Well burrowed, old mole!

In order for privilege to continue to exist it requires the cooperation of those whose non-privileged status makes privilege possible.  Law is the chief means by which this marvelous and absurd co-operation is ensured in modern society.  Privilege is the modern equivalent of slave mastery.  One cannot be a master without at least one slave.  One person’s privilege is another’s disenfranchisement.  Privilege is non-corporeal inequality.  It shatters the very idea of human nature, if some are privileged, one cannot speak of one humanity, but a heterogeneous humanity of masters and slaves. What universality can there ever be if one group is exploited by another? How can herd and herdsmen be seen as one, or see each other as of the same species?

     Though the above is substantially true, it is true in a more sublimated sense in our present world.  Where in the past the existence of a class of slaves was not viewed as anything particularly evil, today we shun such overt statements of inequality.  Today, we have privilege, which is different from the master and slave system in what may seem to be a subtle way, but in a way that is very important.  The difference is that slavery is a situation in which the slave is denied access to the law, except possibly through the mediation of one’s master; now, today we take great pride in the proposition that all men–as they once were before God–are equal before the law.  While one must concede that we are all permitted relation to the law in some sense, privilege is the asymmetry in this relationship across social lines.  Privilege is radical inequality subsumed within law.  ‘Privi-lege’ means private law; it means that certain groups and individuals in a society have a special relation to the law.  The main characteristic of this relation can be expressed as the distinction between activity and passivity.  The privileged group has an active relationship to the law, they make the law, they can be said to make of law an instrument, able to be bent to the dictates of their will, to control the interpretation, concrete implementation and thus the force of law.  The group which is not privileged are positioned in a passive relationship to the law, they follow the law, experiencing law as  something external to them which must be obeyed, over which they have no control and in the face of which their will is rendered impotent by a power beyond their power.  Now, we should not absolutize this distinction because it is entirely possible for the privileged to lose their privilege if the other people in the society should will such a thing, but by definition such an overturning would either occur outside ‘law’ or would be a result of a qualitative change in the legal regime which would render the law utterly other to what currently passes under that name.  Also we should remember that the system of law relies on the same co-operation that we discussed in the first paragraph; without the active assistance of its victims it is merely a spiderweb of symbolic nonsense spun around a core of violence attempted physical intimidation. 

       Thus,  we must ask the question of law as such, we must not ask whether such and such a law is desirable, for as soon as we have asked that question we have thought of laws as single discreet objects, under that idea we will be stuck in a discussion of how they are created from bills on Capital hill.  Such a discussion does have its value, but not at the expense of the discussion of law as an institution, rather as a complement to it.  Laws, like propositions in scientific theories, do not have meaning in isolation , they have meaning in a web, as a group of laws, even a regime of laws. This questioning of law must also question order, for law is inseparable from its order, and justice-which is traditionally invoked in discussions of law-seems to function as a spiritualization, an idealization or a tarting up of order.  We will ask questions such as what are the conditions of possibility of the institution of law? As well as what is the nature of order and what is its relation to law? We will also find it necessary to ask: what is the relation between ‘law and order’ and ‘chaos and violence?’ This critique will produce a machine for those who are fascinated or enchanted by the concepts of law and order, a machine which they can use to break free, it will also be a machine that can be used by those who would challenge the legitimacy of law as such.  This essay should not be seen as a provocation to crime because once one has ceased to believe in law there is no such thing. 

      Let us begin with the point made so long ago by Ammon Hennacy, when he asked:

What is the point of having laws when the good people don’t need them and the bad people don’t obey them?

