image of a painting and the things or
beings displayed in that painting by adopting and adapting to images’ standard
248 Law and art: justice, ethics and aesthetics

linguistic terms. The painting of a fishing boat, for example, acts like a sign: it
brings together the signifier (artistic skill applied on the canvas or other medium
or technology), with the signified (an imaginary fishing boat) to form the image
of a fishing boat, for which (the image of) a real boat is the referent. In this
approach, the image does not represent the absent, it presents it. Following
Edmund Husserl, we can call the painting’s image an ‘image object’. This object
is distinct from the thing the image depicts; the image must be detached and
distanced from its representatum in order to be placed in front of our eyes and work
as an image. This image is an object for someone, it offers itself to me, forming the
image phenomenon. In this sense, the image is an independent object, different
and separate from its depicted object from which it distinguishes itself.
A phenomenology of the image examines how the image discloses things,
brings them into presence.1 The primary meaning of the expression ‘this is the
image of something’ is not that the image comes after the thing in a sequence
where the thing leads to image. On the contrary, it is the image that unveils the
thing for us. It assembles it for our eyes and allows it to enter consciousness through
perception. In this sense, we could say that the image of a thing brings this thing
into being for a subject. The image poses the thing for a subject. In this ‘presencing’,
the thing is assembled into being for the viewer. To resemble a thing, the image
must first assemble it for a subject; in doing so, both the thing and the subject are
called to life, the image turns anything into something for someone.
In its ability of disclosing things, the image is promiscuous and forceful. It con-
fers unity and identity to the thing by reducing its multiplicity and by arranging
it to be seen as an entity. As Jean-Luc Nancy brilliantly argues the image is
‘the prodigious force-sign of an improbable presence . . . force-sign of the unity
without which there would be neither thing, nor presence, nor subject. But the
unity of the thing, of presence and of the subject is itself violent . . . it must
irrupt, tear itself from the dispersed multiplicity, resisting and reducing that
multiplicity.’2 Without the image there would be no thing for us, no presence and,
as a result, no subject could be called into existence. I am ‘Costas’ for you because
you see my image/visage. My image (and my name another marker for the reduc-
tion of multiplicity) announces a unity and therefore an identity, by forcing the
chaotic disorder of existence and consciousness into an identifiable singularity.
I come to subjectivity through seeing the image of myself in the mirror and through
the visage the other has of me which is reflected back into my consciousness
through her gaze.
The image discloses things including other subjects for the subject but does not
endow them with ontological solidity. The image both brings to presence and
withholds beings. I am my image for the other but this image is not who I am.
The image stays distant both from the world of beings it brings forth and from the
possibilities of availability and utilisation it opens. The image presents the absent
but also the absence in the thing, the fact that the thing cannot exist without the
action of the other, the image-other and the other self. In this sense, representation
is not a mimetic repetition or simulation but a presentation, a coming to being.
 A legal phenomenology of images 249

The original meaning of the Greek hypotyposis that representatio translated

in Latin was theatrical or juridical witnessing or exposing. Similarly, with the
psychological and philosophical usages of ‘representation’. ‘At the intersection of
the image and the idea, mental or intellectual representation is not foremost a
copy of a thing but is rather the presentation of object to subject . . . it involves
the constitution of the object as such . . . Representation is a presence that is
presented, exposed, or exhibited . . . It presents what is absent from pure and
simple presence, from its being as such . . .’3
The image therefore inhabits the gap between the thing or subject it brings
into being and the other. This gap, the image as gap between Being and beings,
what opens beings out of Being is always captured by power and influenced by
norms, commands and regulations. It is the space inhabited by death masks
and imagoes Dei, idols and icons, authorised and prohibited images, presence
and representations. The history of the capture of this gap is intimately linked
with power and law.

The scopic field

Religion, ethics and law have a long history of policing of images. This normative
control of the visual takes the form of an economy of permitted images and a
criminology of graven, dangerous, threatening and fallen images or idols. It was
argued in an earlier essay, which cleared the ground towards the development of
a ‘legal iconology’, that each epoch develops its own peculiar and historically
changing ‘regime of visibility’.4 Such regimes form a combination of iconoclasm
and iconophilia and amount to a complex administration of an era’s available
ways of seeing.5 These epochal regimes exist in all cultures even though their
naturalisation inhibits their identification. Such regimes become de-naturalised
and can be examined when the image becomes the target of political and
ideological confrontation. This was the case in the Byzantine iconoclastic contro-
versies between the seventh and ninth centuries and later in the Reformation; they
still form a central target and part of legal and power operations.
Strategic interventions in the field of vision have been organised primarily
around the regulation of the relationship between beings, images and language.
The stakes behind the close link between normative regulation and aesthetic
considerations are high.6 While this relationship has been examined in relation to
art, its central contribution to the constitution of subjectivity has been neglected.
The persistent link however between law, the image and desire indicates that the
relationship has an important synchronic or anthropological function. The separ-
ation and bonding between images, words and things, the question of representa-
tion of self and other lies at the heart of the constitution of subjectivity, if we attend
to some of the great discoveries of ‘the cognitive Continent’ of psychoanalysis.
According to a basic psychoanalytic insight, the subject comes into existence
by entering the symbolic order of law and language which separates the pre-
Oedipal infant from the maternal body and inscribes loss, absence and lack in
250 Law and art: justice, ethics and aesthetics

the midst of self. This lack is partially addressed through identification with
signifiers, words and ideal images. This separation, carried out in the name of
the Father, is the effect of entry into the symbolic order of language and law.
The operation of the image in this process of subjectivation has not received equal
attention to that of language. In the famous ‘mirror stage’ the infant experiences a
sense of jubilation when she first recognises her image and through the reflection
she identifies with a whole and complete body. But that image is external to the
body, it is other from the child’s sensual experience of a disjointed and disobedient
body. The body is made present for the subject by means of an image, the body is
posed outside of itself in its mirror image or double, it is ex-posed. The ego does
not precede the image but is made in the image of the image and it is in this sense
that Lacan would claim that the ego and its unity are imaginary, that is visual
and illusionary, the result of a bodily wholeness and completeness imaged and
imagined through this projection of the uncoordinated body into an adorable
visual other.
The basic law or interdiction which creates humanity as a speaking species
therefore is that of division and separation: from the maternal body, through the
Oedipal law of the Father, from one’s own body through the narcissistic identifica-
tion with its image, from the other as subject and object through their negation
or nihilation in the sign. The ego from the start is another. This is the void that lies
at the centre of human existence. The function of the originary prohibition is to
split the subject from corporeal existence and bond her to signs, words and images.
The regime of images has as its first object to determine our ways of seeing, of
attaching symbolic constructs to missing lost or dead objects and making them
appear as natural, inescapable or truthful in their absence. But this necessary div-
ision and alienation is not without its dangers: an instance of representation must
be assumed or provided, a place from which image and word originate and upon
which they are safely anchored. The first task of every culture is to institute and
guarantee regimes of imagistic and linguistic representation, which both separate
and bond words and things and thus allow the assembly of the biological, social
and unconscious dimensions of human life in the figure of the person (persona in
Latin is the mask actors put on stage during performances).
According to the French historian, jurist and psychoanalyst Pierre Legendre,
the normative structures of society are charged with the task of establishing and
manipulating this instance so that the subject’s alienation in the sign becomes
part of the dialectic of her formation. Religion and law carry out, therefore, vital
anthropological functions.7 For Legendre, society is a generalised or social mirror
in which the work of institutions is to transfer the narcissistic ‘I love myself ’ into
Rimbaud ‘Je est un autre’ and ‘I love another’, and therefore to establish the
necessary relation of the subject to the (image as) other. This function calls for
an instance which ritually displays or stages the principle of representation. Two
crucial tasks are involved here.
First, the social mirror must stage the negativity essential for the subject’s
introduction into a relationship with alterity. Separation is domesticated and loss
 A legal phenomenology of images 251

and absence accepted through their reference back to a foundational image from
which all power to legislate and all ability to attach signs to objects emanate.
But at the same time, the imagistic representation of divinity or royalty must retain
the distance and protect the radical alterity that separates the human and divine
worlds, self and other. The inner sanctum is empty, the most apposite sign of
divinity and royalty and the emblem of the law is the nothing. The image of the
Virgin with Christ in a holy icon is called the antiprosopon, the non-face or other
and opposite of the face. It ensures that the face and its eyes come to vision and
visibility as an absence, not in an idolatrous full presence.8 The Imagoes Dei of
Christian art are the ritual representation of the principle of absolute alterity, they
reconcile humanity to its inescapable limitation. In admiring the holy face, the self
accepts that the image of a complete and fulfilled self is unattainable, and the
separation between self and its image becomes acceptable. The absolute other
cannot – must not – be seen, but its existence and power must be asserted and
staged. This is why the absent founding image must be staged in order to allude to
the terrible force or transcendent power which lies behind all subjectivity, power
and law. The social mirror, a necessary foil or support of representation, is thus
presented as its fount and origin.
Secondly, the ritual mirror must regulate and police the principle of resem-
blance through which the differentiation, multiplication and identification of
specular objects is achieved. In the theological tradition, Augustine argued that
for signs to attach to things or beings and become their likeness, their limited bond
must participate in an absolute Resemblance or Similitude. In Christian semiotics,
the Logos is the site of participation of things in the likeness of God and Christ, the
Imago Dei, is the metaphysical prototype of all resemblance. Christ as the natural
image underpins not just the limited likeness of the material icon but the whole
order of representation. The absolute image both secures and domesticates div-
ision and separation and, by staging the principle of resemblance and iconicity,
binds signs and images to things. Through the recognition of the absolute other-
ness of the divine image, narcissistic desire – the desire of the self in its image – is
transposed into an acceptance of radical otherness (of the image, the other) and
into desire for the other. Two basic anthropological functions are therefore at
stake behind the war of images: division, negativity and nothingness on the one
hand and likeness, mimesis and representation on the other. In this sense, the
power to stage representation links the normative structures with the world of
forms, relates politics and aesthetics and supplies the symbolic order with its absent
foundation.

Regimes of visibility
The scopic field has always been divided. The eye, vision and visibility belong to
theos/theorein/theoria (seeing and the seen), God and sun, brightness and clarity,
light and En-lightenment. At the same time however the eye identifies and
separates. The eye’s discernment is also a way of abandonment and exclusion.
252 Law and art: justice, ethics and aesthetics

The vista opened by the penetrating eye, the enframing action of vision which
applies a window on the world rejects the non-lit, dark side, condemns the unseen
to non-existence. There is more: The fascinum of the evil eye, the aggressive aspect
of vision mimics and mirrors the eye as its double. It reflects the eye and adopts
its killing quality. Separation, splitting, demarcation is the business of the eye; this
is how the eye acts on the I.
The eye, like the I, is split. On one side, eyesight is the noblest of senses.
For Plato, the eye is heliotropic, sun-like and turned to the sun.9 Vision is the
companion of intelligence and the soul while the mind’s eye sees the essence of
things. Theoria, the attentive look that beholds, breaks through the mists of percep-
tion, doxa and empirical experience, and directs material being. In monotheistic
religions, God is omnipotent, omniscient, all-seeing. An eye ensconced in the
middle of a triangle has been widely used since the seventeenth century to represent
the Christian Trinity.
Similarly, vision and the eye are closely associated with images of justice.
Classical antiquity displayed justice with intense and awe-inspiring eyes. The few
Greek depictions of justice have her eyes wide open so that nothing can be hidden
from their piercing vision. In the Enlightenment, Erasmus has the eyes of justice
strict, straight and immobile, keeping the judge to the path of truth and virtue.
Divine and worldly vision were eventually combined in the body of the prince.
In early modern political theology, God’s benevolent sleepless eye, providentially
watching over the creation, was transferred to the secular sovereign. An eye over
a scepter was the sign of a wise and just ruler, passing the emblems of divinity to
God’s representative and disciple of earth.
And yet the eye is also evil. The evil gaze causes bad luck and illness. Evil
derives from the eye’s intrinsic malevolence (Italy) or expresses the malice of the
person bearing it (India).10 But the duplicity of the eye, its ability to see itself seeing,
gives it a supernatural force that can turn it into a homeopathic apotropaic device
against the evil eye. In the pantheon of prophylactics, the eye joins the phallus,
the other great defence from evil. The famous Antioch mosaic depicts a large evil
eye attacked by weapons (nails, swords, tridents), animals (snakes, dogs, birds) and
the huge phallus of a dwarf. Both the evil eye and the phallus are fascina, bringing
vision, desire and emotion together. Eyes phallic amulets and coloured beads
are still worn in the Mediterranean as defences against the evil eye.
The duplicity of the eye afflicts its more abstract and metaphoric representa-
tions. The blindness of justice appears first in an Egyptian allegory of a judicial
bench, recorded by Plutarch. The chief justice has lost his eyes as a protection
from partiality while the other judges have no hands with which to take bribes.
The Egyptian conception was revived in the sixteenth century. Blindfolded justice
appears for the first time around 1530, with the fool covering her eyes in order to
hoodwink and lead her astray. In Ripa’s Iconologia, worldly justice is shown with
closed eyes while divine justice has open eyes. In some later publications Justitia is
shown with two heads, one blindfolded, the other seeing. The ambiguous refer-
ences to the blindfold were eventually removed and blindness was interpreted as
 A legal phenomenology of images 253

the benevolent symbolism of neutrality, of the removal of the material accoutre-

ments and sensual favours vision bestows.11
Modernity brings this dualism into the open and instils it in the heart of
subjectivity. The splitting between eye and its evil doppelganger is refracted in
the distinction between vision and gaze, the activity of seeing and the passivity of
being seen. The modern seeing subject is captured in the field of vision, caught
and manipulated by the operations of the social gaze. There is a dissymmetry
between the eye and the gaze, between the subject of vision and the object of gaze.
This dissymmetry links vision to strategies of power and normative claims.
According to the phenomenology presented in the first part, the image as thing
does not represent or come after the (displayed) thing, but over-determines or
conditions that thing. As Jacques Rancière puts it, ‘the image is not the duplicate
of a thing. It is a complex set of relations between the visible and the invisible, the
visible and speech, the said and the unsaid.’12 But how do normative regularities
and power strategies affect these sets of relations? A whole new field, a critique of
iconology, perhaps more important than the well known critique of ideology,
opens here.
Jean-Paul Sartre’s voyeur, who hearing a rustle behind him realizes that he is
caught looking through the keyhole, stands as the model of modern subjectivity.
When seen, the viewer enters a Hegelian process of visual recognition and is
transformed from acting consciousness into full subjectivity: ‘L’autre me voit, donc
je suis.’13 The subject emerges by being turned into a target of seeing, a seen
object. I see myself because somebody sees me. Shame and nausea emerge as
the transcendental emotions organizing subjectivity, with the recognition that
I-am-as-object of the Other’s gaze and judgment. Franz Fanon realises that, as the
only black man in a Marseille theatre, he is split between his own imaginary iden-
tity and the alienating and hostile gaze of those around him. The gaze projects
upon its target the image which will gather her into the person the world sees
and recognizes. This image, which is detached from its subject as all images are,
is so radically separated from the ideal (imaginary) picture self has of itself that
it creates a second inferior and humiliated sense of self. The gaze is a violent con-
stituent power; its projected image solidifies and estranges human existence more
than any constitution or law. But the image itself is deeply conditioned by power
and law.
Jacques Lacan radicalized the idea of visual constitution as entrapment. ‘I see
only from one point, but in my existence I am looked at from all sides . . . We are
beings who are looked at, in the spectacle of the world. That which makes us
conscious institutes us by the same token as speculum mundi.’14 Lacan proceeds
to link explicitly vision and legality. A ‘legal screen’ is interposed between the
subject and the social gaze filtering the objects of vision and determining the ways
we see and are given to the world to be seen.
According to Kaja Silverman, who has reworked the Sartrean gaze in a psy-
choanalytical direction, ‘the screen is the site at which the gaze is defined at a
particular society and is responsible both for the way people experience the effects
254 Law and art: justice, ethics and aesthetics

of the gaze and for the particularity of the visual regime of a particular society and
epoch. It introduces historical variability in the relation between the gaze and the
subject as spectacle and between the gaze and the subject as look.’15 Assembled in
religious, moral and legal rules and practices, the screen is responsible both for the
way people experience the effects of the gaze and for the particularity of the visual
regime of each society and epoch. It introduces ‘social and historical variability
not only into the relation of the gaze to the subject-as-spectacle, but also into that
of the gaze to the subject-as-look’.16 As a collection of authoritative images and
material practices the screen offers ‘a repertoire of representations by means of
which our culture figures all of those many varieties of ‘‘difference’’, through
which social identity is inscribed’.17 The premodern ecclesiastical ‘chain of icons’
was such an institutional arrangement through which certain representations were
validated and valorised over against others.
But the first and foremost target of the normative screen is the capture of the
object image, of the ways in which the subject comes to subjectivity and identity
through the recognition of her image. Presence and representation, the assignment
of certain ways of seeing as natural, normal or truthful are determined through
such historically changing imagistic regimes. These epochal and variable ‘regimes
of visibility’ bring together the sensuate body and approved ways of seeing and
create what can be called the ‘normative’ body of the individual.
These ‘regimes of visibility’ involve three vital anthropological tasks. The first
is about the internalisation of absolute otherness and the domestication of death.
The second organises the field of representation, defines what passes as true or
false, natural and authentic or artificial and false. The last is more detailed, flexible
and historically changing. It is about positive evaluations of certain images which
are ascribed a culturally specific normative superiority against others. The first
establishes the human subject; the second influences what passes as true and false
in a society, the third determines what is accepted as good or beautiful. The law
contributes to all three despite the aesthetic abstinence alleged by orthodox
jurisprudence.
The task of legal iconology is to explain how power and normative systems
frame what and how we see, to develop a critique of regimes of visuality that will
complement the critique of ideology.

Legal aesthetics
Let us finally link image as disclosure of beings with the epochally changing and
legally conditioned regimes of visibility.
We associate aesthetics with form and the beautiful and we distinguish between
the determinant judgment of law and the subjective responses to art. Aesthetics
and judgment have a common source however in the Aristotelian aesthesis,
the senses and sense perception. Before it became a minor philosophical special-
ism and a professional identity, aesthetics referred to sensory apprehension.
Philosophy and theology believed, until early modernity, that judgment is the
 A legal phenomenology of images 255

business of the senses. The senses distinguish light from dark, pain from pleasure,
hot from cold. This first external judgment is subsequently organised by the
internal faculties of the soul, such as fantasy, memory and recollection, which
deal in mental images. These faculties are inferior but indispensable types of
reason. They bring the senses together and compare individual forms.
Behind the senses, as Chapman argued in 1595, lies a sensus communis, a sense
which is common to all of them and compares and judges their partial distinctions.
Higher or right reason finally organises those judgments of sense and compares
universal forms. The particular judgment of the sensus communis is very close to the
operation of practical reason. Premodern law from Greece and Rome onwards is
predominantly a casuistical enterprise.18 It deals with the particular case and the
unique litigant by means of analogies, precedents and story telling. The juridical
attitude is the response of conscience to mental images, past narratives and the
rhetorical practice of comparing similarities and differences. Practical judgment
deals in the particular, in the various versions of phronesis, in the casuistry of
the Church and of the common law. Before the academisation of aesthetics, art
too was judged as right or good in a way similar to the judgment of law.
Early modern aesthetics was conceived as the science of these lower faculties
of the soul, the sensus communis; its task was to discover the rules governing its
constituents, intuition, imagination and memory. It was the impossible science of
sensate life, of affects, emotions and phantasms, an attempt to understand and
control the way through which the body is inserted into and reacts on the world.
The partial abandonment of this grandiose project is symbolised by Kant’s redef-
inition of the sensus communis from a faculty of the soul into the transcendental
horizon for the operations of reason. The judgment of sense or taste withdraws to
the subjective sensibilities of the aesthete. But her twin sister, the judgment of law,
continues the same project, of administering images and disciplining the senses.
For medieval political and legal theology, the artist is seen as both creator and
imitator of nature and is modelled on the metaphysics of ingenium and the genius.
The prototype artist, the original creator, is the Pope. The first reference to the
Pope as ‘someone who makes something out of nothing’ is found in a papal decre-
tal of 1220. This papal power to create ex nihilo referred almost exclusively to legal
matters: he could make new law except that it could not be contrary to faith or
natural law. Furthermore, the Pope could waive the strict application of the law,
reversing the relationship between justice to injustice: ‘[The pope] can make an
illegitimate legitimate, and can make a monk a canon’ states a typical gloss.19
These creative powers and prerogatives were eventually claimed by and
transferred first to the Emperor and then to Princes. The divine inspiration of
the Pope was arrogated to the secular lawmaking and law-dispensing power. The
King, like the Pope, imitated nature by applying its laws but he was also the
only person who could make new laws according to the changing circumstances.
He too could create ex nihilo. A parallel development in juristic writings extolled
the way in which the law could create world-making fictions. One such legal fic-
tion was the institution of adoption, in which strangers could imitate the natural
256 Law and art: justice, ethics and aesthetics

