Reading Luther: law, modernity, and psychoanalysis
Law, Modernity, and Psychoanalysis
After eight years my release day came. . . . We were given our sealed files, some small change and our tickets to Sydney. After many hours the train finally pulled in at Central Station and I walked into my new life, the last words of Mr Worthington still beating in my brain: ‘Remember, 33, black people are the scum of the earth.’
(Simon, Montgomerie, and Tuscano 2009)
The Invitation of Fitzpatrick’s Mythology Of Modern Law
Bill Simon’s story of being an indigenous child in Australia in the middle of the twentieth century, stolen from his parents’ home by state officials in New South Wales at age ten and incarcerated for eight years in a ‘boys home’ in which each boy was a number, beaten, humiliated, and emotionally abused, has added to my questions about how to research and write law in ways that seek to understand law’s role in institutional racism and its supports in everyday racism. The gratuitous insult of Mr Worthington, employed by the Kinchela Boys Home to care for indigenous children, is both strange and ordinary.
My story here is one of reflecting upon ‘reading modern law’ in a way that reveals methods and rationales and also one of acknowledging how the work of Peter Fitzpatrick has contributed to my reading of modern law. My research has a focus on power and money, sexism, racism, and colonialism. Trying to understand the legal and cultural supports of racism remains its focus. Ian Duncanson’s early historical critique of legal theory had pointed to the worlds of science, history, and politics within which contemporary jurisprudence seemed embedded. The ‘legitimacy and validity’ of law were ‘a kind of gestalt ’ (Duncanson 1984: 159), and in jurisprudence, law became ‘a séance of self-designating officials, gazing at a space and materializing a supreme rule’ (Duncanson 1982: 18). The languages of Irigaray (1985) and Spivak (1989) on embodiment and power opened up the intellectual histories of the gestalt and the séance, in one form or another (Grbich 1992).
The 1970 English translation of Foucault’s The Order of Things drew many English-speaking Anglo academics into researching the poetic forms and pictures within which one lived and breathed the disciplinary relations of the human sciences. Biology, economics, and the sciences of language were tracked by Foucault back from their heydays in nineteenth-century facticities and positive epistemologies, to their eighteenth-century lives in the European Enlightenment concerns with life, labour, and language. In Foucault’s consummate creation, and dismantling, of man as an ‘analytic of finitude’, as a ‘strange empirico- transcendental doublet’, the research bearings of the Anglo academic community changed. Foucault (1970: 203) had led us through early modern philology, grammars, taxonomies, natural sciences, and wealth sciences, and had proposed that we could understand the domain of wealth as being like a domain of words. Order in the domain of wealth had the same mode of being as the order of representation as manifested by words. Theories of money acted like functions of language: there were moments in each of ‘attribution, articulation, designation, derivation’. Foucault linked the theory of money and the theory of value with a general grammar (ibid.: 73). Money and value were both sciences of ‘signs that authorize exchange and permit the establishment of equivalency between men’s needs and desires’, and in his ‘general grammar’ there flourished ‘the science of signs by means of which men group together their individual perceptions and pattern the continuous flow of their thoughts’ (ibid.: 73). Foucault ventured tentatively into the order of things in psychoanalysis, preferring to stop short with mention of Freud’s achievements in Totem and Taboo, of bringing psychoanalysis and ethnology into a common field, and the establishment of the possibility of ‘a discourse that could move from one to the other without discontinuity, the double articulation of the history of individuals upon the unconscious of culture, and of the historicity of those cultures upon the unconscious of individuals’ (ibid.: 379). Foucault stopped short at that point of recognizing that as man ‘has killed God, it is he himself who must answer for his own finitude: but since it is in the death of God that he speaks, thinks, and exists, his murder itself is doomed to die’. He brings us to Nietzsche and ‘the explosion of man’s face in laughter, and the return of masks’ (ibid.: 385).
