The themes introduced: law, the subject, sovereignty and certainty

The Themes Introduced

Law, the Subject, Sovereignty and Certainty


We live in the twentieth and twenty-first centuries in times like those which Thomas Paine described as trying men’s souls.1 Our world is one of perpetual emergency, pointless wars, invasions justified by deceptions and accompanied by imprisonment without trial and torture. The literature is large and growing. Paine was writing during the American Revolution, a period in which all political categories, law, the subject of politics and empire were undergoing the changes outlined in the preface, and the resistances to them. The categories of political, including imperial, practice, subjectivity and law were interwoven. And, to continue the spinning metaphor, important sub-threads will become apparent. The British Empire, as Paine was writing, had already entered what many historians have seen as its second, and more authoritarian phase. One inquires, historically, in a kind of dialectic. We find our object inevitably from a perspective, with particular motivations. Yet if we are narrativists of an open, but disciplinary kind rather than writers of myths and legends, the object of inquiry assumes not simply its own integrity, as well as a lesson for ourselves. In Paine’s world we find much of relevance to our own, if we are looking for it.

After the end of the Seven Years’ War, in 1763, the empire of Great Britain was increasingly, if unrealistically seen as one of conquest and occupation, by the inept new ministries which took office shortly after the accession of George III. There were, of course, slaves in British America, and Britain was a major, perhaps the major trafficker in Africans destined to labor in the Americas. But white men, at least, had permitted themselves to believe that in the Atlantic world, there existed only free-born Englishmen, loyal subjects of the Crown, but each more or less selfgoverning through their legislatures and courts, whether those institutions were in Britain, Massachusetts, Pennsylvania, the Caribbean or elsewhere. On the one hand, Great Britain’s invincibility seemed to have been proved everywhere on the globe, from Plessey in Bengal, to Quebec in Canada. Yet this is the material from which paranoia is constructed. Success had been achieved, but as constitutional law at that time required, the new monarchy necessitated a new government, one, of course confining the monarch, but at the same time requiring his “confidence”, as it was put. Lord Chatham, Pitt the Elder, an experienced statesman who had overseen the Seven Years’ War, was replaced by, for the most part, men of little experience and less acumen.

The threat from the defeated European Catholic powers, but not only them, as perceived in London by George’s new ministries, seemed to require a consolidation of imperial government. India provided a model. Thanks to Sir Robert, later, Lord Clive, millions of Indians had fallen under British rule – by the East India Company, to be sure, but the Company was chartered under English law and was therefore technically subordinate to the Westminster Parliament.2

The environment of the free-born Englishman, heir to the liberties of person and property achieved in the seventeenth century, began to disintegrate, to appear to be a danger, again from a London perspective, a London of new ministries under the new king. Colonists and colonial subjects, American, Indian or West Indian, now began to be considered, from London, as naturally subordinate to Westminster sovereignty. Sub-continental Indians were clearly not suited to self-government, so why should Americans demand it for themselves? There was certainly emergency, as Paine wrote: London waited for resurgence of French and, to a degree, Spanish power.

The Americans, whom Paine hoped by his writing to help constitute as united, faced a bleak defeat until the successful intervention of France and Spain on their behalf. Ironically, this intervention was an outcome that had led London into its vigorous assertion of Westminster sovereignty in the first place. Another way of looking at events is to see, as a number of contemporaries did, the first empire as not really an empire at all.3 Many Scots, English Whigs, and prominent Americans later associated with the move to independence, saw a confederation whose center of gravity would in time move to the larger land. Many British rulers after 1763, on the contrary, began to wish for a more centralized form of empire. A feature of empire proper, I shall argue, or at least empire in the European tradition, is constant paranoia. If the possession it represents – whether outright occupation or dominance in the form of economic exploitation – is not threatened with seizure from without, it is faced with disintegration from independence movements within. Only a strong sovereign can withstand the constant emergency. It is where s/he emerges from in the form of strong executive government and lack of constitutional or civic restraints. Even in the United States, where, as we shall see, Hannah Arendt considers sovereignty in the old sense to have been abolished with the repairs to the 1688 Whig constitution effected by the new Republic in the 1780s, some modern commentators have warned of the dangers of overweening central executive power. The best-crafted documents have, as we know from recent memory, not protected us from executive action sanctioning war and torture in “civilized” countries, or at their behest.