Though one may choose to view this statement as moralism and dismiss it, it is also possible to read this statement a few more times and advance another interpretation.  Hennacy’s statement has a number of important implications and a great deal of revolutionary force because it draws attention to the distinction between legality and what we would do if we were free. In other words, he simply states the contradiction at the heart of the institution of law, he gives voice to the absurdity of the institution that so many assume is anything but absurd.  It points to law as yet another of the so called ‘logical’ or ‘rational’ institutions of civilization which are but rationalizations of highly irrational bases such as domination or plain stupidity.  Hennacy advances the ultimate futility of law, which culminates in the existence of two laws at any given time within a legal field, the law that people ‘live under’ and the law that people live with.  The first law is the one which the state is supposed to enforce, a better name for this is legislation or explicit law.  The second law comprehends the practical level of concrete daily life in which we no longer deal with formulation of legislation but we deal with application, this exceeds the first law, on this level which Benjamin refers to as ‘police law’ we are dealing with something like the implications of the mode of conduct of individuals, we can call this level the implicit law.  This is similar to the necessity of providing operational definitions in the empirical testing of a scientific theory.  We can all acknowledge that implicit law precedes formal written law in history, implicit law comes from the exigencies of social coexistence whereas formal law is the prerogative of Gods and states.  This is the crucial characteristic of this point of departure: Hennacy does not assume that law is necessary to the social body, and we share this assumption, he declares that law is superfluous to free social life. 

     If law is not native to social life as such, we must look elsewhere for its conditions of possibility.  The essential fact of law is twofold; first, it is made by people and second it is obeyed by people.  Thus, we must begin from the division of people into two categories those who make and those who obey.  So, law becomes necessary as a condition of reproduction of a particular sort of social coexistence. Law as we see above, has as a condition of its possibility a sort of “pathos of distance” in which a group of people view another group or individual as qualitatively different from them, higher or superior.  If we want to find a historical example which shows us “distance” in its most naked and unrepentant form, we can look to Sparta.  Sparta is a very interesting case because it has formed the basis of many utopias.  It seems to be a convention of the genre that every utopian author must assimilate one or another of Sparta’s practices.  Sparta has influenced thinkers from nearly all political backgrounds, democratic communist fascist and so on.  Lycurgus’ ideal of a perfect Sparta governed by an austere and violent master race has found a disturbing number of sympathizers from Plato to the United States government to Rousseau to Hitler.  In Sparta, the Spartans were the citizens and the masters, the helots were the non-citizens and the slaves.  The Spartans were a warrior elite while the helots were an agricultural labor force.  In order to have an agricultural slave race, the Spartans subjugated one of their neighboring peoples.  In order to maintain this group of people in servitude the Spartans paid the price of constant paranoia and militarism.  However, at the same time they attempted to found a utopian society based on the ‘classical martial virtues’ a perfect polity, a work of art which they may have seen as the ultimate justification for the servitude of the helots.   

    The problem with this type of “utopia of distance” is that it is ultimately founded on a logic of the power of death.  Privilege requires the spectacle or the threat of death to maintain its existence.  That is how the helots and the Roman slaves were made to toil while others lived a life of leisure.  Any slave who rebels can be used as an example for the others, we can see this in the meetings of the KKK and in the crucifixion of the Spartacan rebels. One is offered a choice: either a status quo in which one group lives as if the community was founded for its exclusive benefit, or brutal violent death, whether by starvation or by the crucifix or some other torture.  The choice now is the same as it has always been, so long as ‘civilization’ has existed, acceptance of privilege or death.  This is the logic of death.  The logic of death is the means by which the master perpetuates himself.  When such a logic comes into existence in an oligarchic society, it necessarily comes into a double existence; there arises an active logic of death among the few and a passive logic of death among the many.  If the passive version of this logic is disseminated throughout the minds of the exploited, then herding them will be easy.  This logic can backfire in the face of privilege when a group of people such as today’s terrorists are not afraid to die, that is when they appropriate the active logic of death.  In this case we see the logic of death is not the inherent possession of any particular group but can be employed by any group that desires to employ it.  We can see a basic contradiction in this type of logic, if all of the slaves rebelled then the masters would have to kill them all, then there would be no more people to do the work, and the masters would no longer be masters they would become toilers.  In the case of a set of insurgents who would master the exploiter by way of the logic of death, it is crucial that they do not come to believe said logic to be sufficient for the time following the expropriation of the exploiter. 