In Peter Fitzpatrick’s writing in The Mythology of Modern Law (1992), Foucault’s picturing of the character and order of representation was taken up with a focus on law’s own jurisprudential prehistory, law’s archive, law’s archaeology. Peter’s questions were of modernity, and of law as a kind of mythology, a mythology of Genesis in which a creationist God of the Hebrews makes things and man with names, and dwells within the modern self as an origin story of law. Peter’s research sought to ‘subvert Western rationalities from within by heightening the contradictions and suppressions involved in their construction . . . [in] an attempt at internal decolonization’ (ibid.: 13–14). Following his questions and methods, I began to ask, what is the character of this God, which dwells as a colonizer within, and who or what aspect of ourselves has this God colonized? Peter located his study of modern law as having mythic foundations in a focus upon objects of the modern world; where Enlightenment and modernity rejected mythology, it was returned, in Peter’s writing, in the occidental form of a kind of property whose absence was a sign of savagery: ‘where it is absent there can only be its precursors or savagery’ (ibid.: 50). He raised the paradox of the casting out of the savage from the Christian light by Enlightenment belief, and Enlightenment use of Judaeo-Christian mythologies to make the European identity and law in a comparison with what it was not: the savage. In Peter’s writing on the ‘mythic consolidation of modern law’ in nineteenth-century jurisprudence he never quite names the figure of the savage as the New Testament Christ, never quite names the subject of the analytic of finitude as the industrial labourer sacrificed on the altar of a national currency, and never quite names the universal industrial worker as the new savage of a financial colonialism as old as Luther. At this threshold my own research methodologies from Duncanson, Foucault, and Fitzpatrick ventured into those disciplinary boundaries of legal theory, political economy, property law, and poetics. In his Mod-ernism and the Grounds of Law, Peter brought ‘Freud’s alluring tale’ in Totem and Taboo (Freud 1990) into service ‘to situate the analysis of law’s grounds’ (Fitzpatrick 2001: 1). Critical legal theory in the Anglo world could no longer ignore how psychoanalysis might play a role in law’s story of authority, rule, and justice, or how the legal subject appeared to be gendered male and always accompanied by images of a feminized and abject other.
In that serendipitous way of most legal academic research, I found my research plans for a critique of taxation law during a ‘study leave’ programme in Edinburgh somewhat dampened on finding that the university library held no legal judgments from Australian courts. Those were the days before electronic archives. As my political economy of taxation had been developed upon Australian case law and readings of Foucault, a change of plan was needed. Walking past the First of May bookshop in Edinburgh, which was closing down, I was invited to take what I needed. So Marx became my new study leave programme for the next six months, and Marx’s ‘Revenue and Its Sources: Vulgar Political Economy’ (1972), with its focus on fetishisms, the fictions of capital and property, and the insights of Luther, became my research methodologies. I read for its poetics of generation. Marx, born a Jew and raised a Lutheran, named the revenue returns from financial property as fetishism, and as transubstantiation. He used the already critical language of his Lutheran upbringing in which the wine and bread of the Catholic Mass became the blood and body of Christ to theorize, or perhaps simply to describe, how the illusions of financial revenue remained aloft, how one substance was transformed into another (ibid.: 494). For Lutherans, and other Protestants, the wine and bread were instead memorials of Christ’s sacrifice rather than matter as if magically transformed.