White governments in many parts of the world have supported, adopted or reverted to what I have elsewhere termed meta-legal sovereignty, an office of the law, but somehow not within the law. I see this idea as bogus and implausible from a Whig/liberal position, but also, of course dangerous. A Hobbesian/Benthamite sovereign that is antecedent to the law, whose will the law is, should, I will argue, be regarded as a preposterous barbarity, a lunacy for which only a person who would buy the Eiffel Tower from a man in a pub would fall. But we saw apparently intelligent prime ministers and presidents lining up to do the precise equivalent of that prior to Gulf War II and the faltering intervention in Afghanistan. It is this time that tries men’s souls in which I write. I have written in this book about the English subject – had I been Canadian, Australian, or US-American, I would no doubt have written about those subjects and perhaps much the same could have been said about any of them. The English subject, to put it in a simplistic way that I shall later qualify, exists as a culturally constituted artifact – a product, as Locke puts it, of education – and as a legal subject, a being-subject, as Bentham sees it, of the will of the sovereign. Neither constitution can be separated, but as will be clear, my view is that a pre-domination of the subject by the will of the sovereign allows least scope for participation and change. Nor does it, I believe, permit a progressive concept of legality.

On the issue of times that try men’s souls, I can cite Matthew Sharpe:

The only antidote for the increasing framing of law and politics in the vague and anxiety-ridden terms of “national security”, “enemies”, and “unusual and threatening circumstances” … will have to start with continuing vocal opposition to today’s executive exceptionalism. But it will not end without the vigorous promotion of public education, the defense of an open, free (which means not monopolized) media and the encouragement of active participation at every level of the political process of citizens in the economic and political decisions that affect their lives.4

The implication, in the above quotation is that “difficult times” can, as we have seen, erode democratic political practice and associated civil liberties with alarming rapidity and completeness unless a new understanding is learned about the subject of politics and its relation to social order. Anglophone jurisdictions are familiar with “emergencies” that render what would otherwise be unacceptable and systematic abuses of government power apparently acceptable: in the case of the United Kingdom one thinks of Ireland, but also, over a long period of time the colonies – rebellions throughout the British Empire and in US territories such as the Philippines, or during world wars. The fond hope is that these are geographically or temporally contained, “exceptions” in their way, resiled from when the emergency is over. The burden of Sharpe’s article and other writings is that citizens of so-called liberal democracies (whose colonialist practices, some would say, have invited reprisals from exploited regions, or at least made otherwise unacceptable violent responses appear justifiable to the perpetrators) must reassess their relations with executive governments only too eager to use the vaguely-defined “war on terror” to extend their control domestically. The role of citizen, or the ordered subject of liberal democracy, is a learned role, in need of repeated rehearsal, as Sharpe suggests.

Legality and Politics in “Exceptional Times”

What I trace in my book is a legality which has been taught not to see the exceptional times in which it exists, or the possibility of alternative careers of education and law in the production of this ordered subject. The careers of learning and legislating are entwined, although they frequently present profoundly gendered alternatives when taken to extremes – empires need a strong sovereign – the manly Westminster legislators and Viceroys of an earlier colonialism, or the stereotypical he-man US Presidents in our own era.5 The teaching depicted in Dickens’ Hard Times would have to figure as a stern manly institution, a lower orders’ version of Dr Thomas Arnold’s reformed mid-Victorian Rugby.6 In the period referred to in my thesis, sovereign order, order by legislation, appears just as the woodcut from the first edition of Leviathan pictures the sovereign author of legality, the final word of what is to be obeyed as the sole condition of order, as a man, carefully bounded and composed of smaller men who have, in their various degrees, ceded to him their rights. Learning the arts of co-operation, a curiosity-led as well as prudential route to the management of diversity, and what I have termed “agreeable disagreement”, has been an important source of social order, but one at different times characterized as effete, effeminate, and definitely hostile to the project of empire.