     If one finds the appropriation of this logic politically necessary it must operate side by side with the development of another sort of logic.  This is the case because of the specific social conditions under which the logic of death comes into presence; it comes to be as a result of the need to keep slaves, the need for some to live as humans and reduce others of the same biological species to the status of a standing reserve.  So, in the struggle against a group of people who believe in the principle of death one will often find that they must perish by their own medicine, but one must at the same time be elaborating a logic of life by which affairs should be regulated after the struggle displaces the main centers of the former regime.  Thus, the appropriation of the logic of death comes about in a different field of social force than the emergence of the logic of death, and it leads to a different outcome; it arises from the desire to destroy privilege and oligarchy, and to establish equality. If a logic of life is not elaborated and pursued with vigor then one sees a relapse into privilege, where the social conditions for the emergence return again, and displace the conditions of appropriation.  We can see two examples of this need for a counterforce within the counter oligarchic organization at work.  First, if we consider the recent work of the ELZN in Mexico we see the development of an army side by side with the development of a network of civil society, which has as its goal the subordination of the logic of death and combat to the logic of life and cooperation.  Second if we look to art, we can see in the film V for Vendetta the main character V after he has set up the events necessary for the overthrow of the neo-fascist regime, must efface himself and put the reigns of power in other hands.  His is a logic of death, of revenge inflicted on the regnant oligarchs, or out doing them at their own game, spectacular violence and intimidation.    

     Thus, as we can infer from the preceding paragraphs, an absolute logic of death is suicidal, it can only exist in our political life in qualified form.  The unqualified form is the form in which this type of logic existed in pre-historic times such as are discussed in the Genealogy of the Moral Sensations, the time when the infliction of cruelty was a means by which human beings imposed their wills on the bodies of others thus creating in them a memory.  In this period inflicting pain on another was pleasurable and it was done with no qualms whatsoever. In this period we have the cultivation of a signal reaction such as is discussed by General Semanticists, a direct visceral reaction. The least qualified form is the form in which the Roman Empire exercised this power when it was thought to be politically expedient to crucify a few hundred slaves or feed them to wild beasts in order to pacify the others.  In this case the logic of death meets the symbolic logic of hegemony half way, with death remaining the dominant term. The spectacle of public death is an exemplification of the means by which the society is organized. In that era that sort of thing was done to remind people of the power behind a codified written law, the ancient prerogatives that formed the pyramid of classical society.

      However, this logic of death can exist in a more qualified, more sublimated way such as that discussed by Foucault or Kafka where a convicted malefactor is publicly tortured and killed, where his body is made to signify his crime, or the eternity of the law. In this case transgression is made to signify agony, and death is not the focal point of the exercise, the focus is displaced from the corpse onto the living body from which a signification is forced manually. The moment which calls most urgently to the attention is    the process of torture a methodical extraction of as much pain from the still living body as possible in real time before an audience. Death in this instance is the mercy of the law a distinctively Christian invention, the body subjected to the most inhuman types of spectacular abuse and vivisection is in the end made to signify the ultimate beneficence of that in whose name it is so frightfully disfigured.  A yet more sublimated form is the one practiced in many countries today, it is the prison form, in which the disobedient are not killed, they are made to go away in other ways. The one who does not obey the law is confined, kept out of the society in a jail somewhere behind walls bars and cameras.  Thus, the death that was once so present for all to see in Roman times, the slave hanging and decomposing on the wooden ‘T’ is transfigured into an absence which signifies death rather than exemplifying it.  Even when people are executed it is no longer such a public matter, only a small number of people are permitted to view the event, and it is done in such a way as to minimize the type of impact that such an event would be expected to maximize in other eras.