Teaching and researching revenue law in Australia in the 1980s made the gendered archive of monetary discourse far too explicit for a woman not to pursue a critical legal methodology. Historically speaking, ‘hands are the father of wealth’ and ‘lands are the mother of wealth’ (Petty 1964:
68), provided one had an economy based on hands, or labour, and land. With the introduction of a monetary ‘factor of production’, Marx argued that we now inhabit a ‘bewitched, distorted and upside-down world haunted by Monsieur Le Capital and Madame La Terre’ (1981: 969).1 This gendered archive was too explicit, in that indexes of taxation textbooks, case collections, professional commentaries, and even indexes of scholarly articles contained an entry named ‘husband and wife’. It usually included every conceivable area of taxation law and practice, being a listing of any instance in a text in which the words ‘husband and wife’ were used. While it was obvious that the word ‘wife’ was the sign that meant a practice of a male person of transferring a monetary sum to a person presumed incapable of having any earning capacity (i.e. a wife), it was not so obvious to any woman reading these texts why the numerous kinds of capacities and activities described in these cases should be read so clearly as meaning an avoidance of tax on the part of a ‘husband’, as meaning that her labour in a business partnership was insignificant. Why was a female person a sign of ‘nothing’, a limit to his activities, a limit that facilitated the calculation of what he ‘really’ did? How did her labour signal only the presence of him (Grbich 1987)? And also, how did the figure of the taxpayer come to complement, or is it supplement, the fantastic exploits of Monsieur Le Capital? Did Monsieur always appear on the page with the taxpayer whose labour signified suffering, or would any suffering figure complement the exploits of Monsieur? Nineteenth-century economists were content to pair Monsieur with Crusoe’s Friday, as labourer, as a person of race. Crusoe was an eighteenth-century creation of Defoe in which Monsieur as Crusoe traversed the globe, travelling from his plantations in South America to England and back. The closer one reads political economy to the time of Luther, the more Christ-like becomes the suffering of the companion to his maker. These figures become both more godly, in a Christology of suffering and redemption, of gifts, death, longing, and salvation; and also more explicitly a coded form of the imitation of God’s power to write the names of things, and to create life and things with words. In early modern biblical poetics one moves easily between Christ as the Word, and language as a practice of coining things.
The ‘wife’ as the sign of ‘nothing’ limiting the pursuits of the ‘husband’ of the twentieth-century tax lawyers was a ‘black’ in the discourse of nineteenth-century political economists, who used the story of Crusoe and Friday to explain the particular and higher value of a white man’s labour, or rather why a managerial type had a labour that returned a higher revenue than a worker’s. In Luther’s early-sixteenth-century Treatise on Good Works, any person who took more than his labour fairly warranted was figured as a Jew. Luther had three ‘special, distinct works all rulers might do in our times’: ‘first, to make an end of the horrible gluttony and drunkenness’ because of its expense; ‘[s]econdly, to forbid the excessive cost of clothing, whereby so much wealth is wasted, and yet only the world and the flesh are served’; and ‘[t]hirdly, to drive out the usurious buying of rent-charges, which in the whole world ruins, consumes and troubles all lands, peoples and cities through its cunning form, by which it appears not be usury, while in truth it is worse than usury, because men are not on their guard against it as against open usury’. Luther named these ‘the three Jews, as men say, who suck the whole world dry’ (1943b: 266–7). In Luther’s sixteenth-century writings the European wealthy are all Jews, who can only hope to give a good account of themselves to God by limiting their wealth-taking in relation to the returns of a ‘day labourer’. The peasant and his labour or suffering are to be brought into a calculation of the rightfulness of the returns due to the wealth-takers. Luther’s anti-Semitism in the Treatise on Good Works is symbolic in the sense that it repeats the narrative of the Jews as the killers of Christ; the wealth-takers of whatever religious beliefs are responsible for the ruination of the peasants.
Lacan (1992: 97) has placed Luther at the period in the early sixteenth century when ‘God’s eternal hatred of man’ was written about, and has ventured into how we might read the significance of these events in European and theological history within Freud’s theorization of a European trauma. Whether Freud adequately captured, or created, a mythological rendering of the death of the Old Man of the Mosaic texts in his Moses and Monotheism is given considerable focus in Lacanian psychoanalysis (ibid.: 181). How the killing off of Moses, the father figure of the Mosaic Law in the Old Testament of the Bible, was repeated in the Christologies of European Protestantism in the focus on Christ’s death can be read as the historical form of Freud’s mythological Totem and Taboo. In Freud’s eyes, Moses far surpassed what he had hoped to achieve in Totem, and of course he gave a fantastical form to this cultural development, or malaise, which he so subtly traced in Civilization and Its Discontents. Freud hoped that his Moses story, with its two Moses, could provide the cultural tools to divide and alienate some parts of the cultural malaise and enhance other, more creative parts. Lacan’s readings of Freud’s fictions, his European mythologies, give a method for reading the other ways in which God has been historically killed off, and sublimated. The way in which early modern European cultural practices were understood as killing off God is in its infancy, so to speak, in law. It has been culturally buried, erased, and repressed. Luther gives us some access to these ways in which God was understood as being killed off, and how he imagined life could nevertheless go on.