function of the family. Legal fictions imitate nature and create important effects.
It was through a legal fiction, for example, that the law could create ex nihilo a
persona ficta, a corporation or the corpus mysticum of the Church and breathe into
them a life of their own. These important fictions were invented by the jurist and
jurisprudence was seen as an art which both imitates and creates nature.
This idea became generalised in the sixteenth century. The legislator invents
the particular way in which general natural law is to be applied, re-creates nature
in a limited way. He is God’s disciple and representative on earth and partially
resembles divine grace. The sovereign is therefore an artist who both creates
and imitates nature by following the universally valid Natural Law. ‘As the jurists
and political theoreticians asserted time and again [the legislator was] the sicus deus
in terris.’20
Dante was the first to compare the poet with the Emperor. The analogous
nature of their powers was emphasised during Petrarch’s coronation in 1341.
The poet was called the officium poetae and was compared to an ex officio Emperor.
Horace’s Ars Poetica further extended the creative power of the poet to divinely
inspired painters and sculptors. Through a series of equivalences the power to
create ex nihilo was passed from God to Pope, to the secular powers of the legislator
and the jurist and eventually to the ‘individual and purely human abilities
and prerogatives which the poet, and eventually the artist at large, enjoyed
ex ingenio’.21 The artist’s creativity was presented on the analogy of the legislator
and the jurist.
Creativity, whether legal or artistic, confronts the nihil, what is not, the nameless
or void, and makes something out of it. Art gives shape to what is behind the
visible. The similarity between law and art was widely accepted until the fifteenth
century and permeated Renaissance humanism. But the progressive profession-
alisation and positivisation of law gradually removed its study and scholarship
from the humanities. Positivist jurisprudence presented law as the preserve of a
specialist science-like expertise, without spiritual claims or emotional investment
and set into motion the inexorable process of separation between aesthetics and
law. The artist moved from craftsman to genius on the analogy of the legislator;
art progressed from skilful technē to the main depository of creativity. Law, on the
other hand, concerned now with regulation and application, regressed from the
god-like world-making to craft and technique. This is the well known process and
figure of the chiasmus, the X-shaped reversal of properties. The law mimics art
(which initially inherited its character from law) in an attempt to claim creativity
while the judge tries to mirror the artist or the art connoisseur.
Law remains, however, a deeply aesthetic practice. As argued above, a gap
separates image from beings which are given to us through their imagistic pres-
encing. But this gap, which both reveals and conceals beings to us, is a site of legal
capture and staging. The various forms of interdiction and command operate in
this gap turning images into banned idols or approved icons. But the legal staging
and capture goes much further. By supporting representation, by reconciling us to
radical alterity and by introducing us to difference, the law helps the imagistic
 A legal phenomenology of images 257

staging of the world for the subject. Institutional image and fiction-making offers
approved ways of seeing and recognising the world.
For Pierre Legendre, this gap is a stage located at ‘a little distance from the
body. This little distance between body and self opens to representation. Trained
into Christian rational industrialism we have difficulties in seeing the human as
body-image-word, as a montage.’22 Art, theology and law (today marketing, the
media and regulation) are the major tools of this montage.
A general aesthetics (unlike its restricted professional version) is the study of the
sensory apprehension of the world through the action of images and fictions.
Strategies of staging and normative sanctioning determine its effectiveness. Legal
aesthetics sanctions regimes of visibility, which mediate between body, conscious-
ness (and the unconscious) and the world. We experience this normative aesthetic
all the time but we scarcely notice it. We are like a short-sighted man who has
worn glasses all his life. He realises that the world looks (and perhaps is) different,
a vague and dull vista without the spectacles. But once he puts the glasses on he
quickly forgets that the clearer vision he now has is the artificial result of wearing
glasses. Spectacles-enhanced vision becomes naturalised, it is accepted as vision
tout court and as an accurate picture of the world, only to be frustrated when a lense
is broken, the glasses lost or the eye attempts a sideways look beyond the edge
of the frame. The legally approved regimes of visibility are like myopic glasses:
they condition our ways of seeing turning a blurred vista into a clear spectacle the
contours of which however are cleansed and policed.
The idea of the frame of enframing is a good analogy for the operation of legal
aesthetics. Let us take the example of the market model which has become domi-
nant in neo-liberal capitalism. We increasingly see our relations with others and
the world through a contractual imagery. A fictional frame of promises, agree-
ments and contracts filters the way we see a large part of relations with others.
This contractual framework is replacing other ways of seeing human relations,
such as sympathy, care and love. It operates both as a mise-en-scene, a staging of
human relations, and as a screen which approaches relations, encounters and
emotions according to a model of offer, acceptance and consideration. While such
an economic model is staged and artificial, it relies on the naturalising ability of
the legal institution and a belief in the power of images and screens to represent
faithfully the original.
Aesthetics stages the world by regulating the gap between being and image.
On the legal side, aesthetics stages reality with its pleasure principle of non-
contradiction; on the artistic, the real, the unconscious, with its non-linear tempor-
ality and non-causal causality, where ‘anything is possible’.23 The law stages
and shapes the imagistic regimes of reason, truth and the good. Artistic practice
on the other hand stages the imaginary sources of thought, the other side of reason.
The double rule, the aesthetic and the legal norm, links two stages and two alteri-
ties, fitting them into one.
Traditionally it was justice not law that negotiated the ambiguities of vision,
with its open or blindfolded eyes.24 When the two were divorced, the law became
258 Law and art: justice, ethics and aesthetics

disciplining, inspecting, its eye symbolised by the ubiquitous CCTV cameras, an

enormous normative grid which sunders, reifies and subjects. Justice the benevo-
lent, apotropaic device, protecting from evil was blindfolded. But art reminds us of
a time before positivisation when the good, the beautiful and the true were still
parts of a united trinity. Here lies the political responsibility of the lawyer and
academic today. To revive an aesthetic of justice, in the name of a justice whose
judgments lie outside or beyond the law, expressions of a higher tribunal to which
the law is called to account, when its eye turns into an ossifying gaze.

Notes
1 The following analysis is indebted to Jean-Luc Nancy’s The Ground of the Image, Jeff Fort
(trans.), New York: Fordham University Press, 2005, ch. 1.
2 Ibid., p. 23.
3 Ibid., p. 36.
4 Jacques Rancière has developed the concept of ‘artistic regimes’. This is also an epochal
concept but its application is limited to art and aesthetic considerations unlike my
‘regimes of visuality’ which covers all aspects of imagery and vision. See The Politics of
Aesthetics, Gabriel Rockhill (trans.), London: Continuum, 2004, pp. 7–46.
5 C. Douzinas, ‘Prosopon and Antiprosopon: Prolegomena for a Legal Iconology’ in
C. Douzinas and L. Nead (eds.), Law and the Image, Chicago: Chicago University
Press, 1999, pp. 36–70.
6 Ibid., 61–7. See also Costas Douzinas, Nomos kai Aesthetike, Athens: Papazissis Press,
2006, chs. 2, 3 and 4.
7 P. Legendre, Dieu au Miroir: Etudes sur l’institution des images, Paris: Fayard, 1994 passim.
8 Douzinas, op.cit., note 5.
9 M. Jay, Downcast Eyes, Berkeley: California University Press, 1993, ch. 1.
10 Information on the evil eye comes from the impressive unpublished manuscript,
‘The Evil Eye: Gaze and Image in Pompeii’ by the art historian Aglaia Comninou.
11 Erwin Panofsky, Studies in Iconology, New York: Westview Press, 1972,109–10, n. 48
12 J. Rancière, The Emancipated Spectator, Gregory Elliott (trans.), London: Verso, 2009, 93.
13 Francois George, Deux Etudes sur Sartre quoted in Jay, op. cit., p. 288 .
14 J. Lacan, The Four Fundamental Concepts of Psychoanalysis, London: Penguin, 1986, pp. 72, 75.
15 Ibid., p. 19.
16 K. Silverman, The Threshold of the Visible World, New York: Routledge, 1996, p. 135.
17 Ibid.
18 C. Douzinas and R. Warrington, Justice Miscarried, Edinburgh: Edinburgh University
Press, 2004, chs. 3 and 4.
19 E. Kantorowicz, ‘The sovereignty of the artist’, in Selected Studies, New York: JJ Augustin,
1980, p. 360.
20 Ibid., p. 356.
21 Ibid., p. 363.
22 P. Legendre, ‘The Dogmatic Value of Aesthetics’, 49 Parallax 10–17 (2008).
23 Ibid. p. 17.
24 M. Stolleis, The Eye of Law, London: Birkbeck Law Press, 2009.
Chapter 16

Flores quae faciunt coronam or

the flowers of common law
Peter Goodrich

Moreover learninge hath that secret workinge that tyrauntes have bin mittigated
therewith, and have dissembled their affections for the time.1

What happens when two regimes of knowledge collide? The question has to be
specific. What happens when theology and jurisprudence, icon and law, image
and text, spirit and letter confront each other in the early modern period?
One answer, an inadequate one no doubt, is that something unrecognizable
emerges, an enigma, a novelty, a hybrid form. It is the hybrid, the confusion or
irruption of one world in another, the event of modern law that I wish to pursue
by way of a strategic and, I hope, emblematic example. For a while, even in
England, and more particularly still, even in common law, say between 1550 and
1650, the intermingling of jurisdictions, and especially the annexation of the spir-
itual laws and courts, created a novel genre, that of the legal emblem book. It had
its roots on the continent and in the translation of civilian emblemata but the
common lawyers produced their own variants, in their own venues and with their
own vernacular verses. It can perhaps even be argued that the Inns of Court, the
third university, developed its own mens emblematica, its own visual code and imag-
istic form, and it is this novel and relatively short-lived mode that I will here exam-
ine in the hope of proving the following thesis. The legal emblem marks the
passage, the displacement, of the spiritual jurisdiction into the common law. The
image, technically the figure in the emblem, marks a theological residue, an
enfolding of forgotten dogma, an ethical moment and spirit of justice, something
sacred and plural within the black letter of the law.
The argument is somewhat unfamiliar – a little monstrous – and so maybe
requires a systematic elaboration, a somewhat formal disposition which will begin
with the sources of the Anglican legal emblem in the tradition of heraldry and the
classification and elucidation of civil and military insignia and devices, sometimes
also and more romantically termed impresa. Bringing together the various folds of
the emblem I will next examine its circulation, audience and specifically juristic
modes. Why were images and figures desirable, viable, enfolded and permitted
within the emerging discourse of law? What was the secret of their undoubted
success? An initial hypothesis. The intimate became extimate. The spiritual
tradition of cases of conscience and their dictate of the interior regimen and ethics
260 Law and art: justice, ethics and aesthetics

of self-governance now became part of the legal tradition and casuistry became a
matter of law. The emblems were quintessentially interdisciplinary in the proper
sense of mediating between disciplines and carrying one regime of knowledge, one
world and law into another. More than that, whatever their hybrid status, their
uncanny and homeless qualities, these images also were meant to discipline, to
advance creed and norm into new spaces and practices. It is this last dimension
and facet that will form my conclusion. These images, these flowers of law as they
were sometimes named, appealed to lawyers and were promulgated by them for
specific and non obvious purposes. They were used to communicate and to
obscure, to disseminate and to dissimulate a sacral tradition and law, a hierarchy
and knowledge that was not only and not always evidently that of the Angles, the
English and their ‘commune ley’.

Sources
The emblem is a trinitarian endeavour composed of an image, a Latin motto, and
an explanatory verse, most usually composed in the vernacular. According to an
apocryphal history, it was the invention of the Italian humanist lawyer Andrea
Alciatus who in 1531 published his Liber emblematum, a collection of epigrams
accompanied by woodcut images, on the occasion of the Saturnalia, a Spring
festival.2 It was actually the printer who included the woodcuts but the extraordin-
ary success of the book, which went to over 200 editions in the next two centuries,
and was almost immediately translated and mimicked in the vernacular, indelibly
placed Alciato’s name on the portals of the tradition. That is not my concern,
beyond the accident that his was the name of a prolific and well-respected jurist
and it was less authorial intention than chance, an historical force rather than an
individual design that occasioned the event of the emblem book.
The question of sources transpires to be a matter of the historical and discur-
sive regimes at play in the invention of the emblem book. I began with a duality,
a diffraction of discourse as Foucault labelled it, and in this instance that of the
intersection of spiritual and temporal, but there is also a third facet which perhaps
mediates between the two, that belongs to neither but is shared by both, namely
the theatrical aspect and performative use of image and word printed together.
Sticking to the two principles, theology and law, they must be dealt with in lexical
order. The general source of the symbolic, of which the emblem is a species, is
sacral and this sanctity is variously termed hieroglyphic, cabalistic, mysterious and
obscure. A popular example can be taken from a 1643 French edition of Cesar
Ripa’s Iconologia (see Figure 16.1), which happens to be in the public domain and
so spares us seeking legal permissions. The title and explanatory subtitle are
figured centrally on a tablet or tombstone with the Latin motto ‘memoriae sacrae’
above it. Shining over this, omnivoyant and all surveillant is the sun, the helio-
trope of the divinity, while to each side of the memorial are obelisks with hiero-
glyphic images inscribed upon them. Here, simply figured, is the most common of
all depictions of the source of image and word, picture and letter, in the sacred.
 Flores quae faciunt coronam or the flowers of common law 261

Figure 16.1 Frontispiece copper engraving of Aegytian hieroglyphs from the 1643 French
translation of Ripa’s Iconologia. Translation by Jean Baudoin, published by Guillemot in
Paris. Photograph courtesy of Peter Goodrich.

The sacral origin of signs, as also and necessarily their reference to the divine,
can be traced, in its early modern guise to the discovery and first compilations of
hieroglyphs. These are viewed as coming to the West via the Greeks, as an esoteric
tradition of holy letters (hierographie) and sacred writings (sacrae notae) in the form
of pictures. Sticking, however, to our English lawyers, for ease and brevity, George
Wither, the barrister who in 1632 authored A Collection of Emblemes, a translation
and expansion of a continental work by Gabriel Rollenhagen, the pictures are
262 Law and art: justice, ethics and aesthetics

‘mysteries’ and ‘riddles’, and none more so than the frontispiece image, the
emblem of emblems, the only original image in the work, of which he says, in his
very own style: ‘And, here it stands, to try his Wit, who lists/To pumpe the secrets,
out of Cabalists’.3 The mystery and myth, the unsaid and unthought of faith
explicitly precede and visibly authorize the images that follow as complex and
layered indices of a greater and invisible truth: ‘The Egyptians folded up their
Learning in the dark contexture of Hieroglyphicks, the Greeks wrap’d up theirs in
the gloomy Vesture of Emblems’.4 It is that dual tradition of symbolic transmission
that distantly though quite explicitly undergirds the early modern tradition. God
is nearby – Deus proximus est as one emblem announces – and this is as true for the
legal emblematists as it is for the theologians.5
The generic authorization of images, the iconological remit of the legal authors,
has a second aspect and instantiation. It is that of heraldry, the science of symbols
as it was called, that elaborated the hierarchy of nobility and dignities that descend
from the divine to the earthly, to the various recipients of majesty who are the
delegates of such illustriousness. Each rank has its place, its images and inscrip-
tions, colours and notes, carefully devised. It must be observed too that the emblem
is normative and universal, whereas the device, its forebear, is local and specific.
The inscription of the sacral passes by way of the representation of the sacred in
the temporal, by way of the spiritual and municipal facets of the polity. Again, one
has only to turn to the images that precede the collections of moralizing emblems
that make up the genre to see directly and expressly the incorporation of the
devices of the divine in the human. Whitney’s emblems are dedicated to Robert
Earl of Leicester who is, amongst other dignities, ‘Maister of Her Ma[jes]ties
horse’, a member of ‘Her Highnes most honorable privie Counsaile’ and ‘Captaine
Generall of her Ma[jes]ties forces in the Lowe countries’.6 On the facing page is
Lord Leicester’s coat of arms which incorporates the Royal motto with the French
subscript Droit et Loyal – Just and Loyal. Alciato, to return to the immediate origin,
begins his emblem book with a very similar dedication to the Duke of Milan and
reproduces his device (imprese) with a motto that translates: ‘To the illustrious
Maximilian, Duke of Milan.’ Note briefly that illustris and superillustris, spectabilis
and similar honorific titles make direct reference to the visibility of the dignity, the
insignia of the office. It is necessary to recollect expressly and ostentatiously that
Rex dat dignitates, the Sovereign gives out administrative offices and civil honours,
the notitia dignitum, and hence it is to the sovereign or her delegates, to the vicarious
and to their progeny, that the first emblem refers.7
The tradition of visual notation of office and rank, the codes and laws of pictor-
ial and plastic representation of the political and legal returns, of course, to the
civilians and to the administration and governance of empire. The imperial
Roman De Notitia Dignitatum, edited by Alciato and also by Guido Pancirolus in the
sixteenth century are key sources along with Bartolus’ Tractatus de insigniis which
first appeared in 1358. That much goes without saying and the barrister John
Ferne indeed grumbles in his introductory note dedicated to the ‘honorable assem-
blyes of the Innes of Court . . . to the Worshipfull, sage and learned company,
 Flores quae faciunt coronam or the flowers of common law 263

the Readers and other the Benchers of that Society, his reverend Maysters’ that
sometimes too much has been made of foreign sources: ‘the fardels of Parargon,
and Emblemes of Alciat, the devices of Paradin, and the natural histories of
Gesnerus’.8 Too much was made over to the interpretation of individual authors,
and too much credit accorded to the ‘phantasie of each writer’ and not sufficient
to the law and custom of demarcating and signifying social place, virtue, role and
office. So the English also had a tradition of arms and ensigns, of blazon and
device whereby the honour and the lineage, the virtue and achievements of family
and position could be depicted.
The English tradition, the sottises anglaises as the French of that era would have
it, go back to Nicholas Upton and his mid-fifteenth century treatise De Studio mili-
tari. This was based on Bartolus’ Tractatus and offered a somewhat mixed view of
the origins of arms, suggesting controversially that arms could be claimed inde-
pendently by individuals, as opposed to being given by authority, but later works,
Bishop Trevor’s Book of Arms and then Ferne’s Blazon most decisively reject such
anarchic views.9 Specific details of doctrine aside, the common lawyers of the
second half of the sixteenth century are very clear that heraldry or the law of arms
is in its most general formulation the science of symbols as such. For Gerard Legh
it is ‘the science of sciences’ and exists to mark the differences between men,
between ‘gentle and ungentle . . . between virtue and vice’.10 The office of arms
was to depict matters of ‘high honour’ and at its most general this meant noting
and reproducing in earthly form the heavenly hierarchy, his conclusion to his
Accedens being that ‘every Ierarchie foloweth the conformitie and likenes of god . . .
and Hym wee beseech to gruant the Queene, with the iii estates of this realme,
ioyfully to beholde the glorie of his countenance in heaven, with the nine orders of
Angels, therueunto let every English man say Amen.’11 Note immediately the
homonymy of ‘Hym’ and ‘Hymn’, the latter being the mode of existing for and
communicating with the former. Each being the same, both of and in the other,
such that hymnological glorification, if we can briefly advert to Agamben’s recent
philological tour de force, is the mode of being truly human and of embodying
both sign and meaning as chorus and act.12
Legh’s successor, Bossewell, is if anything even more rigorous in his depiction
of the ‘secret intelligence’ and governing law of meaning and place, of virtue and
honour, that is conveyed through the symbola heroica, through all kinds of visual
instruments.13 The law of arms comes from ‘almightie God’ and was ‘by the aun-
cient heraultes grounded upon these orders of Angelles in heaven’ both in the
sense that the angels are sent, they convey the discrepancies and differences of
hierarchy and honour that the divinity dictates and in the sense that they model
and enact an order of differences that humans are to mimic and then through
grace or luck eventually join. The rest of the book provides the detailed depiction
of the ornaments and indicators of each order and office, the colours, stones, pre-
cious metals, planets, and animals that mark and signal the order of ‘degrees,
offices, governance and power’, each being ‘distinct in dignitie, vertue, power,
preheminence and working’.14 Derived from elsewhere, a ius quaesitum alteri – a law
264 Law and art: justice, ethics and aesthetics

reposed in the other as lawyers might put it, the most visible and evident mode of
social meaning, of identity and belonging was pictorial and encoded throughout
public and private space. Insignia, heroic and mystic signs can be seen throughout
the monumental and written city, in every facet of architectural theatrics, in
inscriptions, memorials, religious and legal locations, in flags, ceremonies, vest-
ments, labels, medals, names and more. Even (or especially) the New York City
Department of Sanitation has a device and motto on their salt storage facility off
West Side highway I noticed recently, though I will not reproduce it here. Another
indication of hierarchy and law embossed in the visible public realm; a memorial,
inscription and spectacle of governance in the quotidian and municipal to which
I will now turn.

