In some ways, this is a striking confirmation of one of the central theses of the work: that over the course of Western history, the law, ‘la loi’, with everything it entails in terms of abstraction and normativity, has come to dominate and determine the concrete and casuistic ‘droit’. The obvious solution, and the one used throughout this work is to translate ‘loi’ with ‘law’ and ‘droit’ with ‘right’. This procedure is not, however, perfect, and carries certain risks. The most significant of these is that ‘right’ in English has come to be associated almost exclusively with the ‘rights’ of the ‘subject’, which is to say the individual rights the subject embodies within a political construct. ‘Right’, as it is predominantly used in this work, is better understood in its opposition to ‘Law’: a disruptive activity of becoming that challenges, perhaps deconstructs, the being of Law. All this becomes most explicit in the ‘Postlude’, which returns to all the oppositions in play throughout the work as it passes through a global series of legal traditions. Throughout the English text, as it builds to this finale, I have, therefore, capitalized ‘Law’ and ‘Right’ when they are clearly to be understood in the tension of this opposition. This is intended to serve as a visual reminder that neither ‘Law’ nor ‘Right’ quite map onto the common meanings the terms carry in English, and it will be to some degree the responsibility and the experience of the reader to come to an understanding of how they operate across this text.
Foreword Avital Ronell
Our relation to the law is not easy to untangle or tame using merely historical narrative. Fortunately, Laurent de Sutter provides us with a scanning apparatus, hermeneutically fine-tuned, by which to measure essential prompts of juridical life. With the care of a relentlessly searching analysis, his text hands us a number of flagged contracts to renegotiate and, where necessary, to repudiate.
We know that, beginning with Cleisthenes’ fateful intervention, philosophers bristled while they defended the demos, worried about the takeover of a mob primed to go off locked and loaded, lawless and intemperate. After Law offers a sweeping historical account of conceptual overhauls that are responsible for boosting democratic tenacity in the face of so many obstacles and their punctual power failures. Perhaps now more than ever our legal and juridical inheritance presses upon us, urging a review of a speculative jurisprudence that involves an untold history and stealth attack plans.
Timely and incisive, this work repurposes our juridical scaffolding, making allowances for wide-ranging effects of existential fallout in the political realms that affect us today. It faces down the transcendental assumptions that fuel our relation to the law and its legally constellated satellites. Without explicitly calling up psychoanalytic theory, After Law locates the power-pump of social narcissism and forms of drivenness that undergird an abiding relation to the law. We are given to understand that, like Kafka’s man from the country, one’s condition of sheer stuckness ‘before the law’ cannot be abrogated. This predicament holds for a diverse and often incompatible cultural rhetoric of law and governance, a temporal span that involves the subtle implications of finding oneself called before the law only to be snagged after the law’s epoch of authority.
On civic alert, Professor de Sutter examines the moves that were made historically in order to supplant familial logic with the idea of Law and the implementation of human rights. He trains his analysis on distinctions drawn by the fundamental juridical structures reconfigured under structural mutation, their emergence and inherent instabilities – in some cases, their unapologetic takeover stratagems. The text’s questioning looks at the foundational yet elusive facets of law and aporias of power. Its microanalyses interrogate the workings of Law, constitutions, penal codes, institutions, acts of positing and the co-implicating force of hypothetical judgement that hold them together as well as apart. The account of juridical presuppositions reflects the processes of corresponding historical changes in political vocabularies. So that ‘no tyranny could ever return’, the reigning god or legislator in Greek legal arbitration had to be replaced by the City itself, a repartition involving a new understanding of sharing together with an ever new distribution of civic responsibility. The strife between human nomos and divine nomos, in the limited yet self-replicating instance of ancient Greek philosophy, has had to be renegotiated at crucial junctures in modernity. At one point, the agonistic terms of law-giving powers reappear with the Spaltung (split-off) discussed in Walter Benjamin’s reflections on law and violence in terms of the striking force that differentiates human from divine law. Yet, how do we live with a relation to law whose authority is eroding?
In Freudian terms of social pessimism, it may well be the case that we will never be able to effect a jailbreak from narcissistic lockdown and expunge the vacuity of shameless self-promotion that pervades our times, exercising a reckless disregard for the rule of law and its principled apportionment of equality. We’re neither the only nor the first ones to contend with encroaching morphs in despotism, the chokehold of a lawless political organization. De Sutter’s argument indicates that every social body on record has been tempted by tyrannical excess.
Ensnarled in familialisms and archaic structures of troubled coexistence, each phase of civilization has registered a will to break free of local bullying tendencies, hoping to dissolve tenacious political strangleholds. The tyrannical impulse exposed by Plato’s legendary analyses and the refinements of Aristotle’s political warning system exemplifies philosophical pushback on autocratic incursions. In the assertive span of Athenian juridical life, Cleisthenes was the first to call up Greek democracy. Not everyone in the history of philosophy was on board with the initial rallying call, and certainly no philosopher proved more ready to march along with a destructive politics than Martin Heidegger in 1934. What does this tell us about philosophers –not to say of formations of will-to-power, and the enduring appeal, whether heeded or dismissively cast, made in theoretical studies of Law?
By now, we know this much: the tyrant, whether on the loose or held in place, is always ready to pounce, breaking out of a republic of unchecked phantasms and into states of lawless abandon. According to the tag-team of Plato and Freud, one falls into tyranny when betraying the democratic model of paternal legacy, squeezing out the law internalized, honoured, remembered. Superego and the inheritance it implies are kicked to the curb, fully divested by the tyrant who, according to Plato, has snuffed out paternal mimesis and regulatory hand-downs.
The law and its representatives are disseminated by various institutions and positing acts that exercise a provisional flex of power. Where regulatory habits are disdained, if arbitrarily applied, and surveillance mechanisms idle on the edge of lawful intrusion have spread with viral tenacity, we need to contend with crucial questions of a primary order. Why are we governed by laws, and who gets to escape their alternatively crude and sophisticated forms of punishing inscription? How do we account for the historicity and cultural codifications of Law that reassert its authority – or expose transcendental principles as problematic and wobbly? And, to introduce a perspective covered in Derrida’s reflections on Benjamin’s essay ‘The Critique of Violence’, what is the force of Law? How does it determine or overdetermine culpability, axioms of retribution and various forms of juridical sentencing? Is the regime of legal violence inescapable once a subject is placed in signifying chains?
Jean-François Lyotard, for his part, takes up the juridical shortfall in The Differend, a theoretical rollout citing the need for a pushback on legal falsification, gestures that could not be registered by techniques of legal review: a nervous tic, a blush, a hysterical cough, yet another somatic outbreak such as hives, or the resolute silence of a torture victim. Lyotard folded these unlitigatable shudders into what he named a ‘phrasal regimen’. The phrasal regimen covers an entire syntax of extra-legal efforts to speak a truth before a court without reverting to a strictly coded and pre-authorized rhetoric. These efforts involve releasing new types of information on the semiotic build-up of a distressed body under interrogation, its attendant symptomatologies, including the inability to say what one has witnessed or recount the violence to which one has been made to succumb. In Masochism:
