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As such, for Kelsen, law is what he calls a “coercive norm.”5 Derrida makes an analogous argument: he elaborates both the genealogy, from Montaigne and Pascal to Kant, and the political horizon of such a concept of law as the “force of law.”6 In contemporary political thought, the answer to the first set of difficulties takes the form of an attempt to discover if the universal has a place beyond the theological determination of politics, and thus to think the universal in terms of the contestation of personality, the division of the subject, the death of God, expropriation, or arche-violence. The second set of difficulties is linked to the first through the question of civil disobedience. The wager implied in the traditional praxis of civil disobedience is that the violence of law—and even the most revolting implementation of this violence in the form of “law enforcement”—presupposes such a universal. The wager is that this law, no matter how unjust, can only ever be enforced as the law—that the active enforcement of a law (the law of a specific land) necessarily implies the claim that it is the law and thus universal. In the case of an unjust or discriminatory statute, the enforcement of the law will always entail a presupposition that contradicts the letter of the law.
The legitimacy of civil disobedience does not ultimately depend upon the principle that the act claims to uphold, but rather inheres in the specific theater of its public gesture. On the one hand, as Rawls writes in his chapter on the topic, the act of civil disobedience “addresses the sense of justice of the majority of the community”7; it openly insists on the disjunction between the existing laws and the law of law. On the other hand, the same act has a scope that exceeds the open airing of a principle of justice. Its function is not to transform the community into a theater of the beautiful soul, to represent an exclusive adherence to a law that transcends the law of every land. The paradoxical “civility” of civil disobedience inheres in the fidelity of this public action not to a higher law, but to the very same unjust law of the land that it openly disobeys. The gesture that represents such fidelity is in fact the most dramatic moment in any act of civil disobedience: the moment at which the actors submit to the legal consequences of their action, allowing themselves to be arrested. As Rawls writes, “[c]ivil disobedience…expresses disobedience to law within the limits of fidelity to law, although it is at the outer edge thereof. The law is broken, but fidelity to law is expressed by the public and nonviolent nature of the act, by the willingness to accept the legal consequences of one’s conduct.”8 Beyond demonstrating the contradiction between the law of God and the law of the land, the theater of civil disobedience 142 Penumbra would thus body forth this other contradiction between the universal implied by law enforcement and the discrimination written into the law or otherwise manifest in state action. This activist “willingness to accept the legal consequences of one’s conduct” displays an adherence to the sheer fact of the law beyond the set of its specific dictates.
For Rawls, this fidelity to law remains subordinate to the task of addressing the community, to the expression of conscience. To some extent, he advocates a kind of “responsible” activism, designed both to advance its claims and to reassure the state that disobedience is neither an act of war, juvenile resentment, or pathological compulsion, but is rather “conscientious and sincere.” To accept the legal consequences of one’s conduct (arrest, bodily injury) would thus function as a pledge of allegiance to the rule of law as such, that the act for which one is being punished has been undertaken in the name of a sense of justice (or even “a theory of justice”): “This fidelity to law helps to establish to the majority that the act is indeed politically conscientious and sincere, and that it is intended to address the public’s sense of justice. To be completely open and nonviolent is to give bond of one’s sincerity, for it is not easy to convince another that one’s acts are conscientious, or even to be sure of this before oneself.”9 It is important to be clear on this point: fidelity to law—to the rule of law or the mere fact of law—does not necessarily imply allegiance to constituted authorities, but rather to the possibility of contestation from which such authorities derive their own claims to legitimacy. The rule of law does not name the sovereignty of the prevailing order, but rather the point at which sovereign power loses control of itself—both in the sense that, in defense of unjust laws, state violence becomes constitutively illegitimate and excessive, and in the sense that it is at precisely the point of such excess that state action unavoidably exposes itself to contestatory interventions.
In the courtroom, the oath invokes the law of God as the guarantor of the truth. In the theater of civil disobedience, Rawls claims that one would “invoke” one’s own present acquiescence to punishment (for example, going limp upon seizure by the police) as an attempt to guarantee (“to give one’s bond”) that one acts in accordance with the law of God itself. This is precisely the rhetorical situation of King’s letter written from prison. In other words, civil disobedience presents a situation in which God is not the ultimate guarantee, a situation in which one must establish one’s credibility and sincerity according to an immanent criterion in order to make others believe that one truthfully acts in the name of God or a rational sense of justice. This criterion is what Rawls calls simply “fidelity to law,” but would more appropriately (and problematically) be called fidelity to the consequences of law, fidelity to the “force of law,” or even fidelity to the violence of law. The disobedient protester does not simply contest state violence in the name of a higher principle of nonviolence, but rather openly (and contemptuously?) “swears” on the violence to which he submits at the very moment he is acting out of respect Lacan at the Limits of Legal Theory for a higher law.10 The force of law thus opens a space in which it becomes possible to claim adherence to a universal principle, in which it becomes possible to expose one’s adherence to the universal as universal, rather than as an unverifiable private predilection. Indeed, the universal only becomes thinkable within the horizon opened with such exposition.
THE FULFILLMENT OF THE LAWCivil disobedience thus manifests an unavoidable and fundamental engagement with the law, without this law being reducible either to the statutes of a determinate legal order or to a law that transcends all legal orders. The law at stake emerges rather at the point where the “sincerity” of the act turns into a theatrical ironization of violence. It is not a coincidence, therefore, that the law in this sense should occur as a poetic topos.
One of Schönberg’s choral song cycles (Sechs Stücke für Männerchor, op. 35),
from 1930, includes the following lyrics:
That there is a law which all things obey
the way you follow your Lord:
a law which is master of all things the way
your Lord is your master:
this is what you should recognize as a miracle!
That someone decides to rebel is an obvious banality.11 These lines not only reduce the act of rebellion against the law to the status of banality, but also implicitly expose the limits of any theoretical attempt to elaborate a concept of law as such. The tonality of exhortation in general arises from a rupture—in this case, that rupture with the regime of sufficient reason called the “miracle.” Accordingly, this exhortation asks its addressee to accept this rupture as the condition for thinking the law. It asks one to begin with the illegitimate fact of a law without concept.
Any discourse that attempts to theorize the law will be beset by the suspicion that its ultimate purpose is to uphold the preservation of an illegitimate and coercive legal system. When speaking of the law, one opens oneself to the accusation that this term represents merely the aspiration of a specific system of law to legitimate status, that one keeps an entire penal code in reserve for those who need convincing in order to accept that this law is the law. To
speak of the law is always illegitimate simply because there is no such thing:
there are only laws in the plural whose aspiration to the status of law will always be infinitely contestable. This plurality of laws, however, does not in itself invalidate the claim of each law or system of law to be lawful, does not make it impossible for each law to present itself as the law. On the contrary, this plurality is irreducible because the law is nothing other than the mere fact—the miracle of which Schönberg’s song urges us to recognize—“that 144 Penumbra there is a law.” Law as such thus becomes inseparable from the withdrawal of the concept or principle of law, from the fact that there is a law beyond any access to what law is. What Schönberg calls the “miracle” of the law’s existence would thus name its essential excess, the event of its presentation beyond its own concept. The decision to rebel thus becomes a banality, amounting to nothing other than the claim that a given law is illegitimate because it has no right to call itself law, while such illegitimate nomination is in fact inseparable from the structure of law as such.
The same problems arise when one attempts to take up the philosophical question, “What is the law?” On the one hand, the question seems to refer to the essence of law or the concept of law. On the other hand, this version of the question will always be displaced by another. To ask “What is the law?” can always amount to asking “What is the law that applies to this case?” “What does the law say in this situation?” Further, the problem of what the law says is not limited to knowing which law applies in any particular case, but extends to the problem of understanding what the specific applicable law means. Indeed, it is possible to become so absorbed with knowing what the law says that the question of its essence is indefinitely deferred, if not forgotten. The miracle of the law, therefore, would not so much occur as an epiphany before which one stands paralyzed with wonder; rather, it would lie in this engaged relation to the saying—the “jurisdiction”—that will have always carried the law beyond the question of its essence.
What both the Jewish and the Christian traditions call the fulfillment of the law names the way in which this engaged relation to the saying of the law has always already been folded into the law itself. According to one rabbinical tradition, for example, Moses does not only deliver the Torah to the Israelites at Mount Sinai, but at the same time he is also supposed to have “revealed” to them every eventual commentary on the Torah and all the commentaries upon those commentaries.12 The commentary on the saying of the law, in other words, comes “before the law” itself. Saint Paul predicates the Christian event upon the same tradition when he postulates that love for the neighbor is the fulfillment of the law: “The commandments, ‘You shall not commit adultery; You shall not murder; You shall not steal; You shall not covet’; and any other commandment, are summed up in this word, ‘Love your neighbor as yourself.’ Love does no wrong to a neighbor; therefore, love is the fulfilling of the law” (Rom. 13:8-10). Paul departs from the rabbinic tradition only to the extent that he emancipates the relation to the law from the historical revelation of the law itself (from the tradition of Sinai). Instead, he finds the relation to the law in the praxis of love for the neighbor: love does no wrong to the neighbor. The law is “revealed” in the love for the neighbor, and this love reveals itself as the “miracle” of an engagement with the law (its “summation”) that is both “older” and “newer” than the gift of the law itself.
Lacan at the Limits of Legal Theory
DIVINE VIOLENCEIf the attempt to present a law as the law can never be upheld without reference to a coercive or punitive power, the point of the decision to rebel would be to contest this power (especially in cases where its deployment is manifestly unjust). The problem with such rebellion, however, is that it presumes the possibility of purifying law of its association with sovereign power.
It can only contest the injustice of the power that is supposed to uphold the law in the name of the law “itself,” or rather, in the name of the pure principle of a law whose legitimacy would not be contaminated by an appeal to violence. In other words, acts of rebellion remain effective only so long as they engage determinate systems of law, acts for which the responsible parties can be prosecuted. But such acts would lose their basis if a punitive violence, perhaps even of the most extortative variety, were inseparable from the pure concept of law as such—if this concept were nothing other than a “fact” to whose acceptance there is no alternative but the pain of death.
In “The Temptation of Temptation,” his Talmudic lesson on the relation between law and reason, Emmanuel Levinas elaborates a tradition according to which the horizon of coercion and punishment emerges inseparably from the original gift of the law itself. Levinas’ text is devoted to a passage from the Tractate Shabbat (88a and 88b) that comments on the simple lines of Exodus 19:17: “Moses brought the people out of the camp to meet God.