Flores legum
The legal emblem has passed largely unnoticed in the modern juristic tradition.
It gains no mention in jurisprudence, neither in common law nor in the civilian
jurisdictions. It was short-lived, flourished then died, and this is according to
scholars of literary history, the denizens of disciplines that study the non-legal,
the fictive, otiose and ornamental. Legal scholars don’t even recognize the
subject save as a curiosity or miscellaneous merriment according, for instance,
to that inestimable late Victorian Scottish lawyer, Professor David Murray.15
The emblem, for him, was evidence of opulence of law expressed in vellum
and other printed and illustrated law books with coloured type and pictures.
The emblem, even when, in a moment of great rarity and some obscurity, it is
mentioned it is treated as weightless ornament, the equivalent of a rhetorical
distraction, mere eloquence.
History has fallen victim to science. There is a price to pay. What is visible and
significant over the longue durée, at the level of social structure and epistemic regime,
as paradigm, gets lost in the interstices of the momentary system, the current rule-
book, today’s law, the black letter treated scripturally rather than as missive.
Return to the genealogy, the historical roots of the legal emblem in the hieroglyph
and the device, in theology and heraldry. Theology deals with the invisible, the
other world, what is enigmatic in St Paul’s depiction, and so can neither be under-
stood directly nor accessed with any degree of simplicity. It requires faith, ‘belief
in what is not’ according to Sir Edward Coke’s contemporaries, and for this the
evidence is always esoteric. The hieroglyph, the occulted sign, variously defined as
Egyptian, Pythagorean, Greek or simply dark, was a necessary facet of law and
most directly the key component of both hierarchy and majesty. The tripartite
facets, the trinitarian structure of the emblem can begin with the Latin motto, the
esoteric message that the image bears and which authority requires.
The motto, from the French mot, simply refers to the adage, the aphorism –
legally the maxim, regula or brocard – most usually in Latin, rarely in Greek, that the
image and verse are intended in part to relay. Being in Latin, it is evident from
early on, and the emblematists take this straightforwardly from the tradition of the
 Flores quae faciunt coronam or the flowers of common law 265

impresa and device, that the norm and message being conveyed is more than is
immediately visible. Hayaert makes the point that the emblem is in considerable
part an esoteric mode of communication circulating with frequent jokes and rid-
dles between humanist scholars and lawyers.16 Recollecting the device, and indeed
the device that inaugurates Estienne’s Art of Making Devices, translated by the lawyer
Thomas Blount in 1648, whose motto is Pro lege et pro grege, for the people and for
the law, there are already two sides to the epigram and a lexical ordering whereby
law precedes the people and Latin stands above the vernacular that will follow.17
Whatever else may be observed of such an emblematic device it clearly indicates
a sacral transmission, the blood that Christ gives to man as well as the infantiliza-
tion of humanity as the recipients of such blood and as the children of the divine.
The picture shows in the foreground a pelican piercing its breast and feeding its
young with its own blood, and in the background Jesus on the cross, his blood
flowing into the crowd below.
Going back to the 1580s and the early era of the legal emblem tradition,
the philosopher and legal theorist Abraham Fraunce defines the symbol, of which
the hieroglyph, device and emblem are principal instances, as being in essence
‘a representation by means of which something is concealed’.18 He gives the
examples of watchwords, bellicose military signals and ‘even money’. In a disquisi-
tion on hieroglyphs, Fraunce adds that they are hierogrammati, sacred writings, but
he then goes on to praise Piero Valeriano for producing a dictionary of these
images to which he adds an expository text on the meaning of the various symbols.
One has to conclude that the motto contains various messages for different audi-
ences. The first of these is that of the esoteric, the initiate and erudite, which
precedes and underpins the evident. What is seen is but a glimpse, a momentary
and miniscule part of what is hidden and greater than the temporal and merely
extant. The lawyers capture this sense of Latinate form of law, true latininity,
in the majesty of the language, and its importance in conveying authority and
sovereignty.19
The Latin motto is thus initially a representation of the magnitude of what
cannot be seen or known. It is esoteric, but more than that represents or at least is
an index of a prior order and greater law. Thomas Palmer, the Oxford rhetorician
who authored the first manuscript book of English emblems around 1565, has as
his epigraph: ‘I will open my mouthe in a parable/I will declare harde sentences
of olde’.20 The reference is ultimately to Heraclitus and the tendency of nature to
hide, and of sovereignty to obscure. The enigma is the natural condition and is
reflected best in the hiddenness of the deity, Deus absconditus, within the Christian
tradition. By the same token, borrowing from the ecclesiastical jurisdiction and
combining it with the temporal, the sovereign too should appear in signs and
manifest an authority that returns to the divinity. What must be made visible is
that not everything is or can be visible, knowable, understood. There is a power
and jurisdiction that cannot be seen and will only be known to those with special
qualifications and greater authority, those who must be believed and in whom we
must have faith.
266 Law and art: justice, ethics and aesthetics

Geffrey Whitney’s manifestations of indebtedness to the divinity have been

noted already, but the first of his emblems is also indicative, beginning the work,
his lengthy juristic poesie, with the motto Te stante, virebo – while you are standing,
I will flourish.21 The picture underneath is of a column, an obelisk again, and in
the Anglican a spire, on a pedestal. The spire is wrapped around by a vine and the
significance of this, as expounded in the explanatory vernacular verse, is that the
Prince, the pillar holds up the Church, symbolized by the vine. The image is of
two jurisdictions joined in one, temporal and spiritual as a single and mutually
necessary enterprise, with the dual polity, palace and church in the background.
The entwined vine also has the connotation of amicitia, and Alciato indeed uses a
very similar picture to emblematize friendship lasting beyond the grave – amicitia
etiam post mortem durans.22 The implication is that the lex amicitia, the voluntary juris-
diction of invention, allegiance and affection governs the relationship between
spirituality and temporality, between the disciplines of theology and jurisprudence
according to their own separate powers. When the sovereign acts, as the sovereign
must, in spiritualibus, as spiritual leader then it is separate and distinct from its tem-
poral capacities with their various possibilities of coactive intervention.
The Latin, the motto or brief maxim, states a primary norm, a moral precept
relating to governance, most usually to the administration of the quotidian, that
has classical references and esoteric meanings. The sources of such mottos are
generally religious and legal but have their basis in the old order of Christian
governance and its ghostly powers. Law is here, and without any necessary self-
reflection, a knowledge of things divine and human, a brocard from the Institutes
that the common lawyers happily convey in the Latin as Iuris prudentia est divinarum
atque humanarum rerum notitia. The lawyer, in other words, learns from nature,
notates the records and truths of the world, the impresa of the divinity, while justice
entails scientia, knowledge of right and wrong. Estienne, whose first book of devices
is devoted to hieroglyphicks, has thus at the pedestal of his richly ornamented title
page an image of a rural landscape, rolling hills and on the highest peak a church
and spire with the motto post tenebras lucem (light after darkness).23 The references
of the motto are many, tenebras connoting shadows, evil, worldly blindness as well
as enigmas and the dark glass of the merely human. The picture, however, is
simple enough and shows the sun rising and the night being dispelled by day.
Aurora musis amica – dawn is the friend of invention – as the legal preparatives, the
early student textbooks on methods of studying law used to say.24
The picture and then, in the emblem properly so called, the explanatory verse
provide a didactic and more accessible moral. A certain caution, however, is neces-
sary briefly to point to the fact that the classical references in the imagery of the
early emblem books were not especially populist or at least the uneducated, the
imperitii, the non-lawyers, would miss the bulk of the meanings while retaining at
most a simple image of a moralizing theme. Whitney’s 78th emblem, a common
one, has the motto noli altum sapere – do not aim too high. The picture is of an archer,
head high, pointing his bow into the sky to shoot down a large bird. Unnoticed, at
his feet a snake is biting his leg. The explanatory verse warns that those ‘who looke
 Flores quae faciunt coronam or the flowers of common law 267

to highe, with puffe of worldlie pride. . . . Their fall is wroughte, by thinges they
doe dispise’.25 The image is evident enough, mortals should attend to mortal
things, the lowly should keep their eyes to the ground. The more classical references
to the dangers of leaving the earth and attempting to understand heavenly
things are less evident although the verse does refer to the dangers that ‘Astronomie’
brings in its wake. Emblem 28 in Whitney offers a more classical image with the
motto In Astrologos – on astrologers. The image is of the winged Icarus falling from
the heavens into the sea. The sun, with the face of the father sketched upon it,
has burned off Icarus’ wings and he falls to his death, often with Phaeton’s carriage
falling alongside him. The picture is an allegory, a warning against meddling in
things spiritual while at the same time suggesting that the sun illuminates the earthly
and natural sphere and salvation should be found by looking there.
The paradox of the emblem is that the evident meaning is only a trace, a
glimpse of the various more esoteric senses that a knowledge of the classics and of
the testaments will provide. The complexity of the emblem does not, however,
mean that it has no didactic function. One aspect of the emblem and the most
obvious purpose of the image is to teach but not to exhaust the norm. The treatises
on devices were very clear that the message should be obscure but not too difficult.
By the same token, the emblem should have an evident – we could say a literal –
meaning but then it must also have ethical, allegorical and spiritual meanings as
well. The picture is didactic but only a beginning to comprehending the meaning.
George Wither is adamant that not too much should be disclosed but then he goes
on, after explaining the instructional purpose of his collection – the emblems are
to encourage to virtue and dissuade from vice – to explain that he has included
four lotteries in his collection so as to entertain. The lotteries are games, riddles
that are answered by reading the emblems. These are expressly a ‘morall pastime’
but Wither goes on to acknowledge ‘I confesse that this Devise may probably be
censured, as unsutable to . . . gravitie’. That said, his justification, and Wither was
also in his youth author of several satires, one of which landed him in prison for a
while, he goes on to argue that games are ever useful in enlivening education and
in activating the will to virtue. ‘I (that was never so sullenly wise) have alwaies
intermingled Sports with Seriousness in my Inventions’.26
The role of the image, and the importance of humour, in educational and
other rhetorical contexts cannot be stressed too much. It deserves a treatment of
its own, a new one that is, but for present purposes I want simply to advert to the
necessity of disseminating the theological message and simultaneously promulgat-
ing the law. The picture, as Legendre frequently advocates, gets under the skin,
and it is the symbol that has effects.27 That is the end result, the product, and I will
return to it. The more immediate question is epistemic. What are the other mean-
ings of the emblem? How are image and humour, serio ludere, to be understood in
relation to law. Here my answer, expressed in the theory of the hybrid invention
of the legal emblem, is unusual. The emblem and particularly the pictorial dimen-
sion of the emblem, has to be understood as the incursion of the spiritual into the
legal, the intrusion of the image as a visual device, into the text of law.
268 Law and art: justice, ethics and aesthetics

The emblem has to be understood in its spiritual sense, within the Augustinian
tradition of sensus spiritualis, and thus as an inheritance within law of another law,
a greater power and meaning. This gains most vigorous expression around the
legal concept not only of sovereignty but of supremacy. The King, and in matters
of common law the Crown, is expressly the hieroglyph of all authority and inherit-
ance, has ‘immediate personal originary inherent power, which he executes, or
may execute authoritate Regia suprema ecclesiastica, as King and Sovereign Governour
of the Church of England, which is one of those flowers, quae faciunt coronam, which
makes the Royal Crown and Diadem in force and virtue . . .’28 The context of this
declaration is ‘the great case of The Commendam in the Chequer Chamber’ mean-
ing an appeal from the Common Pleas to the Court of Exchequer, in a case con-
cerned with the grant – we would say commendation – of a benefice, an
ecclesiastical living. The defendant Bishop, on the strength of his Royal patent,
had sought to reclaim a benefice that the plaintiffs held to be theirs by inheritance.
The question in the case was that of the extent of the Bishop’s power of commendam
and dispensation, of gift and favour. The Exchequer concluded, just for the sake of
completeness, that the Bishop’s was authoritatem ordinariam, limitatam & delegatam, and
so could not be exercised cum ratione insanire, for mad reasons.29
My question, and it will seem ornamental of course, is what is meant by the
expression ‘those flowers’ that make the Crown. What hieroglyphic meaning,
what enigma does this conceal? An initial clue can come from the immediate con-
text of the case, namely that the flowers are aspects of jurisdiction, of supreme
authority, the force and virtue of the Crown and Diadem, of law and ethics. The
flowers are thus signs of something more and other than law. They refer to a juris-
diction that precedes law and can potentially censor and limit legal acts conducted
by delegates of the sovereign. The benefices and favours, inductions and livings,
parsonages and advowsons that lie in the grant of the delegates of the sovereign
are subject to the reasons of their patent. The judges admit that this context, that
of what the Sovereign can do and in what capacities, raises strange questions
(quaestiones alienae) but believe that in tracing the history and limiting jurisdiction by
laws, a certain equilibrium can be obtained between the two distinct powers and
jurisdictions, the spiritual and the temporal.
The flowers pertain to matters spiritual and these are not legal in the positive
and municipal sense. The Sovereign, acting in spiritualibus, acts ‘quasi iuris’, as if at
law, but in fact is subject only to the law of God and to a regime of truth that is
drawn iure divino. This quasi law is a volitional and epistemic jurisdiction pertain-
ing to truth, veritas vera, pura & realis, should you want the full hieroglyph and
cumulative figure. Acting then, as spiritual sovereign, the political head of the
Church can do anything, Papa omnia potest as the Romans would say, and this is
done didacticus, meaning in a tutelary and pastoral capacity. The flowers belong to
an academic and censorial power, a jurisdiction over truth and its inculcation
whereby the spirituality informs and teaches, transmits and disseminates an alien
knowledge and invisible faith. The flowers that make up the crown are the invisible
forces and unseen knowledges that constitute a truth too pure and unknowable
 Flores quae faciunt coronam or the flowers of common law 269

to be available and visible to the general and generally illiterate populace. For
them, there are emblems and other figures that can transmit the norms of govern-
ance, the legitimacy of authority and the recognition of the practical necessity of
administration in the name of the sovereign.
The flowers of common law are the extension and displacement of the political
theology of sovereignty. That the sovereign acts mysteriously and has a jurisdic-
tion that is beyond the law, that operates in spiritualibus, and quasi iuris, an appar-
ently useless power, is not as surprising as the practical and methodological impact
upon common law. There are reasons of law of which law knows nothing.
Agamben has elaborated this point through his crucial distinction between rule
and administration and we can pursue it here through an acknowledgement of the
choral and angelological underpinnings of the administrative domain of govern-
ance as opposed to simple or mere law. Practice has no necessary relation to
norms, any lawyer can evidence that, but at the same time or despite such an
antipathy, there is a substrate of the honorific and the evident, of dignity and
office, that is presumed and upholds the places and offices within which adminis-
tration occurs. Flowers, as the Commendam Case well illustrates, are favours, mean-
ing grants, gifts, benefices, livings within the hierarchy of the Anglican Church,
but in common law, administered by the Inns of Court, the ‘houses of honour’,
these favours become jurisdictional powers, juridically defined franchises and
rules of interpretation, of emendation and action, of invention and creation of law.
The flowers are florusculous. They bloom. They make law in the displaced equiv-
alent of actions in spiritualibus or quasi iuris, meaning for common lawyers accord-
ing to a principle no more definite than Plowden’s semblable reason, semblable ley
which our herald Legh translates as ‘That lawe alloweth must needes be Reason’.30
Or, to borrow Coke’s maxim, non verba sed veritas est amanda – it is not the words but
the truth that must be loved.
The truth belongs to the other jurisdiction, to the spirituality that was enfolded
into common law as its higher power and supremacy as well as its Latin structure
and root. Being very direct, because my permitted space is now much diminished,
the legal emblems were the most vivid of representations of the flowers of law,
of the unseen and greater power, the truth that resides in the records and other
practices of law. In the civilian tradition, of which the common lawyers were far
from ignorant, much less so indeed than today, the flowers of law were equally
expressed in the dictionaries of brocards, of legal maxims, that appeared under
the title of Flores legum, and sometimes with the subtitle oikonomia. These were not
rule books in our sense but rather dictionaries of principles and maxims, commen-
taries and aphorisms which would allow judges to invent and administrators to
act. These were the norms of construction of law along with the precepts of honour
and favour by means of which the gift of law and the practices of emendation
devolved. The title page, with its flowers, of the 1507 edition of the Flores has the
appropriate subtitle of sive congeries auctoritatum Juris civilis, meaning a compilation,
a congeries of authorities drawn from the Corpus iuris. Only the swiftest of perusals
of the brocardica and regulae reproduced shows that much more is involved, and at
270 Law and art: justice, ethics and aesthetics

a far less explicit, a properly anagogic level of meaning, than mere black letter or
municipal regulation. Page one, entry number 8: Anima est preferenda ceteris rebus –
the spirit is to be preferred, otherwise things. Other maxims are more recogniza-
ble, such as Regula 70 in Thomasettis’ 1642 Flores, reading: ‘Statutory canons
are to be observed by all.’ Regula 50 states that ‘Conjunction strengthens argu-
ment’ and in the commentary Thomasettis points out that what the ius amicitiae
erases, can be expunged for that reason, ad amicum. And to this one can add the
commentaries and rulebooks that were printed Florilegium.31 Yet excuse me, for
these are Latin regulae, not English common law and so my point needs to be trans-
lated yet again and finally into the flora of vernacular law.

Common law of the senses

To apprehend the powers of the Crown explicitly as flowers tells us that common
lawyers were not opposed to the latinate laurels of law. They borrowed from the
civilians and annexed their jurisdictions, their language, their flowers. I have
offered a sense of this, of the hybrid forms and radical pictorial inventions that
emerged from the collision of the two polities and two laws. I will end by briefly
addressing what became of this enfolded and intertwined spiritual and pictorial
jurisdiction. Why did the legal emblem withdraw? Surprisingly, the answer is that
it never did: the emblem as picture became so successful that it transformed from
the mid-eighteenth century into novel normative forms. Portraits, landscapes, car-
toons, theatre, film, advertising and television took over the more obvious aspects
of the emblem and gave them even more popular forms. As for the lawyers, they
kept their collections, their interminable libraries and codes, their published and
unpublished reasonings, their maxims and adages, humorous and serious, along
with the vestments and notations, their colours and figures, together with all the
other facets of their hierarchies and manners that give visible dignity and spec-
tacular presence to the outings of law.
It has also to be said that the flowers of law themselves are less visible as the lex
operandi of the common lawyers. They press their flowers in dictionaries, hide them
in black letter treatises but they are there nonetheless for the finding. Their place,
the use of the flowers, and here I really must draw to a close, let the petals fall
where they may, is first a question of acting quasi iuris, as if in law. For the common
lawyer this also means action ‘as if’ or quasi spiritually. The words of the law, let’s
stick to that, contain more than they say. The texts are not just words. They have
anima, spirit, and that is to be preferred and to be followed. The words are in
Lacanian terms enigmas, things half said, references to erudition and history, plu-
rality and invention, congeries and collections that could not and cannot be
reduced to definitions, black letters, mere rules. There is something more, a retro-
spect and prospect, the possibilities of recollecting and elaborating the philology
and heraldry that gives meaning to imprint and print.
The spiritual jurisdiction, last point, operated didacticus – as a pedagogy. Flowers
are not laws. They are more than law, they are the means and meanings by which
 Flores quae faciunt coronam or the flowers of common law 271

laws are made, and things are done. There needs to be what is properly termed
‘conusance’ of the flowers of law, of their modalities and operations. The meta-
phor of the flowers of law and of the florusculous – which term I take from the
glossography of the lawyer Thomas Blount – opens up the question of jurisdiction,
the matter of the colours of law and of the honorific codes that it conceals to nor-
mative inspection and invention. Operating in animated modes, providing colour,
which is to say meaning, recognizing invention and the power of doctrines and
norms that are neither specifically legal nor proximately Anglican tells us that a
lawyer is always at best more than a lawyer, just as law is never simply law.

Notes
1 G. Whitney, A Choice of Emblemes, and other Devises, For the moste parte gathered out of sundrie
writers, Englished and Moralized (1586) dedicatorie.
2 On the origins of the emblem, see P. Laurens, ‘L’Invention de l’emblème par André
Alciat et le modèle épigraphique’ (2005) 149 Académie des inscriptions et belles-lettres 883.
3 G. Wither, A Collection of Emblemes Ancient and Moderne (1635) A Preposition to this
Frontispiece. The source of the emblems themselves is Gabriel Rollenghagen, Nucleus
emblematum selectissimorum (1611).
4 T. Philipot, A Brief Historical Discourse of the Original and Growth of Heraldry (1672) at 1.
5 Wither, Collection, at 3 (lex regit et arma tuentur).
6 G. Whitney, A Choice of Emblemes (1586).
7 J. Selden, Titles of Honor [1614] (2nd ed. 1631) offers a comprehensive listing and elabor-
ation of the notitia dignitatum relevant to English interests, along with an account of
proper behaviours – not simply modes of address and title, but also which parts of the
sovereign could be embraced – from foot, to hand to face.
8 Sir J. Ferne, The Blazon of Gentrie: Divided into two parts. The first named The Glorie of Generositie.
The second, Lacyes Nobilitie (1586) at 5.
9 Trevor’s Llyfr Arfau (Book of Arms) is translated in E.J. Jones, Medieval Heraldry (1943).
10 G. Legh, The Accedens of Armory (1572) at fol. A2r.
11 Legh, Accedens, at fol. 135v.
12 G. Agamben, Le Règne et la gloire. Pour un généalogie théologique de l’économie et du gouvernement
(2009), and deftly elaborated in Thanos Zartaloudis, Giorgio Agamben: Power, Law, and the
Uses of Criticism (2010).
13 John Bossewell, The Workes of Armorie (1572) at fol. A1r.
14 Bossewell, Workes, at fol. 10r.
15 David Murray, Lawyer’s Merriments (1912) at 206 et seq. treating mainly comic illustra-
tions. The treatise, which is marvellously informative and frequently insightful, starts,
first line of the Preface, entry for content: ‘Law is a serious matter, but the outside world
seems to find in it a perpetual source of entertainment.’ (v)
16 V. Hayaert, Mens Emblematica et humanisme juridique. Le cas de Pegma cum narrationi-
bus philsophicis de Pierre Coustau (1555) (2008) is the most important contemporary
study. On the satirical subtexts of the emblems, see Hayaert, ‘Calumnia, de Famosis
libellis et ripostes aux attaques imjurieuses: la verve satirique de l’emblème’ (2010)
textimage. Revue d’étude du dialogue texte image 1.
17 H. Estienne, The Art of Making Devices. Treating of Hieroglyphicks, Symboles, Emblemes,
Aenigmas, Sentences, Parables, Reverses of Medalls, Armes, Blazons, Cimiers, Cyphers and Rebus
(1648) at 7.
18 A. Fraunce, Insignia armorum, emblematum, hieroglyphicorum et symbolorum (1588) fol. M2r.
For discussion, see P. Goodrich, ‘Legal Enigmas – Antonio de Nebrija, The Da Vinci
Code and the Emendation of Law’ (2010) 30 Oxford Journal of Legal Studies 71.
272 Law and art: justice, ethics and aesthetics

19 F. Bacon, Principall Rules and Maxims of the Common Lawes of England, London: More,
1630; William Noy, The Ground and Maxims, and also An Analysis of the English Laws [1648]
(1808).
20 Thomas Palmer, Two Hundred Poosees [1565] (facsimile edition, 1988).
21 Whitney, Choice of Emblemes, at 1.
22 Alciatus, Emblemata (1551) at 172.
23 H. Estienne, The Art of Making Devices: Treating of Hieroglyphicks, Symboles, Emblemes,
Aenigmas, Sentences, Parables, Reverses of Medalls, Armes, Blazons, Cimiers, Cyphers and Rebus
(1648 edition), title page.
24 W. Phillips, Studio legalis ratio or Directions for the Study of the Law (1667).
25 Whitney, Choice of Emblemes, at 78. For an erudite discussion of the theologico-political
background to this emblem, see R. Campe, ‘Questions of Emblematic Evidence:
Phaeton’s Disaster, with Reference to Pierre Legendre’s Theory of Emblems’, Glasgow
Emblem Studies, 1999, 1.
26 Wither, Collection of Emblemes, at A1v (To the Reader). On Wither’s satire and imprison-
ment, see P. Goodrich, ‘Lex laetans: Three Theses on the Unbearable Lightness of Legal
Critique’ (2005), 17 Law and Literature 293.
27 P. Legendre, Dieu au mirroir. Etude sur l’institution des images (1994) ch. 3 (id efficit quod
figurat).
28 Commendam Case. John Colt and Glover against the Bishop of Coventry & Lichfield (1616)
Mich. 10 Jac. Rot. 2642, Hobart 140. For a succinct account of commendams, see
J. Ayliffe, Parergon Juris canonici Anglicani, or a Commentary by Way of Supplement to the
Canons and Constitutions of the Church of England (1726) at 191–93.
29 Commendam Case at 143 and 158.
30 Legh, Accedens of Armory, fol. 133r. I reproduce the relevant device from Legh and offer
discussion in Goodrich, ‘Devising Law’, in R. Sherwin and A. Wagner (eds), A Treatise
on Law and the Visual (forthcoming, 2011).
31 I. Gothofredi, Manuale Iuris, seu parva iuris mysteria (1654), whose third book is titled
Florilegium Sententiarum Iuris, Politicarum, & communium notionum.
Chapter 17

Law, ethics, and the imagery

of suffering
Panu Minkkinen 1

Ethics and suffering

Why does law seem to fail so consistently in its attempts to address human
suffering?
Modern law is dedicated to the procedural formality of the trial. Within the
trial, law imposes narrative meaning to suffering and consequently gives it a utili-
tarian value in the task of assigning responsibility. Even truth commissions and
other institutional applications of transitional justice that are often seen as a poten-
tial antidote to law’s formal limitations work essentially in the same way. The
trivialisation of suffering through causal narratives – ‘x injured y by doing z’ – may
perhaps assist in the therapeutic continuation of a damaged social order, but it
falls necessarily short of any profound way of coming to terms with the agony of
the injured individual. The law views injury primarily as a breach against itself
regardless of whether we are talking about criminal or civil wrong. The trial fails
to satisfy the Kantian categorical imperative by using the injury suffered by a
human being as a means to reinstate its own authority. Accordingly, this chapter
will claim that in order to be able to deal with the trauma in a way that could
involve the taking place of a genuine ethical dimension, suffering would have to
be, as Emmanuel Levinas argues, considered as ‘meaningless’ and ‘useless’, as ‘for
nothing’ in a radically non-utilitarian way.
But instead of discussing how signifying narratives trivialise suffering in the
workings of the trial that would be the most obvious example from the world of
law, this chapter focuses on how human agony is portrayed in art. Why has one
artistic portrayal of suffering had such devastating cultural effects whereas another
seemingly similar work of art fails to move us in the same way? Why does one
portrayal ring ‘truer’ than another? The same basic idea of the ethical dimension
of ‘useless’ and ‘meaningless’ suffering is thus carried over to the domain of the
visual arts: the portrayal of suffering is ‘pure’ if it manages to resist and to withhold
the narratives that usually saturate the imagery with meaning.
The reason why Levinas’s ethics has caused such violent tremors in the inter-
disciplinary study of law and the humanities is not because it is yet another theo-
retically disguised attempt to revive the longing for transcendence of traditional
274 Law and art: justice, ethics and aesthetics

natural law but, rather, because taking Levinas’s radical humanism seriously
would require such a thoroughly revised understanding of law itself. Even before
self-knowledge, before I am able to utter the words ‘I am’ – and the substitution of
the passive voice with the first person singular is significant for me here – I must
have a necessary relationship with the Other. It is not a relationship that is
prescribed or regulated by either internal or external laws, because only the
Other makes prescription possible to begin with. So while the law claims that it
requires me to express love for my neighbour in a variety of ways, it can only do
so because the Other has already appeared to me in her irreducible majesty and
strangeness.
In this way Levinas’s ethics is ‘pre-ontological’ and the ‘first philosophy’; the
Other precedes the self-awareness of my Being, my inclination to assimilate the
world into a plurality of my likenesses, into a totality. But in the midst of my ego-
centric frenzy to assimilate and appropriate, the Other abruptly appears to me as
a face that resists my efforts to absorb her into my world. The face presents itself
to me as a countenance that my inclination to exist wishes to negate by making it
part of my world, and in this sense the Other is immediately vulnerable. But this
very vulnerability also calls to me as an appeal that requires a response.
Responsibility, literally my ability to respond to the appeal of the Other, is the
fundamental ethical relationship that precedes any attempts to prescribe what my
response should substantively be.
Nowhere can the appeal of the Other be heard more clearly than in the phe-
nomenon of suffering. In the late essay ‘Useless Suffering’, Levinas claims that
suffering includes within itself an apparent contradiction. It is surely data, a quan-
tifiable fact that can be traced into the consciousness of the victim and that medi-
cal pain research can duly verify. But the very nature of suffering prevents from
ordering its data into a meaningful whole or unity. The contradiction that arises
from the impossibility to give this verifiable data meaning accounts for suffering’s
misery, for its woe. Woeful and meaningless suffering is always passive. Passivity
is, however, not understood in opposition to activity, but as a vulnerability or an
ordeal that is in essence even more passive than experience. And this is what
makes suffering an evil.2
The passive evil through which suffering must be endured and that over-
whelms its victim more violently and cruelly than any intentional violation of
his personal integrity also renders suffering ‘useless’ as the title of Levinas’s essay
suggests: suffering is essentially pointless; it is ‘for nothing’. But, curiously perhaps,
for Levinas the uselessness of suffering also accounts for the possibility of an
ethics:

Is not the evil of suffering – extreme passivity, powerlessness, abandonment

and solitude – also the unassumable, whence the possibility of a half opening,
and, more precisely, the half opening that a moan, a cry, a groan or a sigh
slips through – the original call for aid, for curative help, help from the other
me whose alterity, whose exteriority promises salvation?3
 Law, ethics, and the imagery of suffering 275

In Levinas’s terms, then, only by responding to the appeal of the Other can
intrinsically useless suffering become just within the ethical perspective of the
interhuman. Within this perspective, Levinas identifies two radically different
types of suffering. There is the suffering that resides in the Other. The Other’s
suffering is unforgivable to me, and as such it solicits me and calls me, demanding
a response. But there is also the suffering that is in me, my own empathic experi-
ence of the suffering of the Other. The constitutional uselessness of suffering can
only take on a sense in me by becoming my suffering for the suffering of the
Other.4
Extrapolating an ethics from suffering would not seem to be the most obvious
thing to do. The aim of this chapter is, however, not to develop an elaborate theo-
retical account of how Levinas does this – it has already been done by people
more qualified than I5 – but to isolate and investigate the single claim: confronting
the phenomenon of suffering introduces a cut or a wound that prevents me from
totalising my world and thus allows the taking place of an ethics. The opening
does not establish ethics in any foundational way, let alone prescribe what norma-
tive principles an ethics should include. It can only make the event possible if and
when I respond to the Other’s appeal.
The decision to focus on suffering is also in part a criticism of a romantic strain
in contemporary jurisprudence that sees recent developments in the theory of
transitional justice as a possible solution to the perceived formal limitations of
modern law.6 In a companion text to this chapter,7 I have in much a similar way
dealt with the impossibility of unconditional forgiveness in the work of truth com-
missions through the figure of the resentful and unforgiving victim. The persistent
resentment of the victim is interpreted as a prolongation of the original trauma
that he has been subjected to. In their attempts to ‘conditionalise’ forgiveness in
exchange for reconciliation and social restoration, truth commissions function
very much like the legal trials that they are meant to replace: both contextualise
the events with narrative frameworks in order to give meaning to the victim’s
suffering.
Finally, this chapter will attempt to develop a possible theoretical affinity
between Levinas and Walter Benjamin. While its point of departure is an admit-
tedly limited and isolated reading of Levinas, the chapter will try to argue that the
ethical dimension that Levinas finds in the phenomenon of suffering is akin to
a critical power that Benjamin ascribes to all true art: the ‘expressionless’. This
critical power will be examined first in relation to a renowned portrayal of human
agony in the visual arts and later through modern interpretations of the same
painting that have all tried to address the moral and ethical ambiguities related to
the phenomenon of suffering.

The imagery of suffering

The complex and intimate relationship between suffering and ethics that Levinas
identifies can be illustrated through the imagery of suffering, and especially
276 Law and art: justice, ethics and aesthetics

through passion art in the Christian tradition.8 Being the popular culture of its
day, the original aim of passion art was to convey the teachings of the Church to
the illiterate masses through retables, prayer book illustrations, the Via Crucis and
stained glass windows. Only later did passion art take on the task of addressing
more profound religious truths.
As a form of passion art, crucifixion images are immediately recognisable as
representations of suffering irrespective of the viewer’s background. But as far as
the above outlined Levinasian notion of ‘useless’ suffering is concerned, they seem
to be caught in a paradox. They are clearly empathic representations of the suffer-
ing of an Other, of the man-God as fellow human being and neighbour. But at the
same time, crucifixion images betray the suffering they depict because they can
establish the empathic rapport between viewer and the Other only through a
supportive narrative of redemption.
Crucifixes are not merely depictions of suffering but, more specifically, images
of it. This chapter is, then, less about crucifixions as such but rather about figur-
ations of suffering, about ‘imaging’ suffering. The central claims should hold
true regardless of whether we are talking about medieval altarpieces or contem-
porary news photos of the abused inmates of Abu Ghraib. In passion art, pain and
suffering are often portrayed as something purposeful or ennobling. Beginning
with the mundane maxim of ‘finding strength in adversity’, the pinnacle of this
idea of ennoblement is Christian martyrdom and ‘redemption through blood’.
The imposition of meaning through the signification of ‘imaged’ suffering estab-
lishes the utilitarian narrative in which one suffers ‘for something’, an ultimately
immoral ‘justified suffering’ that Levinas so vehemently opposes. In its legal vari-
ants, suffering serves a purpose in the rectification of wrongs by assigning respon-
sibility or in the continuation of a social order through reconciliation. So with the
help of a Levinasian starting point, a debate in art theory hopefully finds a parallel
in law.
One of the best known examples of religious popular culture turned high art –
later commercialised as countless reproductions at the marketplace – is the cruci-
fixion scene of the Isenheim Altarpiece.9 Even though the altarpiece is well known
as images, its history is far from unambiguous. Painted by an artist known as
Matthias Grünewald between 1512 and 1516, it was originally commissioned for
the chapel of a monastic hospital of the Antonite order near the village of Isenheim
in Alsace. Grünewald’s painted panels and the Late-Gothic sculpture by Nicolas
von Hagenau (c. 1460–c. 1526) were mounted on a wooden predella, and the
crucifixion made up the central panel of the closed altarpiece. By opening and
closing the folding wings, the altarpiece provided three different scenes for the
various festive events in the ecclesiastical calendar. The hospital was dedicated
mainly to the treatment of those afflicted by what was then known as ignis sacer or
‘St Anthony’s fire’. The disease that was later ascribed to the poisonous Claviceps
purpurea fungus that infects rye first brought about convulsive symptoms through
its psychoactive alkaloids, but in its later stages it often developed into violent skin
eruptions leading to amputations and possibly even death.10
 Law, ethics, and the imagery of suffering 277

After ‘St Anthony’s fire’, today known as ergotism, became curable and the
hospital closed down, the altarpiece was dismantled. The detached paintings and
sculpted figures all survived the iconoclasm of the Reformation in storage. Next
they were rescued by local government officials from Robespierre’s revolutionary
looters in 1793, and some half a century later they were moved to a former
Dominican convent that had been converted into a museum in nearby Colmar
some 75 kilometers south of Strasbourg. Since then the paintings have changed
hands between the French and the Germans at about the same rate as the prov-
ince of Alsace until, after World War II, they were returned to Colmar where they
have remained.11
There is not that much that is known with certitude about the artist. According
to the authoritative version, the name ‘Grünewald’ is an error made by the
German Baroque painter and art historian Joachim von Sandrart in his encyclo-
pedic presentation of German art Teutsche Academie in 1675.12 The artist’s real
name is allegedly Mathis Gothart, usually followed by his matronym Nithart, born
sometime between 1470 and 1485 in Würzburg. This Bavarian city was one of the
epicentres of the Bauernkrieg, a popular uprising affiliated with the Reformation
made up of various peasant revolts in the early 16th century. Gothart Nithart was
a relatively celebrated artist and waterworks engineer in his own time who report-
edly died of the plague in 1528 in Halle after which he quickly fell into obscurity.
He was rediscovered only when the Isenheim Altarpiece, formerly presumed to
have been the product of the genius of Albrecht Dürer, was attributed to Gothart
Nithart towards the end of the 19th century.13 Only a handful of paintings and
sketches that have undeniably been identified as Grünewald’s have survived.
Standing in larger-than-life proportions, the Isenheim crucifixion portrays the
scenes at Golgotha in luminous colours against a dark and menacing background.
The five sets of figures are all painted from slightly different perspectives and in
varying scales. The centre of the picture is dominated by the oversized crucifix
that also seems to illuminate the ground on which the remaining figures stand.
At the far left, painted slightly from below, a swooning Mary is consoled and
supported by John the Evangelist, himself evidently struck by grief. On their right,
a diminutive Mary Magdalene, this time painted from above, is lost in delirious
prayer. On the right of the cross, the sacrificial lamb, the symbol of the Christ
atoning for the sins of man, bleeds into a chalice. And finally at the far right,
John the Baptist has arisen from the dead and stands serenely pointing his finger
at the Christ. The words ‘Illum oportet crescere me autem minui’ (‘He must increase,
but I must decrease’, John 3:30) are written beside him. Some of the painting’s
themes are evidently Gothic, but in its naturalism and use of colour Grünewald’s
crucifixion is typically a work inspired by the Renaissance. And so the painting
has become a paradigmatic exemplar of what has been called the Northern
Renaissance.14
After nearly four hundred years of obscurity, the Isenheim Altarpiece was
rediscovered in the late 19th century and quickly recognised as a long forgot-
ten masterpiece. Although all panels of the polyptych have been duly praised,
278 Law and art: justice, ethics and aesthetics

the staggering brutality with which the suffering of the Christ is portrayed in the
crucifixion scene has particularly received the most attention.
In his suffering, this man-God is unable to bear the attributes of godliness and
divinity that most devotional paintings of the era required the figure of the Christ
to embody. Indeed, if we compare the Isenheim crucifixion to, for example, Italian
Early Renaissance paintings of the same era, we find here nothing of the wiry
physique that later developed into the athletic Christ of High Renaissance who
conquers death through his sacrifice (as in, e.g., Signorelli’s The Crucifixion with
St Mary Magdalene). This is the theological scandal: Grünewald’s Christ, rotting
away on the cross, is simply too human for a world obsessed with deities and
redemption. By emphasising the scandal, that is, by dissociating the depicted suf-
fering from the mythological and theological framework that is provided by the
narrative of the crucifixion, the ethical underpinnings of the image become more
apparent. Once the framework and the accompanying mythological narrative
have been isolated, the Christ is left to suffer ‘for nothing’.
Grünewald’s painting can, of course, be considered simply as a masterful exem-
plar of Christian devotional art, but the ability to concentrate on the Christ’s suf-
fering and, at the same time, to defocus away from the Christian mythology that
surrounds the imagery is why it has been able to speak to secular modernity.
Consequently, the newly-found Isenheim Altarpiece quickly became a standard
point of reference for 20th-century art.15 In 1930 Pablo Picasso completed a small
painting entitled Crucifixion,16 and in 1932 a series of ink drawings and studies fol-
lowed that were explicitly attributed to the influence of Grünewald’s crucifixion.17
Most commentators extend Grünewald’s influence to Picasso’s masterpiece from
1937, Guernica.18
Diane Apostolos-Cappadona argues that although Grünewald’s vision of agony
and suffering influenced Picasso’s work throughout the 1930s, Picasso only
attempted to capture the ‘haptic’ content of the painting, that is, the ‘emotive
physicality of the human body’, while at the same time he clearly disregarded its
religious content. Furthermore, Apostolos-Cappadona insists that Picasso did not
draw his vision of haptic agony from the tortured body of the Christ but from
Mary Magdalene at the foot of the cross:

[. . .] his vision was empathetic to the agonized hapticity of the Magdalen.

Thus, Picasso emphasized all he thought available in the modern world: the
cathartic experience of art and the sensitive dynamism of woman. Even in the
age of secular spirituality, the theme of the ‘essence of agony’ continued to be
reinterpreted through the hapticity of the female body.19

While plausible, Apostolos-Cappadona’s interpretation is only possible if the

figure of the crucified Christ is downplayed as one of Picasso’s motifs. This may
well be the case in the 1930 painting, but the ink drawings and studies from 1932
that are explicitly attributed to Grünewald’s influence would call for quite a differ-
ent reading. Indeed, a recent exhibition catalogue notes that although the themes
 Law, ethics, and the imagery of suffering 279

of the 1930 oil painting and the 1932 ink drawings are the same, the focus has
clearly changed. Picasso now concentrates specifically on the motif of the crucified
Christ while the accompanying figures that were central in the oil painting are
now either ‘vaguely insinuated by a few ink traces’ or indistinct white silhouettes
against the black background. But the theme of the crucifixion is merely a source
for Picasso to develop his own vocabulary of pain and suffering that a few years
later culminated in Guernica.20. Even when working with the crucifixion theme,
Picasso’s secularised vision of Christian iconography seems to trace the essence of
suffering in the ‘haptic’ physicality of the Christ’s agonised body, and it can do so
only by bracketing out the religious narrative that traditionally saturates the
imagery. By doing so, Picasso the self-professed atheist reiterates the theological
scandal that is already potentially present in the Isenheim Altarpiece.

Suffering without narrative

Francis Bacon decontextualises the crucifixion motif from its mythological and
narrative framework in a very similar way. More immediately influenced by
Picasso’s art of the 1930s in general than any single work, Bacon’s relationship
with Grünewald is in a manner of speaking mediated.21 Bacon painted his first
crucifixion as early as 1933, and later the crucifixion developed into one of the
most important themes of his art. Not only is the crucifixion a central motif for
Bacon, but he also painted his most important crucifixion paintings as triptychs
which was, of course, one of the preferred forms of medieval devotional art such
as altarpieces. But despite these seemingly obvious Christian references, Bacon’s
art conveys quite a different message. John Russell recounts the effect that Bacon’s
first widely acknowledged painting Three Studies for Figures at the Base of a Crucifixion
had when it was first exhibited at the Lefevre Gallery in London in April 1945:

Their [PM: the figures’] anatomy was half-human, half-animal, and they
were confined in a low-ceilinged, windowless and oddly proportioned space.
They could bite, probe, and suck, and they had very long eel-like necks, but
their functioning in other respects was mysterious. Ears and mouths they had,
but two at least were sightless. One was unpleasantly bandaged.22

The 1944 Three Studies remains the most important of Bacon’s crucifixion trip-
tychs. The panels portray three fury-like figures gleefully witnessing an apparent
crucifixion that is itself manifestly absent notwithstanding the painting’s name. By
contrast, in Three Studies for a Crucifixion nearly two decades later, the right-hand
panel, often attributed to the influence of 13th-century Florentine artist Cimabue,
depicts the crucified body. By decentring the deformed carcass, Bacon has pulled
the focus to the right, destabilising the alleged aesthetic power of the triptychal
form. Finally, in Crucifixion from 1965, the view focuses unambiguously on the
crucified carcass in the centre panel, and the tensions of the painting are for the
most part created between the drama of the crucifixion and the casualness with
280 Law and art: justice, ethics and aesthetics

which the identifiable human figures portrayed in the outer panels observe the
events.23
Russell points out that for Bacon a ‘crucifixion’ is neither a descriptive title nor
a reference to an actual event. It is a ‘generic name for an environment in which
bodily harm is done to one or more persons and one or more persons gather to
watch’.24 What does this imply? Firstly, then, Bacon’s art is as much about inflicting
pain as it is about the experience of suffering, and this introduces the ethical ambi-
guity that both Bacon’s critics and his public have reacted strongly against. In the
absence of clear moral direction, Bacon’s crucifixion theme has often been inter-
preted as a vehicle for the artist’s personal cynicism. Secondly, Bacon’s witnesses,
the furies that voluntarily gather to observe the infliction of pain at the base of the
crucifixion, are entranced and mesmerised by what they are seeing. This voyeurism
can only re-enforce the ethical ambiguity that the paintings are said to represent.25
If Picasso was initially more interested in the figure of Mary Magdalene deliri-
ously praying at the foot of the cross in Grünewald’s painting, Bacon focuses on the
complex emotional and sensory ties that bind the spectator to the crucified carcass,
be it visible or not. Anti-religious rather than atheist, Bacon often stressed that his
paintings portray ‘a’ and not ‘the’ crucifixion. Although he was himself well aware
that adopting the crucifixion theme may impose into his art the narrative or liter-
ary structures that he deplored as a non-figurative artist, he comments that:

[. . .] I haven’t found another subject so far that has been as helpful for cover-
ing certain areas of human feeling and behaviour. Perhaps it is only because
so many people have worked on this particular theme that it has created
this armature – I can’t think of a better way of saying it – on which one can
operate all types of level of feeling.26.

