Sade’, brings up the rear with his anal-sadistic location shot for the juridical disposition. There’s more to this line-up because the cartography of the legal impingement on our lives – intimate, body-bound and insidious – is as complicated as it is prevalent. In the wake of Kafka’s grammar of hypothetical speculation, it has become impossible, argues Lyotard, to prove one’s innocence. Kafka was already driving while Black, steering a minority’s literature of legal despair.
In these times, what still passes for ‘human relations’ seems irremediably beholden to legal institutions and conceptual grids. The prediction made by de Tocqueville about the modern democratic state rings true: the citizenry will have complied with the juridification of all relations. No moment of interiority will be spared legal assignment, interrogation or potential dispute. (I amp up for effect. Alexis de Tocqueville had enough problems on his hands without having to trifle with a presumed subject’s ‘interiority’ and other Hegelian acrobatics.) Tyrannical breakouts have separated off from paternal law – and, we could add, calling upon a pending Kleinian politics, that the tyrannically seized soul has failed to internalize the good breast, to learn repair or submit to reparative justice. Is the commitment to reparative justice still something we can imagine, if only as a regulatory ideal, an aneconomic gift? It seems as though we must do so, imagine and commit to repair, even if Heinrich von Kleist has made the aporias of repair undefeatable for us moderns.
PRELUDE
§A. Law. For more than two thousand years, the West has lived under the rule of Law – a jealous rule, which tolerates infractions only insofar as they are the means by which offenders come to recognize anew its incontestable supremacy. This dominion was not built in a day, and has not failed to provoke resistance; but the legal proposition possessed, it would seem, a persuasiveness that its rivals did not: it won. Looking carefully at its contemporary form, it is possible to understand why: behind Law, there extends a whole domain of thought, valorizing order, reason, coherence, power and security. Even today, this domain of thought constitutes the default regime for everything, from university research to café conversation – from the perspective of this regime, anything escaping the parameters of the domain in question would lead to chaos. And the fear of chaos is without doubt the dominant psychological factor in the ecology of Law: the fear that something should flee, dodge, escape the lawful state of things, and in this way, reveal it to be nothing. The real is what Law fears: the whole history of the progressive triumph of the idea of Law in the West can be reread in light of this maxim, which might be thought of as embodying, in an originary way, its inexpressible. By this, we must understand that what Law fears most is not the real as such, but its own real, everything that traverses it and makes it possible – but that makes it possible only by being excluded from its discourse. Excluding its own real is, moreover, the most essential task to which the category of Law has been devoted since the beginning: Law is what works to exclude its own real – Law is what accomplishes its own closure on its blind spot. This beginning is Greek and philosophical, where the real that the category of Law sought to exclude was that of Right, as though Law only existed to make Right impossible except under its exclusive direction.1 In this way, the most precious juridical treasures were forgotten, and with them countless inventions allowing for the imagination of unregulated lives and societies that would yearn for movement. After Law, we will have to learn to remember them.
Note
1 NB. For the way in which ‘Law’ and ‘Right’ are used through this text, see the Translator’s Note.
Note
§A. – On the concept of the real: Jacques Lacan, The Seminar of Jacques Lacan IX: Identification, trans. Cormac Gallagher from unedited French manuscripts (London: Karnac Books, 2002); Alenka Zupancic, Ethics of the Real. Kant with Lacan (London: Verso, 2000); Slavoj Zizek, The Most Sublime Hysteric: Hegel with Lacan (Cambridge: Polity, 2014); Massimo Recalcati, Il vuoto e il resto. Il problema del reale in Jacques Lacan (Milan: Mimesis, 2013); Alain Badiou, À la Recherche du réel perdu [In Search of the Lost Real] (Paris: Fayard, 2015). See also Laurent de Sutter, Théorie du kamikaze [Theory of the Kamikaze] (Paris: PUF, 2016).
1 NOMOS
§1. Isonomia. Tradition has forgotten Cleisthenes; of all the great ‘legislators’ of ancient Greece, however, he is doubtless the one whose decisions have produced the most serious consequences – and have enjoyed the most enduring legacy. Unlike his predecessors Draco or Solon, he left just a spectre of his existence; we know of his life only through Herodotus’ account – and of his laws only through the criticisms of his opponents. But it is a spectre that has forever haunted the history of Europe, as though, at a moment that was as crucial as it was unexpected, it had bestowed on it the decisive direction towards what, for modern man, it was destined to become. When we speak of Greek ‘democracy’, of the political moment when, suddenly, a new concept bursts into the history of governance and breaks the old equilibrium of aristocracies, it is really of Cleisthenes that we are speaking. Because it was Cleisthenes who, in order to block the attempt to establish an oligarchy in Athens after the tyrant Hippias had been forced out at the beginning of the fifth century bce, decided, for the first time, to call on the demos. Where the former equilibrium had been based on a familial logic, in order to reform the city’s institutions so that no tyranny could ever return, Cleisthenes chose to embrace a geographical logic. Until then, Athens had been governed primarily by the aristocratic members of the four major Ionian tribes; from now on, it would be governed by the inhabitants of the one hundred ‘demes’ into which he divided the city’s territory. To this new equilibrium, the name ‘isonomia’ was given – equality in the attribution to each of the share to which they were entitled in the city’s governance, guaranteed by the institutions that Cleisthenes had created to this end. We should even, perhaps, be more precise: isonomia did not just define a form of equality in the attribution of stakes; most importantly, it defined a form of equality before the instrument of this attribution. An instrument for which Cleisthenes invented the name, at the same time that he revealed, through the reforms he conducted with its support, the principles that governed it – the name ‘nomos’, the name of ‘Law’.
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§2. Thesmos. Contrary to a common misconception, the invention in Greece of what we still call ‘Law’ was a phenomenon as belated as it was localized – a kind of exotic singularity, belonging to Cleisthenes’ reforms. Before them (before, say, 507–506 bce), no one in the Greek world had ever paid sustained attention to the word ‘nomos’, or imagined that it could signify something like a ‘Law’. This is not to say that the word was unknown: a great variety of usages have been noted, going back to Hesiod (it does not exist in Homer) and encompassing a large proportion of ancient Greek literature, extending to Pindar and Aeschylus. Notwithstanding this diversity of usage, however, none implied the very peculiar form of normativity that has habitually been associated with the idea of ‘Law’, and which Cleisthenes helped instigate. Before his intervention, the Greeks were not familiar with the idea of ‘Law’; they knew only a constrained form of decision or commandment which they called ‘thesmos’ – ‘that which is posited’. When, a century before Cleisthenes, Solon recalled the decisions he had made during his archonship, congratulating himself on the wisdom they demonstrated, he did not employ the word ‘nomos’, but rather ‘thesmos’. It would have been absurd to consider the matter any further: since Homer, this was the word that had been used to refer to the results of the political activity of the city’s leaders inasmuch as it was a matter of an activity focused on positing something. As Émile Benveniste once noted, the Indo-European
