Tuesday, April 03, 2007

I’d err on the side of Nancy on the question of law

Kenneth, thanks for your insights. Language & Death is my favorite work by Agamben. It sets the stage for everything that follows, for better or for worse, and what you say - “with its emphasis on the constitutive force of negativity and absence…[it’s] a better effort at thinking a community without communion than the ‘whatever’ of Coming Community” - is accurate, I think. Which is one of the reasons Coming Community is such a disappointment for me. I think the experimentum linguae, the pure event of language as such, could have been worked into a robust theory of community, I think a flat yet differentiated/distributed ontologico-political community is possible with that notion as (negative) ground. But Agamben is highly allusive on this point, as we see in “Whatever,” and his attention quickly turns to criticism rather than completing the vision of community still latent in Language & Death.
His criticism is likely just as necessary as completing that vision, in the grand scheme of things; maybe I’m just impatient. You are probably spot-on regarding taking Agamben seriously - I find his thinking on law, as we find it in State of Exception (the notion that the law will be “used” as an old child’s toy, pure gesturality or Gelassenheit, in the to-come) somewhat naive, and cannot but take it with a grain of salt. But that doesn’t mean I think it’s without merit - I think it’s possible to make a constructive use out of his legal theory, but I don’t think public law is where I’d locate that possibility. I’d like to see some scholarship on Agamben and contract (or tort) law, the conventionally “private” law fields. This is where all the action happens. The “capillaries” of the legal system.
One other thing - while Levinas does lack interest in the juridical order just about wholesale (there are scattered thoughts on this in his Talmudic work, though), I don’t think the same is true for Nancy at all. In fact, I think Nancy has a mature and meritorious theory of law, even if he develops it obliquely. The texts of The Birth to Presence are important here. I’d err on the side of Nancy on the question of law in the context of the community problem. But maybe that’s just me. Kyle said this on April 1st, 2007 at 2:58 pm
Can you be a bit more specific about where in Birth of Presence I should look? It’s been a few years since I cracked that particular book - unlike Finite Thinking and Singular Plural, which I tend to visit often - and I read it in a different frame of mind and a different context to the one we’re discussing now, so any roadmap you’d care to provide would be mighty helpful to me.
As for the Agamben question, I do agree that some work on tort law might be rather interesting. Maybe a combination of Agamben and the little known Lon Fuller - could be fascinating. But Agamben is trying to extend Foucault’s thinking about governmentality and biopolitics, so he’s obviously going to focus on a different order of the law, and I think it’s a good focus, all things considered, if only because offers a more robust way of thinking juridicality than does Foucault, at least in my opinion.
I am curious, assuming Sinthome doesn’t mind the progressing tangent, what you think about Agamben’s essay on Plato in Potentialities, which also gets back to this issue of the something of language that makes possible a community, though it does so somewhat obliquely…Kenneth Rufo said this on April 1st, 2007 at 5:56 pm
Regarding Nancy, I was thinking specifically of the “Abandoned Being” essay, which is pretty famous. But I like to link that one to the “Heart of Things” one and read it in light of the former.
You know, Foucault was really influential for the American strand of critical legal studies (now largely defunct), especially Duncan Kennedy (see his “Stakes of Law” essay - everything he wrote, basically, is available on duncankennedy.com). But his commitment is to a neo-Marxist school, so Foucault is always sort of marginalized in his thinking. Agamben is a resource that has not been tapped in this realm, though he is beginning to catch on (as is Badiou - he’s speaking at Cardozo Law later this year). Much more so than Lon Fuller, however, are Kennedy and the other crits relevant for thinking American jurisprudential problems with Agamben. Come to think of it, I’m not sure how I’d envision a Fuller/Agamben interface. (And Fuller is not little known, at least within legal circles. I’m not sure of your background, so perhaps you meant to indicate a different discursive arena than the legal.)
Oh, I’m in total agreement with you regarding this statement: …I think it’s a good focus, all things considered, if only because [it] offers a more robust way of thinking juridicality than does Foucault…. Foucault’s thinking on governance requires some serious unpacking. There’s a rather mediocre book, though praiseworthy in its attempt, that tries to do this. Foucault & Law: Toward a Sociology of Law as Governance, is the title if I recall correctly. I don’t particularly endorse this, though.
Presumably you’re referring, in the last paragraph of your post, to the essay “The Idea of Language”? Plato and the experimentum linguae are pervasive themes in Potentialities, especially the first section, but this is most direct. In any event, everything in that book is fantastic. This is Agamben at his finest, in my opinion - this is the thinker we met in “On the Destruction of Experience” and Language & Death. Agamben is at pains in the “Idea” essay to demonstrate the presuppositionlessness of the bare “fact” of language and its elemental consistency, its envelopment of the actual. In that sense it’s not unrelated to Deleuze’s thinking of an immanent ontology - only here, Agamben wants to make language (qua experimentum linguae) the plane itself. The human occupies the space of, or rather is, the folding-machine of linguistic infolding (in more Deleuzo-Guattarian terms). And, interestingly, Agamben’s retrieval of the theme of Idea in this essay sort of automatically puts him into contact with Deleuze. Sinthome might want to chime in here, because my Deleuzean competence quickly extinguishes itself around this point.
I’d be happy to develop this dialogue further if you had a specific issue on that essay that you’d like to approach - it doesn’t seem like we’re very far apart on our readings of Agamben after all. Also, if you’ve a suggestion regarding Agamben/Fuller, I’d be interested to hear it. Kyle said this on April 1st, 2007 at 9:21 pm
My background is in rhetorical theory, from the communication perspective, not the composition one, and believe me when I say I would be terribly surprised if more than a handful of folks in my field have ever heard of Fuller, much less be able to talk about what he wrote. I ended up reading a bunch of him recently for entirely random reasons, and found his focus on contract law rather fascinating, and so mentioned his name both as a result of my recent excursion into your more familiar waters and because I like the idea that contract law is inherently interactional. It seems to me that there’s a way to link up Agamben’s discussion of the profane and the open into this interactional realm and in to the binding force of contract (or tort) law that would move away from claims based on property, appropriation, damage, etc. This is a guess on my part, of course: the rest of my family (parents and sister), and my best friend since like 2nd grade, are all attorneys or magistrates now, and perhaps for that reason, my interest in the law has been what I can only call “incidental.” *grin*
And indeed, “The Idea of Language” was what I had in mind. I think the bare fact of language, it’s communication of its own being, as language, offers at least one model of thinking the whatever of community, in the sense that community always communicates its own potential, even if that potential remains insubstantial. Of course, this is also where I find Levinas most valuable, in that the call of the other, the interruptive force of the face of the other, is what makes known this potential relationship as an ethical question rather than an ontological one, which is precisely the danger I see in Agamben’s rather awkward coming community.
To me the perfect blend can be found, in all places, in V for Vendetta, during the scenes of torture and imprisonment, when Evey receives the letters that V himself had once received, and they read something like: I do not know you, I have never met you, and yet there is something about you that make me know that I love you. It’s far more elegant in the film, but there is in that moment a synthesis of Agamben’s form of life with Levinas’ preontological caress. Can you elaborate some on the Kennedy writings your referencing? I might enjoy adding them to my list of casual reading :) Kenneth Rufo said this on April 1st, 2007 at 10:47 pm

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