Bacon’s reference to the armature of the plastic arts27 seems to suggest that the
crucifixion theme is merely a skeletal structure supporting his aesthetics rather
than an expressly articulated moral or ethical condemnation of the human condi-
tion as, for example, the 1944 Three Studies was often seen in the aftermath of World
War II. The armature implies a similar disjointing of the image from the narrative
context of the crucifixion as in the case of Picasso. But Didier Anzieu notes that, in
Bacon’s treatment of the crucifixion theme, one can still recognise the traces of a
sacred history. But it is a history that has not lived up to its promise of redemption.
It is a Christian history, but Anglican rather than Catholic or Orthodox, an insular
rather than a Mediterranean reading of it.28 It is suffering but left without the
promised redemption, and the emphasis given to the betrayal is what Anzieu iden-
tifies as being particularly English about Bacon’s art. Gilles Deleuze, on the other
hand, uses the notion of ‘isolating the Figure’ to designate Bacon’s art as an inter-
mediate ‘realist’ position between the figurative and the non-figurative:

The figurative (representation) implies the relationship of an image to an

object that it is supposed to illustrate; but it also implies the relationship of
 Law, ethics, and the imagery of suffering 281

an image to other images in a composite whole which assigns a specific object

to each of them. Narration is the correlate of illustration. A story always slips
into, or tends to slip into, the space between two figures in order to animate
the illustrated whole. Isolation is thus the simplest means, necessary though
not sufficient, to break with representation, to disrupt narration, to escape
illustration, to liberate the Figure: to stick to the fact.29

In the triptychal form, Bacon often brings together elements that are originally
unrelated. Firstly, there is the historical dimension of the form and its religious
connotations as a direct reference to the medieval winged altarpieces such as
Grünewald’s. But secondly, as a clearly modern reference, the three panels also
suggest a panoramic view that envelops the viewer from three sides. The two con-
flicting elements bring about the contradiction that isolates the image from the
narrative. As Wieland Schmied notes:

Whereas the first element establishes a sense of distance and makes the pic-
ture look remote and unapproachable, the second feature is intended to have
exactly the opposite effect: the viewer is confronted directly with the work,
which encircles him and forces him to engage with it. These contradictions
are compounded by a further element which offered Bacon the possibility of
breaking down a complex pictorial situation into separate components and
dealing with several corresponding figures, while at the same time retaining
the option of cutting the narrative thread at will and mercilessly expunging
any hint of narrative coherence that threatened to creep into the picture.30

Although Bacon was never too keen to discuss his own art in abstract and gen-
eralised terms, he had an interest in the theoretical writings of Michel Leiris who
also became a close friend. Russell traces Leiris’s initial influence to a book on bull-
fighting that Bacon received from the author shortly after their first encounter.31
In a central passage allegedly highlighted by Bacon, Leiris quotes Baudelaire and
claims that beauty is only possible if something accidental or contingent intervenes
producing an imperfection or a crack that releases beauty from its glacial and stag-
nant state. For Leiris, beauty is not simply an intelligible combination of opposing
elements. In their reciprocal antagonism, one element tends to actively erupt in its
opposite ‘making its mark like a wound, like damage’. Beauty may suggest the exist-
ence of an ideal and logical order, but this order must always include within itself
the seed of its own destruction. Or if it is the destructive element that is identified
as beauty, then it must be illuminated by something ideal:

Thus beauty – by definition a function of an autodestruction and a self-

renewal – will sometimes appear as tranquillity haunted by a potential storm,
and sometimes as a frenzy that checks itself and seeks to contain the inner
tempest behind an impassive mask. But beauty always will occur between
these two poles acting as living forces: on the one hand (the right one) there
282 Law and art: justice, ethics and aesthetics

will be the element of immortal loveliness, sovereign, sculpted; on the other

(the left hand) – on misfortune’s side – will be the sinister element, with the
accident, and sin.32

In a text specifically dedicated to Bacon, Leiris comments that Bacon’s cruci-

fixions limit their thematic relationship with the man on the cross to the carcass
that has been hung up on display without reference to either the myth or the
melodrama. Bacon’s triptychs are all the result of secularising and updating
ancient religious paintings that made the connection between the man-God and
the resurrected body through the act of crucifying. But all that remains of this
iconographic imagery is its ‘majestic arrangement’. It is now complemented with
a very different content including nothing that could be summarised in a cold and
logical account. Bacon may, for example, append minor motifs to the painting,
but they are not the saintly figures or peasant scenes traditionally found at the base
of the cross or in its background. In Leiris’s view, the Christian iconographic trad-
ition may define the architecture of Bacon’s triptychs, but it is present only as a
purely formal structure.33 Leiris’s insistence on formality and structure are remi-
niscent of Bacon’s own metaphor of the ‘armature’.
Leiris insists that in Bacon’s crucifixions the events as narrated by the Evangelists
have been banished from the paintings. In their stead is a ‘seal of blood’ in the
furies that dominate most of Bacon’s triptychal crucifixions. But even if such com-
positions are undoubtedly marked with a tragic character, Leiris maintains that
Bacon’s tragedy takes place in the absence of all pathos and without a single ele-
ment of theatricality. Only the rigidity of the general structure is set into play with
the ‘marmorised consistency’ of the presented figures, and this, Leiris explains,
conforms to the very nature of tragedy. But unlike drama where actions are ani-
mated by sentiments and circumstances, the tragedy that Bacon portrays con-
structs its characters from a single block and makes them puppets of their
obligations or misfortunes. This is how Bacon makes manifest his profoundly real-
ist spirit even when working with elements of myth:

[. . .] what he shows us does nothing but exists there, epiphanically, and with
a texture that is too dense for us to be able to reject it.34

Leiris’s aesthetics may lack the humanistic appeal of Levinas’s philosophy,

but both are explicitly opposed to a totalising tradition of thinking. Leiris’s ‘left’
element pierces the totality of an ideal order leaving it wounded in much a similar
way as the suffering that, for Levinas, is unable to take on meaning. The aestheti-
cal wound that enables beauty to take place also provides the cut through which
the ethical call of true art can be heard. In Bacon’s triptychs, the call reaches the
viewer in the paradoxical position where he has no option but to identify himself
with the voyeur-ghouls at the foot of the cross and, consequently, to acknowledge
his ambiguous double-role in witnessing pain. The scene of suffering both attracts
and repels; it enables both condemnation of and participation in the suffering of
the Other. And it is between these opposing poles that an ethics can take place.
 Law, ethics, and the imagery of suffering 283

Suffering, ethics and the expressionless

Grünewald’s painting of the crucifixion has reportedly also been on the wall or
desk of numerous thinkers. For example, the Swiss theologian Karl Barth who
always kept a picture of the painting above his bedside table developed his notion
of God as the ‘wholly Other’ with reference to the dialectic of the Christ and John
the Baptist in the painting.35 More recently Jean-Luc Nancy has written a short
essay on some theological aspects of the altarpiece that Martin Buber originally
brought up.36
Gershom Scholem recounts that Walter Benjamin also had a picture of the
Isenheim Altarpiece on the wall of his study for many years. In 1913 Benjamin
had made a special visit to Colmar to see the original paintings. Scholem observes
that in Benjamin’s notes from that period, he is beginning to address the over-
whelming power of the paintings as what he would come to call the expression-
less.37 Indeed, in an essay a few years after his visit, Benjamin specifically comments
on how Grünewald paints his sacred figures. Sanctity is depicted in the radiance
of the halos, but, Benjamin concludes, the radiant can be true and expressionless
only if it is refracted from the nocturnal.38 This is what Grünewald seems to be
doing in the Isenheim Altarpiece where the crucified Christ provides the light in
the painting.
In her analysis of historical court trials, Shoshana Felman uses Benjamin’s
notion of the expressionless to depict the mute traumas that the language of law
will never be able to articulate. At the same time, she notes a possible theoretical
affinity between Benjamin and Levinas:

[. . .] expressionless [. . .] are those whom violence has deprived of expression;

those who, on the one hand, have been historically reduced to silence, and
who, on the other hand, have been historically made faceless, deprived of
their human face – deprived, that is, not only of a language and a voice but
even of the mute expression always present in a living human face.39

In Felman’s reading, the expressionless seems to be for the most part another
way of accounting for the disempowerment of the traumatised victim. The expres-
sionless is a human figure that has been denied his humanity because he is victim-
ised into silence, and consequently the victim also loses his ability to express his
humanity. Such a humanistic reading of Benjamin is problematic on a number of
accounts, but especially because it makes such a concrete reading of the
Hölderlinian caesura that is at the heart of Benjamin’s theory.40 Hölderlin anno-
tated his two translations of Sophocles with notes where he discusses how in both
tragedies Tiresias’s intervention acts as a caesura that interrupts the ‘calculable
law’ of the tragic structure:

At such a moment, the man forgets himself and the god and turns around
like a traitor, naturally in saintly manner, – At the utmost form of suffering,
namely there exists nothing but the conditions of time or space.41
284 Law and art: justice, ethics and aesthetics

Claudia Wegener hears in Hölderlin’s words how the extreme limits of suffer-
ing drawn by the caesura form the enclosure and limiting interiority of the agon,
and this is where Levinas steps in once again:

This interiority at the outer limit – agonia, agony, the struggle unto death – is
also an opening to and an approaching of the other, and thus, perhaps, an
opening to some kind of communion.42

In the famous passage on the expressionless in his essay on Goethe’s novel

Elective Affinities, Benjamin begins by noting that while creation produces a world
from nothingness, art always emerges from chaos. Art will never be able to com-
pletely escape its chaotic origins because it cannot make anything out of it. Instead
art enchants chaos into the world, but only for a fleeting moment. For if the cha-
otic became truly alive, it would soon transform everything into mere semblance.
For Benjamin, it is the expressionless in true art that interrupts the movement of
beauty and harmony that would otherwise run the risk of turning art into mere
semblance and petrifying it into a single moment:

The expressionless is the critical violence which, while unable to separate

semblance from essence in art, prevents them from mingling. It possesses
this power as a moral dictum. In the expressionless, the sublime violence of
the true appears as that which determines the language of the real world
according to the laws of the moral world. For it shatters whatever still survives
the legacy of chaos in all beautiful semblance: the false, errant totality – the
absolute totality. Only the expressionless completes the work, by shattering
it into a thing of shards, into a fragment of the true world, into the torso of
a symbol.43

Just as the caesura, Benjamin’s expressionless is the breach or interruptive

silence that enables a work of art to reveal its innermost essence. In Goethe’s
novel, the caesura is represented by Ottilie, a beautiful and silent woman, whose
qualities are then restated in Benjamin’s interpretation of the artwork’s – in
this case the novel’s – expressionless and silent beauty. In the silence of the
caesura ‘. . . along with harmony and with it every expression comes to a standstill,
in order to give free reign to an expressionless power inside all artistic media’.44
In Grünewald’s Crucifixion, the expressionless is the brutal experience of suffer-
ing that cannot be narrated. Not because a silenced Christ nailed to the cross has
been denied the ability or possibility to express his torment as Felman’s reading
might suggest, but because even after every detail of the painting, after every ele-
ment of attribute, composition and colour has been accurately depicted and
accounted for, a residue remains, an ethical truth that cannot be appropriated but
that nevertheless calls for a response. In much a similar way, a residue will always
remain after the law has attempted to bring meaning to the atrocities committed
through its causal narratives. The suffering of the individual will, in the end,
 Law, ethics, and the imagery of suffering 285

remain expressionless, meaningless, and ‘for nothing’. As such, its appeal calling
for my response is much louder than anything the trial will invoke through its
choreographed proceedings.
Grünewald’s suffering Christ is not deprived of his humanity. On the contrary,
he is radically human. His radical humanity interrupts the totality of the Christian
myth; it questions me and summons me in its appeal, putting me into question.
The Other’s expressionless suffering resists my attempts to conceive of my exist-
ence within a totalising whole because it refuses to drain its meaning into my
efforts to assimilate it into my world. The Other calls to me: ‘My suffering is
always more than you can imagine.’ And by doing so, the Other reaffirms the
majesty and highness that will always be her position in relation to me.

List of art discussed

Bacon, F. Three Studies for Figures at the Base of a Crucifixion (1944). Oil and pastel on
hardboard. Three panels, 94 × 74 cm each. Tate Modern, London.
Bacon, F. Three Studies for a Crucifixion (1962). Oil with sand on canvas. Three
panels, 198 × 145 cm each. Solomon R. Guggenheim Museum, New York.
Bacon, F. Crucifixion (1965). Oil on canvas. Three panels, 197 × 147 cm each.
Staatsgalerie Moderner Kunst, Munich.
Bacon, F. Second Version of Triptych 1944 (1988). Oil and acrylic on canvas. Three
panels, 198 × 147 cm each. Tate Modern, London.
Dix, O. War Triptych (1929–1932). Tempera on wood, central panel 204 × 204
cm, side panels 204 x 102 cm each. Gemäldegalerie Neue Meister, Dresden.
Grünewald, M. Crucifixion, central section of the Isenheim Altarpiece with closed
wings (1512–1515). Oil on panel, 269 × 307 cm. Musée d’Unterlinden, Colmar.
Picasso, P. Crucifixion (1930). Oil on wood, 51 × 66 cm. Musée national Picasso,
Paris.
Picasso, P. Crucifixion after Grünewald (1932). Eight inkwashes and ink drawings,
34 × 51 cm each. Musée national Picasso, Paris.
Picasso, P. Guernica (1937). Oil on canvas, 349 × 776 cm. Museo Nacional
Centro de Arte Reina Sofía, Madrid.
Signorelli, L. The Crucifixion with St Mary Magdalene (c. 1495–1500). Oil on canvas,
247 × 165 cm. Galleria degli Uffizi, Florence.

Notes
1 This is an abridged and slightly revised version of an article previously published as
‘The Expressionless: Law, Ethics, and the Imagery of Suffering’, Law and Critique,
Vol. 19, 2008, No. 1, 65–85.
2 E. Levinas, ‘Useless Suffering’, in E. Levinas, Entre nous. Thinking-of-the-Other, M.B. Smith
and B. Harshav (trans.), London: Continuum, 1998, pp. 78–87, at p. 78–79.
3 Ibid., p. 80.
4 Ibid., p. 81.
5 See, e.g., M. Diamantides, The Ethics of Suffering: Modern Law, Philosophy, and Medicine,
Aldershot: Ashgate, 2000.
286 Law and art: justice, ethics and aesthetics

6 For an excellent collection of relevant essays (some, perhaps, more ‘romantic’ than
others), see E. Christodoulidis and S. Veitch (eds.), Lethe’s Law. Justice, Law and Ethics in
Reconciliation, Oxford: Hart Publishing, 2001.
7 P. Minkkinen, ‘Ressentiment as Suffering: On Transitional Justice and the Impossibility
of Forgiveness’, Law and Literature, Vol. 19, 2007, No. 3, 513–31.
8 On passion art in general, see J.H. Marrow, Passion Iconography in Northern European Art
of the Late Middle Ages and Early Renaissance. A Study of the Transformation of Sacred Metaphor
into Descriptive Narrative, Kortrijk: Van Ghemmert, 1979; on Levinas and passion art, see
M. Slaughter, ‘Levinas, Mercy and the Middle Ages’, in M. Diamantides (ed.), Levinas,
Law, Politics, Abingdon: Routledge-Cavendish, 2007, pp. 49–69, at pp. 60–3.
9 On the Isenheim Altarpiece in general, see, e.g., G. Richter, The Isenheim Altar: Suffering
and Salvation in the Art of Grünewald, D. Maclean (trans.), Edinburgh: Floris, 1998.
10 On the hospital-context of the altarpiece, see A. Hayum, ‘The Meaning and Function
of the Isenheim Altarpiece: The Hospital Context Revisited’, The Art Bulletin, Vol. 59,
1977, No. 4, 501–17.
11 On the Franco-Germanic history of the altarpiece, see A. Stieglitz, ‘The Reproduction
of Agony: Toward a Reception-History of Grünewald’s Isenheim Altar after the First
World War’, Oxford Art Journal, Vol. 12, 1989, No. 2, 87–103.
12 Sandrart speaks of ‘Matthäus Grünewald, also known as Matthäus of Aschaffenburg’,
see J.v. Sandrart, Teutsche Academie der Bau-, Bild- und Mahlerey-Künste. Band 2, Nördlingen:
Alfons Uhl, 1994, pp. 236–7.
13 An often-cited historical authority on Gothart Nithart is H. Feuerstein, Matthias
Grünewald, Bonn: Buchgemeinde, 1930. Moxey presents a fascinating account of how
both Dürer and Grünewald have been used in the construction of a nationalist German
identity – K. Moxey, ‘Impossible Distance: Past and Present in the Study of Dürer and
Grünewald’, The Art Bulletin, Vol. 86, 2004, No. 4, 750–63.
14 On the Northern Renaissance in general, see J. Snyder, Northern Renaissance Art: Painting,
Sculpture, the Graphic Arts from 1350 to 1575, New York: Harry N. Abrams, 1985.
15 A well-known 20th-century painting that makes direct reference to the Isenheim
Altarpiece is Otto Dix’s War Triptych.
16 See R. Kaufmann, ‘Picasso’s Crucifixion of 1930’, The Burlington Magazine, Vol. 111,
1969, No. 798, 553–61.
17 See, L. Ullmann, Picasso und der Krieg, Bielefeld: Karl Kerber, 1993, pp. 44–7.
18 On the much-debated political context of the painting, see W. Hofmann, ‘Picasso’s
“Guernica” in its Historical Context’, Artibus et Historiae, Vol. 4, 1983, No. 7, 141–69.
19 D. Apostolos-Cappadonna, ‘The Essence of Agony: Grünewald’s Influence on Picasso’,
Artibus et Historiae, Vol. 13, 1992, No. 26, 31–47, at p. 44.
20 F. Calvo Serraller and C. Giménez (eds.), Spanish Painting from El Greco to Picasso: Time,
Truth and History, New York: Solomon R. Guggenheim Museum, 2006, pp. 386–91.
21 When questioned about the influence of German and Dutch Renaissance painters,
Bacon replies: ‘They mean nothing to me.’ – F. Bacon, Entretiens avec Michel Archimbaud,
Paris: Gallimard, 1996, p. 37. On the other hand, Wieland Schmied explicitly lists
Grünewald as an immediate influence, but perhaps as a descendant of the ‘primitives’
celebrated by André Breton and others rather than as a representative of the Northern
Renaissance, W. Schmied, Francis Bacon: Commitment and Conflict, Munich: Prestel 1996,
p. 73.
22 J. Russell, Francis Bacon, London: Thames & Hudson, 1971, p. 10.
23 In 1988 Bacon painted a fourth crucifixion triptych that, however, is inconsequential
for the discussion here.
24 Russell, op. cit., p. 113.
25 Bacon identified these spectators as kin to the Oresteian Eumenides – D. Sylvester,
Interviews with Francis Bacon, enlarged edition, New York: Thames & Hudson, 2004,
pp. 44–6.
 Law, ethics, and the imagery of suffering 287

26 Ibid., p. 44.
27 An armature is a standing supportive framework often made of wire around which
wax or clay is then sculpted.
28 D. Anzieu and M. Monjauze, Francis Bacon, ou le portrait de l’homme désespécé, Paris:
Seuil/Archimbaud, 2004, pp. 60–1.
29 G. Deleuze, Francis Bacon: The Logic of Sensation, D.W. Smith (trans.), London: Continuum,
2004, pp. 2–3.
30 Schmied, op. cit., p. 76.
31 Russell, op. cit., pp. 88–90; see also A. Daki, ‘Leiris/Bacon, une amitié à l’oeuvre’, Revue
de littérature comparée, 2003, No. 306, 169–81; Bacon, op. cit., pp. 110–3.
32 M. Leiris, ‘The Bullfight as Mirror’, October, Vol. 4, 1993, No. 63, 21–40, at p. 26.
33 M. Leiris, Francis Bacon, face et profil, Paris: Albin Michel, 2004, pp. 48–9.
34 Ibid., p. 130. The original English edition of this text has long been out of print but
has recently been reissued as part of an exhibition catalogue – M. Leiris, Francis Bacon,
J. Weightman (trans.), Barcelona: Ediciones Polígrafa, 2008.
35 See e.g. K. Barth, The Word of God and the Word of Man, D. Horton (trans.), New York:
Harper Torchbacks, 1957, pp. 65 and 76.
36 M. Buber, ‘The Altar’ and J.-L. Nancy, ‘Chromatic Atheology’, Journal of Visual Culture,
Vol. 4, 2005, No. 1, 116–28.
37 G. Scholem, Walter Benjamin: The Story of a Friendship, H. Zohn (trans.), New York, NY:
NYRB Classics, 2003, p. 47.
38 W. Benjamin, ‘Socrates’, in W. Benjamin, Selected Writings. Volume 1: 1913–1926,
T. Levin et al (trans.), Cambridge, MA: Harvard University Press, 1996, pp. 52–4, at
pp. 52–3.
39 S. Felman, The Juridical Unconscious. Trials and Traumas in the Twentieth Century, Cambridge,
MA: Harvard University Press, 2002, p. 13.
40 Ibid., pp. 163–4.
41 F. Hölderlin, ‘Remarks on “Oedipus”’, in F. Hölderlin, Essays and Letters on Theory,
T. Pfau (trans.), Albany: SUNY Press, 1988, pp. 101–8, at p. 108; see also F. Hölderlin,
‘Remarks on “Antigone”’, in F. Hölderlin, Essays and Letters on Theory, T. Pfau (trans.),
Albany: SUNY Press, 1988, pp. 109–16. Philippe Lacoue-Labarthe has provided
an influential contemporary reading of Hölderlin’s caesura situating it within the
political context of modernity – P. Lacoue-Labarthe, ‘The Caesura of the Speculative’,
in P. Lacoue-Labarthe, Typography. Mimesis, Philosophy, Politics, new edition, C. Fynsk
et al (trans.), Cambridge, MA: Harvard University Press, 1989, pp 208–35; P. Lacoue-
Labarthe, Heidegger, Art, and Politics: The Fiction of the Political, C. Turner (trans.), Oxford:
Basil Blackwell, 1990, pp. 41–52.
42 C. Wegener, ‘A Music of Translation’, MLN, Vol. 115, 2000, No. 5 (Comparative
Literature Issue), 1052–84, at p. 1066.
43 W. Benjamin, ‘Goethe’s Elected Affinities’, in W. Benjamin, Selected Writings. Volume 1:
1913–1926, T. Levin et al (trans.), Cambridge, MA: Harvard University Press, 1996,
pp. 297–360, at p. 340.
44 Ibid., p. 341; on Benjamin’s Hölderlinian affinities in general, see B. Hanssen,
‘‘‘Dichtermut’’ and “Blödigkeit”: Two Poems by Hölderlin Interpreted by Walter
Benjamin’, MLN, Vol. 112, 1997, No. 5 (Comparative Literature Issue), 786–816.
Chapter 18

Governor Arthur’s
Proclamation
Images of the rule of law 1
Desmond Manderson

Introduction
Since 2001 we have heard a lot about the rule of law. It has become canonized as
a ‘core Western value’, legislated into citizenship procedures, our front-line
defence in the ‘war on terror’.2 In the course of the present chapter I wish to
develop a new way of understanding its meaning and its perils which has not,
I think, been adequately articulated or reckoned with. To develop this argument
I want to call in aid two distinct perspectives. The first is historical. In order to try
to understand the way in which ideas about the rule of law work, I return to a
powerful, yet perhaps unfamiliar, statement of rule of law values from British colo-
nial Van Diemen’s Land in the first part of the nineteenth century, and contrast it
with a notorious abandonment of those values at the same time and in the same
place. I refer to the genocide of the Tasmanian aboriginal people. The historical
comparison will help us see just how it is that colonial and post-colonial govern-
ments continue to hold simultaneously in their heads these two contradictory
realities – the rule of law on the one hand, and the treatment of Indigenous people
on the other – without, apparently, exploding at the irony of it.3 The second,
related to the first, is methodological: in trying to comprehend what it means to
talk about the rule of law in relation to colonized peoples, this chapter focuses not
on essays in political theory or pieces of legislation, but on two art-works from that
history. In particular, one of the earliest and most celebrated proclamations of the
‘rule of law’ in all of Britain’s imperial history is to be found in a series of drawings
that had the colonial government’s relationships with Aboriginal people very
much in mind. These images afford a remarkably complex, revealing, and rele-
vant representation of the rule of law. Neither should they be understood as merely
illustrative of the law, if such a distinction can be maintained. Art and law are here
entwined and inseparable.
The fact that the most significant articulation of the rule of law in Australian
colonial history was produced for aboriginal people and in the medium of a pic-
ture tells us something. In the first place, it tells us that the ‘rule of law’ is not
merely a legal term. It is a social fact, and our sources must extend beyond the arid
pages of textbooks into the social world, art, literature, children’s books, movies,
 Governor Arthur’s Proclamation: images of the rule of law 289

and newspapers. Secondly, the genre of a work of art offers distinct and important
perspectives to our legal analysis. By and large, one has to take my word for what
Dicey or Dworkin says. But any reader can now see what Frankland drew, and
draw (so to speak) their own conclusions. The reciprocity between writer and
reader adds to the richness and power of the conversation that ensues. Thirdly,
images have a particular role to play as we learn more about how communities
understand law and justice. Images have a density to them, a complexity in their
depiction of the relationship of ideas and forces. The non-linear aspect of images
makes them a particularly appropriate means of communicating paradoxes,
ambiguous, or double-edged ideas. Writing, particularly academic or legal
writing, values and perhaps even demands the communication of a single well-
organized perspective. Art is more multiple than that.4 In short the artist, perhaps
despite himself, reveals the ambiguity of the British rule of law. Indeed the image’s
honesty, its capacity to say to us more even than it intended to say, is part of
what makes it such a genuinely revelatory and gravely underappreciated source
of law.

An Australian icon
The ‘rule of law’ is a phrase that encompasses a body of principles that endeavour
to prevent, through law, the arbitrary or tyrannical exercise of State power and to
enhance society’s faith in government. One thinks immediately of Aristotle:
‘A government of laws and not of men.’5 But in attempting to put some flesh on
this idea, to work out what kind of law-making is impermissible in a government
committed to legality, there is an enormous diversity of opinion. This is not the
place to spend too much time on the question which I have explored at greater
length elsewhere.6 Suffice it to say that scholars are divided between those who
adhere to a more or less formal conception of the rule of law, and those for whom
it must include protections of substantive equality of treatment too.7 The question
at the heart of the rule of law, then, is whether it embodies merely the separation
of powers and judicial oversight of the interpretation and application of legislation,
or whether it goes further in setting down how citizens may be treated by their
government. In particular it seems to me, following Stewart and others, that the
‘rule of law’ is based on the idea of a ‘reciprocity’ between government and citi-
zens and between citizens and citizens8 without which the bond of respect for the
legal order, which the legal system and the community rely upon, is broken. It is
not intrinsic to that reciprocity that everyone should be treated in a strictly ‘equal’
fashion (after all, prisoners are deprived of their liberty, and licensing laws give
special privileges and obligations). But it is intrinsic to the rule of law that we do
not deprive people of entitlements or liberties on some collective or group basis, in
ways that do not relate to their individual actions or choices. To do so is to relegate
some group or another to the status of second-class citizens and that, surely,
destroys any bond of reciprocity with them. A law that singled out Jews – or
290 Law and art: justice, ethics and aesthetics

Palestinians for that matter – and deprived them, by that mere fact, of the rights
or liberties to which others are entitled would be a scandal to the rule of law.
If we want to better understand what it means to talk about the ‘rule of law’
we need to be more specific about culture and context. And it is often in a legal

Figure 18.1
 Governor Arthur’s Proclamation: images of the rule of law 291

system’s treatment of minority or underprivileged groups that the rule of law is

challenged and developed. With that in mind, I turn to the specific context of
British colonial history, and to one of the earliest and most remarkable articula-
tions of the rule of law in Australia. And this articulation is not in words but in
images. What is often called Governor Davey’s Proclamation to the Aborigines 1816 9 is an
iconic document in Australian history (see Figure 18.1). A full fifty years before
A.V. Dicey,10 it represents an idea of the rule of law occasioned by the clash
between colonial and Indigenous peoples. Confronted by the clash of two radi-
cally different cultures and mutually incomprehensible languages, it does so with-
out using words at all: a picture which is also a law.
The Proclamation is a national treasure. First circulated in Van Diemen’s Land – a
large island off the coast of Australia, a notorious convict settlement that later
became Tasmania – in the early 1800s, it was largely forgotten until it turned up
during renovations of Old Government House in Hobart. It formed part of the
Tasmanian display at the Melbourne Inter-colonial and the Paris Universal
Exhibitions in the 1860s,11 a declaration of the benevolent virtues of the imperial
civilizing process.12 Yet for all its fame, few have bothered to really analyze the
Proclamation. Descriptions of it mostly cast it as an explanation of martial law or
as a warning to the Aborigines of the consequences ‘of continuing in their present
murderous and predatory habits’.13 Lyndall Ryan’s pioneering The Aboriginal
Tasmanians erroneously interprets it as endorsing ‘the separate and harmonious
living of two cultures’14 whereas it clearly represents the coming together and
indeed conformity of those cultures under British rule. The Proclamation is a
myth – an object so familiar that it has ceased to be seen.
Images are treacherous; labels more so. As it happens Governor Davey’s Proclamation
to the Aborigines 1816 had nothing to do with Governor Davey. It does not date
from 1816. And it is not really a Proclamation. So far so good. It was commis-
sioned by Lieutenant-Governor Sir George Arthur in 1830: somewhere around
100 copies were published by the government printer in Hobart, placed on wooden
boards, and distributed. The misattribution dates from its re-discovery in the
1860s and might be explained in two ways. First, by setting the date back a gen-
eration, the notion that the British colony was founded on the principle of the rule
of law is thereby promoted. Law always needs some fabulous retrospectivity to
shore up its legitimacy – a penal colony established by dispossession and main-
tained by violence over whites and blacks alike, especially. The violence and chaos
that marks the birth of any new legal order thus becomes bedecked in a myth that
emphasizes instead its inevitability, its order, and its naturalness. By the 1860s it
surely served the interests of Tasmania’s free settlers to inject the ‘rule of law’ into
their narrative of legitimate settlement, as early as possible.
Secondly, Thomas Davey cuts a more attractive figure as author of the
Proclamation than Sir George Arthur. As Governor, Davey had protested in 1814
his ‘utter indignation and abhorrence’15 about the kidnapping of Aboriginal chil-
dren. Here then is a promising candidate for the vacant post of Tasmania’s
Founding Father. But Governor Arthur was an altogether more paradoxical
292 Law and art: justice, ethics and aesthetics

figure, a man who oscillated wildly between expressions of concern for the
Aborigines and military campaigns against them; between inciting white settlers
to kill them and expressing outrage when they did. He was a man whose policy
showed a peculiar instinct for extreme action accompanied by irregular and
remorseful reflection.16 Above all, as the man behind the notorious Black Line, the
dragnet which attempted to corral like cattle the Aboriginal population of the
whole island, his tenure symbolizes a way of thinking about the original Tasmanians
that ‘would be laughable were it not so criminally tragic’.17 Such a background
surely taints and complicates the promise of the rule of law. It would be no
surprise, then, if those who resuscitated his Proclamation fifty years later found it
simpler to give it a more ennobling historical context.
The pictogram was suggested and apparently drawn by Arthur’s Surveyor-
General George Frankland and he in turn was inspired by Aboriginal bark
paintings. In 1829, Frankland wrote to Arthur:

I have lately had an opportunity of ascertaining that the Aboriginal natives of

Van Diemen’s Land are in the habit of representing events by drawings on
the bark of trees . . . In the absence of all successful communication with these
unfortunate people, with whose language we are totally unacquainted, it has
occurred to me that it might be possible through the medium of this newly
discovered facility, to impart to them to a certain extent, the real wishes of the
government towards them, and I have accordingly sketched a series of groups
of figures, in which I have endeavoured to represent in a manner as simple
and as well adapted to their supposed ideas as possible, the actual state of
things . . .18

Frankland’s drawings were produced and published by the government in

March the following year. Although we have a record of a formal presentation to
‘Nunarrow’, a captive Aboriginal leader,19 it remains unclear how else the bark
paintings were circulated, or who decided the trees on which they were to be
affixed in a colony over half the size of England.
The four panels of the pictogram (Frames A–D) trace a development, but not
an historical one. Instead, the pictures trace a movement from philosophy to pol-
itics to law. Frame A represents an abstract equality: men and children are friends
regardless of colour, and a white woman nurses a black baby as readily as a black
woman nurses a white one. The image is not a statement of what the rule of law
requires, nor a statement of what the rule of law will achieve, but instead a declara-
tion of the underlying principle on which the rule of law is built. Two related
features of what we might call this ‘state of nature’, whose idealism and peaceful-
ness clearly owes more to Rousseau than to Hobbes, stand out. The first is its
individualism: humans are presented here not as belonging to societies or cultures
with unique features to be recognized or preserved. The equality that matters is
individual and pre-social, not collective and cultural. Secondly, this individualism
does not lead to a world in which everybody is different from each other but in
 Governor Arthur’s Proclamation: images of the rule of law 293

which everybody is the same. The men have identical dogs. White and black wear
identical clothes (paradoxically, European clothes are represented as ‘natural’,
perhaps because the alternative would have required Frankland to draw his white
figures as naked as his black). Thus the principles upon which the rule of law will
be based are established – equality, individual identity,20 and sameness. By pre-
senting these principles of justice as a priori, Frame A naturalizes their truth and
their applicability to all societies.
In Frame B we enter the world of politics and of history. The Aborigines lose
their clothes but gain a community. White and black are no longer depicted as the
same; instead, they are representatives of different societies, hands outstretched
towards an agreement. But this is clearly not an agreement between equals. Frame
B depicts, as it whitewashes, the transfer of sovereignty from native to colonial
rulers. A new political authority and hierarchy is acknowledged, reflected in the
movement from left to right of the picture – from Aboriginal to British society,
from naked to clothed, from subservient to dominant. Now neither Frankland nor
Arthur were naïve. They did not believe for a moment that this transfer was as
peaceful as Frame B suggests. Not only were they faced with the daily conse-
quences of the guerilla war being waged by Aborigines, but as Arthur remarked,
‘I cannot divest myself of the consideration that all aggression originated with the
white inhabitants . . .’21 But Frame B not only portrays the fait accompli of British
sovereignty – it justifies it by looking both forward and back. Forward, to the day
when the Tasmanian Aborigines might indeed consent to the reality of that rule;
back, to the principles in Frame A through which they are given a reason – an
obligation, even – to consent to that rule. It is the second part of a syllogism: because
A, then B. Because of the universal promise of the rule of law (Frame A), you should
accept as legitimate the government that is committed to uphold it (Frame B).
Frames C and D now expand the syllogism by pursuing the legal consequences
of the logic. This is not philosophy in the subjunctive or history in the futur anterieur22
but law in the present tense. Abstract principles are brought into the real world,
where violent justice is meted out to violent crime. The last two pictures declare a
substantive legal rule – the prohibition against murder. But more importantly, they
relate that prohibition to basic principles of justice, and to the legitimate role of the
government in enforcing them. There is an implied threat in Frame C, but it is
clearly balanced by the implied guarantee of Frame D, and by the insistence that
in each case the British redcoat stands quite apart from the actors, and neutrally
enforces the law. Governor Arthur had said as much in his very first Proclamation
as Governor, some years previously: ‘The Natives of this island being under the
protection of the same laws which protect the settlers, every violation of those laws
in the persons or property of the Natives shall be visited with the same punishment
as though committed on the person or property of any settler.’23
But the pictorial Proclamation goes further than a mere statement of judicial
neutrality in its articulation of justice to Aboriginal peoples. Of prior importance
were the principles of equality, individualism, and sameness. Governor Arthur’s
Proclamation presents a more complex and substantive reading of the rule of law
294 Law and art: justice, ethics and aesthetics

than one might have expected. It builds the legitimacy of law on a promise to treat
all persons, black or white, with equal respect for their individuality and an
assumption of their fundamental sameness – not only that the people of Australia
would all be subject to the law, but to the same laws.

Governor Arthur and the deferral of the

rule of law
The paradox in which this drawing is caught lies in the difficulty of squaring ‘the
real wishes of the government’, as the Proclamation depicts it, with the ‘the actual
state of things’ in Van Diemen’s Land. At the very same time that Governor
Arthur’s Proclamation elaborated an expansive commitment to the rule of law, he
was extending martial law throughout Tasmania. Martial law had initially been
declared in 1828 in the face of Aboriginal resistance to colonial settlement.24 In
February 1830 a reward of five pounds was proclaimed for the capture of adult
Aborigines (two pounds for a child), describing them as ‘a horde of savages’ con-
sumed by ‘revengeful feelings’.25 Faced by ‘continued repetitions of the most
wanton and sanguinary acts of violence and outrage’, Arthur extended martial
law ‘against the Black or Aboriginal Natives within every part of this Island’ in
October 1830.26 Then on 7 October ‘the community . . . en masse’ was to spread
out like a human chain across the whole island, and by marching forward to herd
them on to Tasman’s Peninsula where they could be penned in once and for
all.27
The Black Line, a dismal and notorious folly, led to the capture of a grand total
of two Aborigines and the shooting of two more, but it marked the high point of
Arthur’s military campaign against them.28 Martial law had always been under-
stood by scholars of the common law as the opposite of the rule of law.29 Indeed
Arthur’s strategy was through martial law to remove all Aboriginal people from the
protection of the rule of law, while actively co-opting the whole European popula-
tion ‘against’ them in ‘whatever means a severe and inevitable necessity may dic-
tate’. Thus in 1829 the brutal murder of an Aboriginal woman was deemed by the
Solicitor General to be beyond the reach of the common law precisely because it
fell under the very broad rubric of ‘necessary operations against the enemies’.30
Subject to ‘an active and extended system of Military operations against the Natives
generally’ and until the ‘cessation of hostilities’, Aboriginal Tasmanians were outside
the rule of law.31 The last full-blood Tasmanian Aborigine died in 1876.
One might argue that Frankland’s pictogram is a trick. The rule of law is not
without its critics, and that is typically how they look at it: its noble sentiments
disguise how those with power actually enforce the law.32 So the equality which
Frames C and D depict has two problems. First, it lies. The Proclamation’s promise
of equal treatment is untrue: white attacks on black people were virtually unpunish-
able, whereas black attacks on white settlers were branded as the emanations of
‘a wanton and savage spirit’.33 Secondly, it evades. The abstract thinking involved
in treating Aboriginal murder ‘the same as’ that of a white settler, ignores the
 Governor Arthur’s Proclamation: images of the rule of law 295

difference in meaning and context of their actions. Even if the British government
had been neutral as between the two deaths drawn by Frankland (which clearly it
was not), the rule of law would sustain settler society and destroy Aboriginal soci-
ety precisely by treating them ‘the same’ in some abstract sense. The claim in
Frame A that whites and blacks are ‘the same’, for example, and that each can just
as easily nurse the other’s baby, ignores the underlying social and economic real-
ity, which makes nonsense of the equivalence. A black woman nursing a white
baby is a servant in a rich man’s house; a white woman nursing a black baby is
probably a missionary who has taken the child from his mother. Equal treatment
perpetuates inequality every time it purposely turns a blind eye to social and mate-
rial difference. By ignoring the complexities of context, and by lying about actual
legal practices that were going on at the time, ‘rule of law’ rhetoric systematically
varnishes the injustices perpetrated by colonial power.
Powerful as these critiques are they fail to take the beliefs of the participants,
and particularly the ideology of the rule of law, seriously enough. It seems clear
that Frankland, ‘innocent but misguided’,34 believed in the Proclamation. Arthur
himself consistently sought to justify the violence he unleashed in compassionate
terms. There is this strange doubleness in his gestures, which always seem to sway
in confusion between the violent actions he sets in motion, and the desire to pro-
tect the Aborigines from those same forces. He insisted that ‘the Government puts
forward its strength on this occasion by no means whatever with a view of seeking
the destruction of the Aborigines . . .’35 Even the Proclamation which instituted
the Black Line, concludes that:

. . . the Lieutenant Governor takes this opportunity of again enjoining the

whole community to bear in mind, that the object in view is not to injure or
destroy the unhappy Savages, against whom these movements will be directed,
but to capture and raise them in the scale of civilization by placing them
under the immediate control of a competent establishment, from whence
they will not have it in their power to escape and molest the White Inhabitants
of the Colony, and where they themselves will no longer be subject to the
miseries of perpetual warfare, or to the privations which the extension of the
Settlements would progressively entail upon them, were they to remain in
their present unhappy state.36

Here, the ‘savages’ of Tasmania are not cast, as they admittedly are from time
to time, as ‘vengeful’, mischievous and cruel.37 Rather they are portrayed as
unhappy and miserable. The place on Flinders Island in which the last of the
Tasmanian Aborigines were finally corralled and on which they died, was called
Point Civilization. Their capture and control was seen as the necessary first step in
raising them to a civilized state, an educative if coercive process that would also,
presumably, serve to quench that savage spirit in them.
If Frame A of the pictogram presents Rousseau’s vision of the state of
nature, Governor Arthur’s policy is bleaker and owes more to Thomas Hobbes.
296 Law and art: justice, ethics and aesthetics

Hobbes had argued in the seventeenth century that without an all-powerful gov-
ernment to control our baser instincts, there would be nothing but warfare and
misery, ‘and which is worst of all, continual fear, and danger of violent death; and
the life of man, solitary, poor, nasty, brutish, and short’.38 Arthur’s government
embodies what Hobbes famously termed the Leviathan: a monster, a tyrant who is
nevertheless necessary and whose violence and absolute power saves us – and more
particularly in this case the Aboriginal people – from the ‘warfare’ and ‘privations’
of this hideous natural condition.
Accordingly the pictorial Proclamation does not simply lie or conceal. It is
meant seriously, but it is written in the future tense. In effect Governor Arthur was
saying to the first Tasmanians: ‘We do believe in your potential for equality and
sameness. We look forward to that moment when you will consent peaceably to
our governance. And we will then treat you as subject to the same laws and pro-
tections as the rest of us. But until the conditions of sameness and equality are
attained, all bets are off.’ Not ‘because A, then B, therefore C & D’ but ‘when
A and B, then C & D’. Governor Arthur’s Proclamation paradoxically justifies the
un-depicted violence of the Black Wars, just as the Leviathan is justified, by the
promise of the just legal order that can only then ensue.
Some contemporary writers on the rule of law have made a broadly similar
point, and it is significantly different from the criticisms we have noted above.
They have resuscitated Hobbes, Schmitt, and others, arguing that the liberal
promise of a society entirely governed by the constraints and protections of the
rule of law suffers from a fatal flaw. In Homo Sacer and State of Exception,39 Giorgio
Agamben argues that increasingly in modern society the very plenitude of the rule
of law gives rise to these pockets of non-law, established by the ruler’s power – a
power that is not necessarily written down but inheres in the nature of sovereignty
to inaugurate or to suspend the legal order.
It is surely unarguable that in recent years we have seen not the disappearance
but the normalization of the state of exception: in the treatment of refugees or
stateless persons and in the creation of juristic black holes such as Guantanamo
Bay, wherein the United States President has precisely claimed the executive priv-
ilege to determine where national and international law does and does not oper-
ate.40 The ‘war on terror’ is the most obvious example of a ‘state of exception’ that
has been justified precisely as a way of protecting the same ideals that are simulta-
neously scorned as ‘quaint’ or ‘outmoded’.41 Other examples abound; from
Malaya to Pakistan, the language of ‘national emergency’ has been used to sus-
pend legal principles. As recently as 2007, Australia’s international commitments
concerning racial discrimination were specifically excluded from laws that pro-
foundly changed the treatment of Aboriginal Australians in the Northern
Territory.42 This legislation was directly justified in terms of a so-called ‘national
emergency’ within those communities.43 In each case, governments have excised
persons, groups, places from the protection of the rule of law. In each case, the
creation of these black holes has been justified through the language of ‘excep-
tion’, ‘exclusion’, ‘crisis’, ‘martial law’, or ‘national emergency’. In each case, the
 Governor Arthur’s Proclamation: images of the rule of law 297

values we stand for no longer apply, are suspended or deferred – but at the same
time and with equal force we are told that we need these exceptions, these pockets,
if the rule of law is to emerge or to survive.
The great historian of nineteenth-century England, E.P. Thompson, famously
described the rule of law as ‘an unqualified human good’.44 He acknowledged the
criticisms of its partiality and hypocrisy but insisted that the rule of law had a
capacity to go beyond the limited contexts in which the ruling class deploys it,
operating instead as an ideal with the power to hold those rulers to account. That
remains true. Nevertheless, Thompson fails, I think, to reflect adequately on how
the ideal of the rule of law itself might be used not merely to conceal oppression
but actively to incite it, either against those that do not live up to its criteria, or in
the context of events that are imagined to require its suspension.
Governor Arthur’s Proclamation sharply delineates just that paradox: the annihila-
tion of the rule of law is not subsidiary to its glorification but brought about by it.
It is not that Aboriginal people did not ‘deserve’ the rule of law. On the contrary.
Rather, their ‘savage spirit’ required its suspension in order that the Leviathan of
the British Empire might first – literally and figuratively – bring them to Point
Civilization, might first bring about that Frame A of equality and sameness in
which the rule of law would, at last, apply. The very belief in the rule of law high-
lighted the apparent inadequacy of the Tasmanian Aborigines to benefit from it
and this in turn justified any and all measures to impose legal and social order on
them. The more beautiful the ideal the more inadequate seemed the present state
of the natives. The more sincere the British commitment to our universal same-
ness, the more Aboriginal difference and resistance seemed a ‘wanton’ ‘fierceness’
to be subjugated or a ‘weakness’ to be fixed.
The images of Governor Arthur’s Proclamation, juxtaposed against the colonial gov-
ernment’s actual policy, do not reveal lies or evasions. On the contrary, they are
cause and effect. It was because Arthur and Frankland, and many like them, believed
so fervently in the rule of law that Aboriginal people were, on the one hand, always
disappointing them and, on the other, required emergency action, exceptional
measures, to drag them into civilization’s embrace. Governor Arthur’s Proclamation did
not establish the rule of law in Tasmania; it justified the state of exception. Saint
Augustine said, ‘Lord, give me chastity – but not yet.’45 Sir George Arthur said,
‘Lord, give me the rule of law – but not yet.’ The aspirations of the Proclamation
remained, but making good on them was always deferred to some indefinite future
when Aboriginal people would at last be ready for it.
Meanwhile, the rule of law proved to be just another rod with which to chastise
them for their failure to live up to our expectations. With this idea of cause and
effect in mind, we can return to Frame A of Governor Arthur’s Proclamation. We might
read it as a promise of equal rights. But we could just as easily – in fact, perhaps
more easily – read the image literally, as insisting that Aboriginal people should
not just be treated but should be the same – that they should wear the same clothes
as us, bring up their children like us, even train their dogs like us. This is of course
not a message of equality but of assimilation. It demands that what changes is not
298 Law and art: justice, ethics and aesthetics

our treatment of other races but their behaviour. Once again, it is not just that the
work of art is ambiguous, but that it means both these things and helps us see the
relationship between them. For centuries, one emergency after another, colonial
and post-colonial regimes have postponed treating Indigenous people with justice,
deciding that they are not yet worthy of it or up to it. In 2011 as in 1830 this is the
dark side of the glowing promises made by the rule of law; the insidious conse-
quences of the righteousness it encourages.46

Another icon
The assimilationist undercurrent of Governor Arthur’s Proclamation, together with the
paradoxical effects of its ideals, suggest that we ought to look elsewhere to find
visions of justice in the context of the colonial and post-colonial world. The
Proclamation is not the only instance of pictorial legislation from which we might
learn. Over two centuries earlier, another invading colonial power sought to com-
municate with another Indigenous people, likewise in the absence of a shared
language and across a cultural abyss. The Two-Row Wampum records a treaty,
several versions of which are said to have organized relations between North
American settlers and the Iroquois people (themselves a federation) in colonial
times, going back as far as one made with the Dutch in New York in 1613; and
with William Penn in 1682.
As Governor Arthur’s Proclamation drew on Aboriginal bark paintings, so these
treaties drew on the Indigenous craft of wampum, in which strings of beads made
of purple and white mussel shells were woven into a thick belt, almost like a shawl,
in which oral traditions and legal agreements were recorded, recalled and sancti-
fied. The Two-Row Wampum is such a belt, a long string of such shells with two
purple stripes on a white background. Despite its aesthetic simplicity this artefact
embodies a complex cultural memory and social understanding. According to
Haudenosaunee tradition,

You say that you are our Father and I am your son. We say, we will not be
like Father and Son, but like Brothers. This wampum belt confirms our words.
These two rows will symbolize two paths or two vessels, traveling down the
same river together. One, a birch bark canoe, will be for the Indian People,
their laws, their customs and their ways. The other, a ship, will be for the
white people and their laws, their customs and their ways. We shall each
travel the river together, side by side, but each in our own boat. Neither of us
will try to steer the other’s vessel.47

So the two art-works are very different. In the seventeenth century, as we see
in the empires of North and South America, one God would act as the agent
of civilization and unification, but communities would be allowed to keep their
own laws. By the nineteenth century, as we see in the empires of Australasia, Asia,
and Africa, one Law would act as the agent of civilization and unification, but
communities would be allowed to keep their own gods. On the one hand, and
 Governor Arthur’s Proclamation: images of the rule of law 299

perhaps with the arrogance of the British empire, Governor Arthur lays claims to
a uniform ideal of justice which transcends and binds all nations. On the other
hand, and perhaps because it was drawn 200 years later, it recognizes that the
difference in power and technology between colonial master and subject peoples
cannot be ignored. A proclamation speaks vertically, from governors to the
governed. A treaty speaks horizontally, an agreement between peoples.
There are surely elements of justice in our dealings with Indigenous peoples
that the Two-Row Wampum reveals and to which the Proclamation is blind. Researchers
in Canada in particular have over the last few years become increasingly inter-
ested in it as an alternative social justice model. The wampum belt does not treat
people as isolated and identical individuals but recognizes instead that they live
their lives in ‘vessels’, communities whose difference is valuable to them and worthy
of respect, and whose trajectories may therefore not be identical. In this way,
although the wampum belt is a more abstract art form than the proclamation, it
succeeds in describing a more concrete social world. Indeed, the abstraction of the
Proclamation’s principle of sameness allows its noble idea to be converted into a
force of homogenization. Instead, the beautiful image of ‘the birch bark canoe’
and ‘the ship’ afloat on the same river invites us to think of ways in which we can
listen to and help those whose life-worlds may be very different from ours in their
journey, without simply trying ‘to steer the other’s vessel’. That, as much as ‘equal
treatment’, is also a notion of justice: justice embedded in communities whose
difference is itself a kind of collective equality worthy of respectful attention.48
There is a question here not just of practice or of principle, but of perspective.
The Iroquois offered to share the river with the invaders, to live side by side
with them and to move together with the currents that affect them both. There is
something welcoming and generous in that gesture. The shared river does not
only separate but brings together, too. The language of brotherhood, like the par-
allel lines of the belt itself, suggests closeness no less than difference, and above all
implies a making-room, each for the other. The Proclamation, for its part, makes no
equivalent gesture. Frame B shows a scene of welcome. But it represents the ceding
of authority from Indigenous to colonial rulers; an authority that, as Frames C
and D illustrate, is unitary and absolute. While the Two-Row Wampum starts from
the principle of Indigenous authority over the land and proceeds to make others
welcome on it, Governor Arthur’s Proclamation starts from the fact of colonial author-
ity over the land and proceeds to take exclusive control of it. Of course, the reason
for this difference is that the two images are written from different perspectives,
the wampum by the Indigenous people of the land and the proclamation by the
colonial power. That is precisely the point. While our understanding of justice and
our commitment to the rule of law only pays attention to the latter voice, it will
continue to perpetrate injustice in its name; the goal of this chapter has been to
show exactly how and why that can happen.
The aesthetic element of this analysis is surely significant. First, the ability of art
to encapsulate ideas and at the same time to expand or destabilize them is evident
from this case study. Images have always been privileged media for the articula-
tion, dissemination, and interrogation of social forms and practices, in largely
300 Law and art: justice, ethics and aesthetics

pre-literate cultures such as early modern Europe but no less in post-literate

cultures of affect and spectacle such as late modern Europe.49 Artworks offer a
significant diagnostic tool in our understanding and interrogation of legal ideas.
Second, there is a critical cultural opportunity here that has gone largely unre-
marked. Since European settlement in Australia as in other colonial societies,
Indigenous groups have been required to translate their distinct legal visions into
the ill-fitting language and structures of British law.50 Yet in many cultures, art
and literature are central elements to the performance and embodiment of law.51
Traditional thinking about law in the West has explicitly rejected such an
approach, even on occasion declaring that Aboriginal rites and dances cannot be
law if they be art.52 Such a constrained imagination has proven a genuine barrier
to the recognition of Indigenous law.53 We see some acknowledgement of the need
for a cross-cultural and aesthetic dialogue about law in the Canadian context in
particular, which has been more sensitive to the relevance of languages of art and
culture in the construction of law and politics.54 But overall these forays have been
limited and implicit. The grammar and vocabulary of images could inaugurate a
new cross-cultural conversation, and provide a new vehicle of social engagement
and discourse, on new and radically different terms.
Third, the images that have formed the spine of this case study have given
material form and aesthetic feeling to a subject which is frequently rendered
bloodless. The alienation of legal ideas from cultural form and lived experience is
an exercise in social exclusion with serious consequences. If the rule of law is to
survive, however we understand its strengths and its limitations, it will be because
of the way it speaks to a culture or cultures, and because of the feelings it is capable
of arousing. Without these cultural narratives and these affective attachments
no-one has any reason to care about it, to understand or to improve it. There is no
more moving commentary on American ideals and history in the context of the
Vietnam War than Jimmy Hendrix’s improvisation on The Star Spangled Banner at
Woodstock.55 There the orthodox narrative of US history is intertwined power-
fully with multiple and conflicting voices: love and respect, but also anger, frustra-
tion and irony. The aesthetic form allows these cross-currents and dialogues to be
realized in compressed form. Hendrix’s art gives us a connection as vibrant and as
physical as a guitar string through which these questions and associations feel like
they matter to us. The depiction of law and of justice in the arts is a critical and
desperately undervalued resource in understanding law’s cultural resonances, in
depicting and contesting its historical narratives, and in constituting its emotional
place within a society or societies. One of the major tasks of twenty-first century
research is to begin to make available and to study this forgotten common wealth
of sounds and images.

Notes
1 An earlier version of this chapter, which pays close attention to recent changes in
the legal treatment of aboriginal people in Australia appears as D. Manderson,
 Governor Arthur’s Proclamation: images of the rule of law 301

‘Not Yet: Aboriginal Peoples and the Deferral of the Rule of Law’, ARENA, 2008, vol. 54,
p. 1. Kind permission to reproduce is hereby acknowledged.
2 Commonwealth, Parliamentary Debate, House of Representatives, 30 May 2007, 5,
Kevin Andrews (Minister for Immigration and Citizenship). See also Prime Minister’s
Australia Day Address, 26 January 2006; Australian Citizenship Amendment
(Citizenship Testing) Act 2007.
3 In the Arena article referred to above, I develop an extended application of these ideas to
contemporary Indigenous policy in Australia, making the argument that radical changes
to government policy and legislation in 2007 entrenched radical and unexamined depar-
tures from rule of law principles in line with the historical argument I develop here. See
Northern Territory National Emergency Response Act 2007 (Commonwealth of Australia)
No. 129; Social Security and Other Legislation Amendment (Welfare Payment Reform)
Act 2007 (Commonwealth of Australia) No. 130; Families, Community Services and
Indigenous Affairs and Other Legislation Amendment (Northern Territory National
Emergency Response and Other Measures) Act 2007 (Commonwealth of Australia)
No. 128.
4 C. Douzinas and L. Nead (eds), Law and the Image, Chicago: University of Chicago Press,
1999.
5 I. Stewart, ‘Men of Class: Aristotle, Montesquieu and Dicey on ‘‘Separation of Powers’’
and ‘‘The Rule of Law’’’, Macquarie Law Journal, 2004, vol. 4, p. 194.
6 Manderson, op. cit.
7 B. Tamanaha, On The Rule of Law, Cambridge: Cambridge University Press, 2004.
8 C. Stewart, ‘The Rule of Law and the Tinkerbell Effect’, Macquarie Law Journal, 2004,
vol. 4, p. 35.
9 Governor Davey’s Proclamation to the Aboriginal People, 1828, oil on huron pine board, 36 ×
22.8 cm, State Library of Tasmania. Kind permission to reproduce acknowledged.
10 A.V. Dicey, An introduction to the study of law of the constitution, London: Macmillan Co.,
1889.
11 J. Kerr, Dictionary of Australian Artists, Melbourne: Oxford University Press, 1992,
p. 274.
12 P. Edmonds, ‘Imperial Objects, Truth and Fictions: Reading 19th Century Australian
Colonial Objects as Historical Sources’ in P. Edmonds and S. Furphy (eds), Rethinking
Colonial Histories: New and Alternative Approaches, Melbourne: RMIT Publishing, 2006,
p. 83.
13 The Tasmanian, 26 November 1830 in J. Kerr, op. cit.
14 L. Ryan, The Aboriginal Tasmanians, St Leonards: Allen and Unwin, 1996, p. 97.
15 H. Reynolds, Fate of a Free People, Camberwell: Penguin, 1995, p. 90.
16 Reynolds, ibid.
17 L. Robson, History of Tasmania, Melbourne: Oxford University Press, 1983, p. 225.
For historical context see also Reynolds, ibid., and L. Ryan, The Aboriginal Tasmanians,
St Leonards: Allen and Unwin, 1999.
18 Letter to Governor Arthur in Kerr, op. cit., p. 273.
19 The Tasmanian, 26 November 1830 in Kerr, op. cit., p. 273.
20 W. Kymlicka, Liberalism and Community and Culture, Oxford: Clarendon Press, 1989 and
Justice and Minority Rights, Oxford: Clarendon Press, 1995.
21 Ryan, op. cit., p. 94.
22 Jacques Derrida, ‘Declarations of Independence’ in Otobiographies, Paris: Galilee, 1984,
at pp. 13–32: the act which founds a legal system is expressed in the future antérieur.
It makes a statement whose legitimacy is bestowed upon by the reflections and author-
izations of later generations. Law is lived forward but justified backwards.
23 A Proclamation, Government House, Hobart, 23 June 1824 in Reynolds, op. cit.,
p. 91.
24 Reynolds, op. cit., p. 109.
302 Law and art: justice, ethics and aesthetics

25 Government Order No. 2, 25 February 1830 (Hobart Town Gazette, 27 February).

Available HTTP: <http://www.law.mq.edu.au/sctas/html/1830cases/Notice7,1830.
htm> (accessed 4 June 2010).
26 A Proclamation (Hobart Town Gazette, 2 October 1830). Available HTTP:
<http://www.law.mq.edu.au/sctas/html/1830cases/Notice7,1830.htm> (accessed 4
June 2010).
27 Government Order No.11, 22 September 1830 (Hobart Town Gazette, 25 September).
Available HTTP: <http://www.law.mq.edu.au/sctas/html/1830cases/Notice6,1830.
htm> (accessed 4 June 2010).
28 C. Turnbull, Black War, Melbourne: Sun Books, 1948; House of Commons, Copies of All
Correspondence . . . on the Subject of the Military Operations . . . Against the Aboriginal Inhabitants
of Van Diemen’s Land, Parliamentary Papers No. 259 (Great Britain), 1831.
29 The connections with Agamben’s articulation and study of the state of exception are
evident and need not be spelt out here: see G. Agamben, State of Exception, Chicago:
University of Chicago Press, 2005, trans. Kevin Attell. See also R. Kostal, A jurisprudence
of power, Oxford: Oxford University Press, 2006.
30 Reynolds, op. cit., p. 112.
31 A Proclamation (Hobart Town Gazette, 2 October 1830). Available HTTP: <http://
www.law.mq.edu.au/sctas/html/1830cases/Notice7,1830.htm> (accessed 4 June
2010).
32 C. Stewart, op. cit., p. 136.
33 The words come from Report of the Committee appointed by Sir George Arthur
according to which Archdeacon Broughton had been instructed to inquire into ‘the
origin of the hostility displayed by the Black Natives of this island against the settlers’.
Quoted in N. Blomley, The Aboriginal/Settler Clash in Van Diemen’s Land, Hobart: Queen
Victoria Museum, 1992, p. 9.
34 Kerr, op. cit., p. 273.
35 From a letter to the Brigade Major’s Office, 3 November 1828 in Reynolds, op. cit.,
p. 109.
36 Government Order No. 11, 22 September 1830 (Hobart Town Gazette, 25 September
1830). Available HTTP: <http://www.law.mq.edu.au/sctas/html/1830cases/
Notice6,1830.htm> (accessed 5 June 2010).
37 Findings of the Archdeacon Broughton Committee, 1830 in N. Plomley, The Aboriginal-
settler clash in Van Diemen's Land 1803–1831, Launceston, Tas: Queen Victoria Museum
& Art Gallery, 1992.
38 T. Hobbes, Leviathan (1651), Chapter 13.
39 G. Agamben, 2005, op. cit., and Homo Sacer, Palo Alto: Stanford University Press, 1998.
40 J. Dratel and K. Greenberg (eds), The Torture Papers: The Road to Abu Ghraib, New York:
Cambridge University Press, 2005.
41 The Civil and Civil Rights Record of Attorney General Nominee Alberto Gonzales, Washington
Legislative Office of the American Civil Liberties Union (Laura W. Murphy, Director),
January 2005.
42 Manderson, op. cit.
43 Northern Territory National Emergency Response Act 2007 (Cth) No. 129, see also
Joint Press Conference (Prime Minister John Howard and Minister for Indigenous
Affairs Mal Brough) 21 June 2007, available HTTP: <www.pm.gov.au/media/
Interview/2007/Interview24380.cfm> (accessed 4 June 2010) and Media Release
‘National emergency response to protect Aboriginal children in the NT’ (21 June 2007).
See Paul ‘t Hart, ‘Crisis Exploitation: Reflection on the ‘‘National Emergency’’ in
Australia’s Northern Territory’, Dialogue, 2007, vol. 26, pp. 51–58.
44 E.P. Thompson, Whigs and Hunters: The Origin of the Black Act, New York: Pantheon
Books, 1975, p. 266.
 Governor Arthur’s Proclamation: images of the rule of law 303

45 St Augustine’s Confessions (AD 397), Book 8.

46 See in particular Sherene Razack, Dark Threats and White Knights, Toronto: University of
Toronto Press, 2007.
47 See HTTP: <sixnations.org> (accessed 4 June 2010).
48 W. Kymlicka, Liberalism and Community and Culture, Oxford: Clarendon Press, 1989 and
Justice and Minority Rights, Oxford: Clarendon Press, 1995.
49 R. Sherwin, When Law Goes Pop!, Chicago: University of Chicago Press, 2000;
R. Sherwin, ‘Law in the Age of Images’, in James Elkins (ed.), Visual Literacy in Action,
London: Routledge, 2007.
50 S. Motha and C. Perrin (eds), ‘Deposing Sovereignty after Mabo’, Law and Critique,
2002, vol. 13, p. 23; P. Patton, ‘Mabo, Freedom and the politics of difference’, Australian
Journal of Political Science, 1995, vol. 30, p. 108.
51 H. Morphy, Becoming art: exploring cross-cultural categories, Oxford: Berg Publishers, 2007;
J. Burrows, Recovering Canada: The resurgence of indigenous law, Toronto: University of
Toronto Press, 2002; K. Laster, Law as Culture, Sydney: The Federation Press, 1997.
52 P. Fitzpatrick, The Mythology of Modern Law, London: Routledge, 1992, Delgamuukw
v. British Columbia, [1997] 3 S.C.R. 1010 (per McEachern J.).
53 K. Anker, ‘The Truth in Painting? Cultural Artifacts as Proof of Native Title’, Law/
Text/Culture, 2005, vol. 9, p. 91.
54 See references to the work of Bill Reid in, for example, J. Burrows, op. cit.; J. Tully,
Strange Multiplicity: Constitutionalism in an Age of Diversity, Cambridge: Cambridge University
Press, 1995.
55 Available HTTP: <http://www.youtube.com/watch?v=u_k-6FLfDkM> (accessed
4 June 2010).
Epilogue
Index
Abbas, Mahmoud 179
Abbate, Carolyn 239–40
Aboriginal peoples 288–94, 296–8;
deferral of rule of law 294–7
abstract expressionism 225
Abu Ghraib 276
abundance 217–26; as anti-copyright
218–19; as creative strategy 222–3;
as economics 220–1; from post-modern
copy to 219; as ideological strategy
223–4; as Kulturkampf 225; law as death,
abundance as life 221–2; as rhetorical
strategy 224–5
activism as art 218–19; see also abundance
adoption 127, 255–6
Adorno, T.W. 7, 232
The Aeneid (Vergil) 194–5, 198, 199
Agamben, Giorgio 3, 93, 139–40, 142,
146, 263, 269, 296
agonic is not yet demonic 114; aboutness
114–22; awe of decision 122–7;
demonic de-cision of art[ist] 127–32;
truth as un-concealedness and
dis-closure 120–22
Alciato, Andrea 260, 262, 266
Alcock v Chief Constable of South Yorkshire
Police (1992) 212–13
amulets against evil eye 252
Anand, Ram 189, 192
Anderson, Chris 222–3
Anzieu, Didier 280
Apollo and Marsyas 6–9, 13–17
Apostolos-Cappadona, Diane 278
Aquinas, Thomas 233
Arendt, Hannah 140
Ariadne, Theseus and Dionysus 54–5
Aristotle 7, 73, 81, 155, 156, 160n53, 179,
233, 289
Arkes, Hadley 237–8
Arrow, Kenneth 223
Arthur, George see Governor Arthur’s
Proclamation
Asia, South and South East 189
asylum-seekers 206–8
Auden, W.H. 205
Augustine 69, 70, 251, 297
Australia: Aboriginal peoples and rule
of law 288–300; racial discrimination
296–7
avant garde 217
Bacchae (Euripides) 177
Bacon, Francis (1561–1626) 232
Bacon, Francis (1909–1992) 279–82
Badiou: seizing truths 73–7; art,
philosophy and truth 77–82; democracy
and art 86–8; law and politics 82–6
Baker, Houston, Jr. 137–8, 140, 141
Bakhtin, Mikhail 173
Balkin, Jack 236–7
Bambach, C. 35–6
Barker, Francis 107
Barth, Karl 283
Bartolus 262
Baudrillard, Jean 46, 177
Bauman, Z. 213
Ben-Dor, Oren 34
Benjamin, Walter 88, 93, 94, 95, 96,
105, 275, 283, 284
Bible 65; Commandments 62, 64, 69, 247;
Deuteronomy (6:4–8) 64; Deuteronomy
(7:1–2) 72n40; Deuteronomy (20:16)
72n40; Genesis (8:21) 140; Genesis (9)
138, 139, 140, 142; Genesis (10) 140;
Job 68–9; John (3:30) 277 Mare Liberum
(Grotius) 193
308 Index
Billington, Michael 178
Bilson, Malcolm 238
Bismarck, Otto von 98
blindness of justice 252–3, 257–8
Bloom, Alan 97
Blount, Thomas 265, 271
Bohlman, Phillip 239
Bossewell 263
Brecht, Bertolt 79
Brevoort, Deborah 180–1
Brittain, Victoria: Guantanamo (play) 180–2
Buber, Martin 172–3, 283
Bultmann, R. 63–4, 65
Burke, Edmund 177
Bush, George W. 179–80, 182
business model: free and open source
software (FOSS) 220
Byzantine iconoclastic controversies 249
Caillois, Roger 101, 104, 106
Canada 299, 300
capitalism 82, 84, 220; contractual
imagery 257; global 76; neo-liberal 257;
unregulated free market 222, 223–6
Cashin, Paul 221
Celan, Paul 10, 12, 16, 17
Chambers, E. 233, 235
Chaucer, G. 103–4
Christianity 62, 65, 68, 70, 223, 251, 255,
256; St Augustine 69, 70, 251, 297;
Bible see separate entry; ‘chain of icons’
254; Grotius, Hugo 192; hiddenness
of the deity 265; Isenheim Altarpiece:
Crucifixion 276–9, 283, 285; legal
emblems 259, 264–5, 267, 269–70;
papal power 255; sixteenth century
legislators 256; St Thomas Aquinas
233; Trinity image 252; Virgin with
Christ image 251
Cicero, Marcus Tullius 73, 188, 232, 233,
237–8, 240
Cimabue 279
civil law 269–70
Clark, Tom 183
Cold War 96, 225, 226
colonialism 7, 189; Aboriginal peoples
and rule of law 288–300; international
law 189; Mare Liberum (The Free Sea)
(Grotius): law of hospitality 193–5, 198
commodity prices 221
common law 52, 204, 255; floodgates
argument 212; legal emblems 259–71;
negligence 210–13
compensation culture: A Frolic of His Own
(William Gaddis) 210–12
competition 222
computer software: free and open source
software (FOSS) 220
Conrad, Joseph 17
contemporary art 217, 218
contract 65, 257
copyright activism as art: art as critical
transcendent 217–18; abundance as
anti-copyright 219–20; abundance as
creative strategy 222–3; abundance
as economics 220–1; abundance as
ideological strategy 223–4; abundance
as Kulturkampf 225; abundance as
rhetorical strategy 224–5; activism as
art 218–19; capitalism just wants to be
free 225–6; from post-modern copy
to abundance 219; law as death,
abundance as life 221–2; redistribution
of wealth 223–4
corporations 256
coup d’état and Shakespeare 93–108
courts 108, 166; compensation culture:
A Frolic of His Own (William Gaddis)
208–10; concurring opinions 205;
negligence cases 210–13; precedent/
stare decisis 46, 120, 205, 239, 255
Cover, R. 204
Cranston, Ross Frederick 206–8
Creative Commons (CC) project 218, 220
Critical Legal Theory 239
Cromwell, Oliver 94, 107
crucifixion images see suffering, imagery of
curse: of Caliban 138; of Noah/Ham
135–6, 137–43, 144–5, 146
Cusset, F. 75
Dahlhaus, Carl 232
Dante Alighieri 256
Dasein 44n22, 120, 125, 126; aesthetics
of welfare 150–1, 152–3, 156–7, 158
Davey, Thomas 291
Davis, David 139
Davis, Thadious 135
de Chirico, Giorgio 45–6, 47, 48–9,
53–5, 56
De iure belli ac pacis/On the Laws of War and
Peace (Grotius) 191, 192
De iure praedae commentarius/Commentary on the
Law of Prize and Booty (Grotius) 190–2,
196, 198
de Sutter, L. 55

Deleuze, Gilles 46–7, 49–52, 53, 55–6,
79, 280–1
democracy 59, 84; Badiou: art and 86–8;
freedom of expression 225; liberal 59,
61, 183; parliamentary 82, 83, 85;
sham 223
demonic see agonic is not yet demonic
Derrida, J. 12–13, 16, 17, 42, 49, 50, 93,
94, 95, 107, 115–16, 145, 194
Descartes, René 74
Detmold, Michael 165–6, 167
developing countries 221
digital media see copyright
Dionysus, Theseus and Ariadne 54–5
Dorfman, Ariel 177, 183
Douzinas, C. 61
drama: Euripides 81, 177, 180; Octavia
and abuse of power 196; play of terror
177–83; Shakespeare see separate entry
Dutch East India Company (Verenigde
Oostindische Compagnie) 190, 192, 195
Dworkin, Ronald 238, 239
Eagleton, Terry 108, 177, 239
Ealing London Borough Council v Race Relations
Board (1972) 166
economics 220–1; neo-classical 223, 226
education, legal: law firms 167–8;
workshops: visual and movement arts
168–76
Egypt: blindness of justice 252; hieroglyphs
261, 262, 264, 265
emblems, legal 259–71; sources 260–64
emergency, national 296–7
Enlightenment 67, 70, 74, 232, 234–5,
251, 252
environment 224
Erasmus 252
Estienne, H. 265, 266
Euripides 81, 177, 180
evil eye 252
expression, freedom of 8, 225
Fanon, Franz 253
Felman, Shoshana 283, 284
feminist aesthetics of Nella Larsen 135–46;
collective ‘pool of talk’ 144–5; curse of
Noah/Ham 135–6, 137–43, 144–5,
146; laughter and mockery 137,
142–4, 145, 146; lynching 137, 144;
malediction and benediction 135–6,
139, 140, 141–2, 143, 144, 145, 146;
re-naming and re-signification 141
Index 309
Ferne, John 262–3
Fish, Stanley 60, 61
Fleischer, Rasmus 219–20
force of law and Shakespeare 93–108
Foucault, Michel 3, 93
frame of seeing 254, 257
Frankland, George see Governor Arthur’s
Proclamation
Fraunce, Abraham 265
Free Culture see copyright activism
as art
free and open source software (FOSS) 220
freedom of expression 8, 225
Freud, S. 80, 142, 143
A Frolic of His Own (William Gaddis)
208–10
Gadamer, Hans-Georg 96, 238–9
Gaddis, William: A Frolic of His Own
208–10
Gaita, Raimond 174, 175
Germany 96, 97, 233, 234
Giacometti, Alberto 173
Girard, René 104, 105
globalisation 218
Goethe, Johann Wolfgang von 284
Goldenberg, David 139
Goodrich, Peter 53, 77
Gossett, Phillip 237
Gottsched, Johann Christoph 233–4
Governor Arthur’s Proclamation 288–94,
298–300; deferral of rule of law 294–8
grammar 234
Greenblatt, Stephen 93, 94, 98, 106
Grotius, Hugo 188–99; abuse of power
196; Lucretius: De Rerum Natura (On the
Nature of Things) 191–2, 193, 195; moral
doubt 190; non-European state practice
189, 195; Ovid (Metamorphoses) 196–8;
pre-history 196, 197, 198; private
property 195–6; secularity 192, 193;
self-interest 198–9; Seneca 196; Verenigde
Oostindische Compagnie (Dutch East
India Company) 190, 192, 195; Vergil
(The Aeneid) 193–5, 198, 199
Grünewald, Matthias (Mathis Gothart
Nithart) 276, 277–8, 279, 281, 283,
284, 285
Guantanamo Bay 181–2, 296–7
Guantanamo (play) 181–3
Guattari, F. 50, 55–6
Guernica (Picasso) 278, 279
Gündolf, Friedrich 96
310 Index

Haakonssen, Knud 198 Indigenous peoples: Aboriginal peoples

Habermas, Jürgen 154, 235 and rule of law 288–300; Iroquois
Hagenau, Nicolas von 276 people and North American settlers
Hale, Baroness 205 298–9
Hallward, Peter 77 individualism 223; equality, individual
Hare, David 178, 179, 180, 181 identity and sameness 292–4
Harington, Sir John 95, 101 international law 180, 188–9; see also
Hartman, Saidiya 136 Mare Liberum/The Free Sea (Grotius)
Hayaert, V. 265 International Monetary Fund (IMF) 221
Hayek, Friedrich von 223 Iraq 178; Abu Ghraib 276; sale of arms
Haynes, Stephen 139, 142 to 178
Heaney, Seamus: Limbo 206–8 Iroquois people and North American
Hearst, Patty 178 settlers 298–9
Hegel, Georg Wilhelm Friedrich 84 Isenheim Altarpiece: Crucifixion 276–9,
Heidegger, Martin 12, 33, 34, 35, 36–9, 283, 285
40, 41–2, 59, 60, 61, 66, 74, 75, 77, Islam 67, 68, 82
94, 97, 114, 117, 122, 123, 126, 146, Israel 97
150–1, 152–7, 158 Italy: eye as evil 252
Hendrix, Jimmy 300
Heraclitus 265 James, Heather 105
heraldry 259, 262–4 Jankélévitch, Vladimir 239
hermeneutics 1, 6, 13, 14, 80, 117, 118, jokes, political 142, 143
129, 236, 239, 240; Judaism 60, 61, Jonson, B. 100
66–7, 71n4; musical performance Joyce, James 107
236; poststructuralist 219 Judaism 59–71; command and
hieroglyphs 261, 262, 264, 265, 266, 268 obedience 59, 61, 63, 65, 68, 69;
hijab at school, banning use of 82 Greek polis as agora 59; hermeneutics
historical research, model for 238–9 60, 61, 66–7, 71n4; Job 68–9; morality
Hobbes, Thomas 70, 198, 199, 233–4, 60, 61, 65, 67; respect our parents 62;
295–6 Sabbath 62; Talmud 62–3, 64, 65; Ten
Hoffmann, Lord 205, 212–13 Commandments 62, 64, 69
Hölderlin, Friedrich 36, 37, 94, 283–4 Jung, C.G. 69
Holmes, Oliver Wendell 210, 215n 40 Jünger, Ernst 97
Homer (Iliad) 99
Horace 256 Kafka, Franz 10, 181
Horkheimer, M. 232 Kahn, Victoria 96
hospitality, law of: Mare Liberum Kant, Immanuel 1, 50, 74, 235, 255
(The Free Sea) (Grotius) 193–4, 195, 198 Kantorowicz, Ernst 94
Huizinga, Johann 101 Keene, E. 195
Husserl, Edmund 248 Kelly, Kevin 220–2
Kerman, Joseph 238, 239
Icarus 267 Kierkegaard, Søren 46–9, 50–2, 54, 55
Iliad 99 Klee, Paul 172
images, legal phenomenology of 247–8; Koh, Harold 180
blindness of justice 252–3, 257–8; evil Kott, Jan 105
eye 252; legal aesthetics 254–8; regimes Krauss, Rosalind 219
of visibility 251–4; scopic field 249–51; Kubiak, Anthony 178
vision and gaze 253–5 Kyd, Thomas 177
imagination, ethical see particularity and
universality Lacan, Jacques 79, 80, 250, 253
immigration law 82, 206–8 Lachner, Jacob 234
India: eye as evil 252 Lacoue-Labarthe, Philippe 84
 Index 311

Larsen, Nella 135–46 Marvell, Andrew 94

law of the sea see Mare Liberum/The Free Sea Marx, Karl 82
(Grotius) Maunter, Thomas 198
Lawrence, Stephen 178 Mead, G.H. 154, 155, 160n29
Legendre, Pierre 250, 257, 267 media 158
Legh, Gerard 263, 269 Meier, Heinrich 98
Leiris, Michel 281–2 Metamorphoses (Ovid) 196–8
Leonard, William Ellery 192 Miéville, China 189, 195
Lessig, Lawrence 220 Milbank, John 94
Levinas, Emmanuel 12, 35, 50, 172–3, Montaigne, M. de 95
211, 273–5, 276, 282, 283, 284 Moore, Nathan 52
Levinson, Sanford 236–7 Mozart, Leopold 231–5, 236, 237, 240
liberalism 68, 97 Mozart, Wolfgang Amadé 231, 235
linguistics, structural 247 Murray, David 264
literature and law 167, 204–5, 208; musical performance, natural law and
compensation culture: A Frolic of interpretation 231–40; challenge of
His Own (William Gaddis) 208–10; the individual 235–6; laws of
drama see separate entry; negligence cases ‘historically informed’ performance
210–13; poetry see separate entry; Roman 236–7
literature see separate entry; Shakespeare
see separate entry Nancy, Jean-Luc 84, 149, 153, 159,
Locke, John 233 248, 283
Lotter, Johann Jakob 233, 234 natality 140
Lucretius 191, 193, 195, 197 national emergency 296–7
Lupton, Julia 97 natural law: Mare Liberum see Mare
Lütteken, Laurenz 235 Liberum/The Free Sea (Grotius); musical
Lyotard, J-F. 60, 63, 66, 67–8, 74 performance and interpretation
231–40
McDermott, C. John 221 negligence cases 210–13
McGrath, John 178 nervous shock 211–13
McLoughlin v O’Brian (1983) 211–12 Netherlands: Verenigde Oostindische
magic, religion and law 139–40 Compagnie (Dutch East India Company)
Mailer, Norman 179 190, 192, 195
Mallarmé, S. 81, 107, 108 Newton, Isaac 74
Manderson, D. 21 Nietzsche, F. 7, 45, 74, 77, 81, 96, 177
Marchart, Oliver 84 Norris, Christopher 77
Marcus, Leah 100–1 North American settlers and Iroquois
Mare Liberum/The Free Sea (Grotius) 188–99; people 298–9
dominum (possession) and imperium Norton-Taylor, Richard 178, 181
(control) 189, 197; law of hospitality Nussbaum, Martha 167, 181
193–5, 198; Lucretius: De Rerum
Natura (On the Nature of Things) 191–2, oath 140
193; moral doubt 190; Ovid Octavia (play) 196
(Metamorphoses) 196–8; pre-history 196, ode 235
197, 198; private property 195–6; Old Testament see Bible
Roman law 188–9; self-interest 198–9; Orwell, George 101
Seneca 196, 197; Verenigde Oostindische Ovid (Metamorphoses) 196–8
Compagnie (Dutch East India Company)
190, 192, 195; Vergil (The Aeneid) 194–5, pagans 62
198, 199 Palmer, Thomas 265
market regulation 222, 224–5 Palsgraf, Helen 209
Marsyas and Apollo 6–9, 13–17 Pan, David 97
312 Index
Pancirolus, Guido 262
particularity and universality 165, 166,
173; attention 168–70; beyond text
and the space to see 167–8; encounter
170–2; inspiration of encounter
174–5; law, vulnerability and aesthetic
perception 172–3; space to see 165–7
Passing (Nella Larsen) 135–46
pastoral ideal 235
Patterson, Lee 103
Patterson, Orlando 140–1
phallus 252
phenomenology of images 247–9; legal
aesthetics 254–8; regimes of visibility
251–4; scopic field 249–51
Picasso, Pablo 278–9, 280
Pinter, Harold 178, 181
Piratbyrån 218, 219
The Pirate Bay (TPB) 218
Plato 7, 73, 75, 81, 87, 117, 207, 233,
247, 252
plays see drama
Plutarch 252
poetry 204–6, 210, 211; Chaucer 103–4;
Heaney, Seamus 206–8; Homer 99;
Lucretius 191–2, 193, 195; Marvell,
Andrew 94; Ovid 196–8; Vergil 73,
194–5, 198; Whitman, Walt 149–50,
153–4
poietic ‘justice’ 33–43; iustitia 33, 40
political jokes 142, 143
politics and art 218; see also copyright
politics and law: Alain Badiou 82–6
Pope: papal power 255
positivism/positivisation 59, 238, 256,
258; Grotius, Hugo 199; musicology
236, 238
postmodernism 46, 219, 220
poststructuralism 2, 3, 4
Pratt, John 103–4
Prebisch-Singer hypothesis 221
precedent/stare decisis 46, 118, 205,
239, 255
psychiatric injury 211–12
psychoanalysis 3, 80, 137, 249–50
public choice theory 226
Quicksand (Nella Larsen) 136–7
racial discrimination 166; Australia 296–7
racist laws, language and violence: Passing
(Nella Larsen) 135–46
Rancière, Jacques 253
redistribution of wealth 223–4
Reformation 249
regulation of markets 222, 224–5
religion: Christianity see separate entry; Islam
67, 68, 82; Judaism 59–71; magic, law
and 139–40; pagans 62
Rembrandt 106
repetition or awnings of justice: abandon
53–6; again and again 45–7; giving up
47–9; logos and nomos as repetition 49–53
rhetoric 179; enthymeme 224–5; Roman
legal practices 188
Ripa, Cesar 252, 260
Rollenhagen, Gabriel 261
Roman law 52, 188–9
Roman literature 189–90, 193; Lucretius
191, 193, 195, 197; Ovid 196–8; Seneca
196; Vergil 73, 194–5, 198
Romanticism 217, 219, 235, 239
Rosen, Charles 237
Rosen, Stanley 76
Ruden, Sarah 198
rule of law and Aboriginal peoples 288–94,
299–300; assimilation 297–8; deferral
of 294–8; equality, individual identity
and sameness 293–4; making room for
each other 299; martial law 294; mythic
retrospectivity 291; social and material
difference 295
Rumsfeld, Donald 179
Russell, John 279, 280, 281
Rust, Jennifer 97
Ryan, Kiernan 104
Ryan, Lyndall 291
Sandrart, Joachim von 277
Sartre, Jean-Paul 253
satire on compensation culture: A Frolic
of His Own (William Gaddis) 208–10
Scarman, Lord 212
Schlegel, August Wilhelm 236
Schleiermacher, F.D.E. 66–7
Schleuning, Peter 234
Schmied, Wieland 281
Schmitt, Carl 3, 78, 83, 93, 94, 95–9, 100,
102, 104, 107, 108, 296
Scholem, Gershom 283
sea, law of the see Mare Liberum/The Free
Sea (Grotius)
Semenza, Gregory 100, 101
Seneca 151, 196

Shakespeare and force of law: As You Like
It 96, 107; Coriolanus 107; Hamlet 94, 95,
96–9, 105, 107; Henry IV, Part 1 93–4;
Henry IV, Part 2 106; Henry V 94–5;
Julius Caesar 94, 107; Lear 95, 107; like
an Olympian wrestling 99–106; Love’s
Labour’s Lost 105, 107; Macbeth 95, 105,
177; Merchant of Venice 93; Merry Wives of
Windsor 101; A Midsummer Night’s Dream
94, 107; Richard II 95; Richard III 95;
rough power 93–6; stuff happens 96–9;
The Tempest 107, 138; this hideous
rashness 106–8; Timon of Athens 107;
Troilus and Cressida 99–100, 101–6,
107–8; Twelfth Night 99, 107
Sharpe, Tony 209
Sheehan, Jonathan 234
Shuger, Debora 94
Sidney, Philip 205
Signorelli, L. 278
slavery 136–9, 140, 141, 142, 143
Slovo, Gillian: Guantanamo (play) 181–3
Soans, Robin 181
social choice theory 226
socialist realism 225
software: free and open source software
(FOSS) 220
Sophocles 59, 283
South and South East Asia 189
spelling 234
Spillers, Hortense 136
stare decisis/precedent 46, 118, 205,
239, 255
Steinberg, Philip 188
Steiner, G. 48
Stephenson, LJ 212
Steyn, Lord 182, 183, 213
Straumann, Benjamin 188–9
Strauss, Leo 97
strict construction 236–7
structural linguistics 247
Stuff Happens (David Hare) 179, 181
Suetonius 234
suffering, imagery of 273–9; suffering,
ethics and the expressionless 283–5;
suffering without narrative 279–82
Sunde, Peter 218
Talmud 62–3, 64, 65
Taruskin, Richard 236–7, 239
Tasmania: Aboriginal peoples and rule
of law 288–300
Index 313
terror, the play of 177–83
text, beyond see particularity and
universality
theatre see drama
Theseus, Dionysus and Ariadne 54–5
Thomas Aquinas, Saint 233
Thomasettis, Thomae de 270
Thompson, E.P. 297
Tolstoy, Leo 167
Toscano, Alberto 77
transitional justice 273, 275
truth commissions 273, 275
Two-Row Wampum 298–9
United Kingdom 166, 206, 207; colonial
history: Aboriginal peoples and rule of
law 288–300; Conservatives 94
United Nations 97, 100
United States 175, 179–80, 236, 296, 300;
Abu Ghraib 276; Guantanamo Bay
181–2, 296–7; racist laws, language
and violence: Passing (Nella Larsen)
135–46; strict construction 236–7;
United Nations 97
universality and particularity see
particularity
Upton, Nicholas 263
van Ittersum, M.J. 195
verbatim and quasi-verbatim theatre
178–83
Verenigde Oostindische Compagnie (Dutch
East India Company) 190, 192, 195
Vergil 73, 193–5, 198
Voltaire 98
war: hospitality and possibility of 194;
just 188
War and Peace (Tolstoy) 167
Warhol, Andy 46
Wegener, Claudia 284
Weheliye, Alexander 136
Weil, Simone 174, 175
welfare, aesthetics of 149–59; Dasein
150–1, 152–3, 156–7, 158; definition
of welfare 151–2
welfare state 157, 158–9
White v Chief Constable of South Yorkshire Police
(1999) 213
Whitman, Walt 149–50, 153; So Long
149–50; Song of Myself 149–1, 153–4
Whitney, G. 267
314 Index

Wilberforce, Lord 211–12 workshops: visual and movement

Wither, George 261–2, 267 arts 168–76
Wittgenstein, L. 77 Worms, Frédéric 75, 81
The Women of Lockerbie (Deborah
Brevoort) 180–1 Žižek, S. 54
The Women of Troy (Euripides) 177, Zweig, Stefan 98
180, 181