As Sharpe observes in the article from which the above quotation is taken, a “naïve faith in the rule of law” is not sufficient to preserve democratic politics in times like the present, times that can be designated by those who control the law, exceptional. Indeed, it is the possibility of that control, vested in the practical imagining of law, that constitutes one of the problems. The “war on terror” simply intensifies what has been implicit since at least the time of Thomas Hobbes, to cite a conveniently succinct and schematic writer. Alternately demonized for recommending tyranny and lionized for promoting a template for the restoration of order, Hobbes was for the most part simply emphasizing to a largely skeptical audience, and updating the benefits of Absolutist rule. If peace, prosperity and “security” are to be made stable, then it seems that law is necessarily the primary instrument in this tradition, and the most tempting and easily understood model of law has been seen as a body of rules ultimately traceable to a primordial sovereign. This office of sovereign may be designated by, but is, according to many writers, ultimately beyond, the law.

Not all writers, I observed, have been happy with the abstract template designed by Hobbes. As Sharpe warns, it vests power in a place, in the end, uncontrolled. The template, suitably airbrushed, is, or has become, a lawyer’s model, one which has come to dominate political thinking. As a consequence, in the minds of many who are skeptical of what is colloquially regarded as “spin”, in other words, propaganda, “the enemy within” is not principally the infiltrated terrorist, but an executive branch of government, first unleashed to calculate the public’s best interests and then to design draconian countermeasures to any threat to those interests.

I shall argue that, undeniably, laws perform invaluable technical work – in the disposition of property and populations, for example; but that their elevation to a more fundamental status on the sovereignty model of their operation is associated with empire, the government of subordinate peoples, uncontrolled and dangerous. Lawyers can, and do, argue that in modern liberal democracies, it is the people who elect legislatures, and it is elected governments who, one way or another, appoint judges. But this is not enough. We shall see the metaphysics that underlies even that most liberal of twentieth century jurisprudential writers, HLA Hart, concerning the validity of laws: the recognizing laws as valid by “officials and certain private persons”. We can guess which private persons; the officials are hidden even from the elected legislators. In a recent conspiracy which might have come from a Robert Ludlum thriller, some of them led several liberal democracies into a war declared illegal by an international majority, that, while merely a catastrophe, could have been a cataclysm, and may yet provoke one.7 The “ungovernable people” of England whom I shall refer to – Braudel writes of obdurate peasants in France, too – the crowd, whose “moral economy” governed peaceful resistance, did not believe in the authority of law; they believed in examining its substance for its moral force and its use, for them. I will later qualify Hume’s remark that government authority is based on opinion, but it has enough truth for the moment. If we opine that law is based on sovereign authority, then it will be, we will have made it so. Is that what we want? Perhaps some of us do. We have, on the other hand, examples of imagining subjects differently, I shall suggest, examples from the indubitably undemocratic time of post-1688 England, when its rulers sought a glue to hold the social order in place; but their solution may help promote ideas of democratic practice in the present. I shall argue that the law of the post-Benthamite lawyers, which has recently dominated legal theory, is a product of empire.

The first British Empire, as many term it, was anomalous. Like post-Revolutionary England (1688), whilst externally predatory, it became a confederation of propertied white men who gave government to themselves. Their property included African slaves and land stolen from indigenous peoples, but, like post-Revolutionary England more generally, it contained the political germ of something better. I shall explore this more fully later in relation to Great Britain. In Britain’s second empire, which was not only rule over and the exploitation of brown people, but increasingly over “natives” at home – the working class, women – the doctrine of sovereignty increasingly informed discourse about law.

The twelfth century common law writ of Habeas Corpus, which many commentators have noted in connection with the ideal of “the rule of law”, came a little later after the initial revolution, to give legal form and technical application to a preceding political commitment to informed adversarial processes among equals, but it was an effect, never that commitment itself, an inscription of the political idea behind it, which is implicit in the now-expanded idea of “the free man”. The constitution, similarly an effect, whether the “balanced” Whig constitution of eighteenth century Great Britain or the document reflecting the transformation of colonies into states in America, and their subsequent relinquishing of independent status in a new union, can be the basis of laws, I suggest, to the extent that subjects work to learn who they might be under it. My focus is not North American history, but, to repeat, I suspect that behind the transition of the “free-born Englishman”, the white male property-owner of the Pennsylvania colony, say, to citizen under the new constitution of the United States, was a process of learning, reflected in the advances made by the new system over its Whig model, which seemed to Americans as they re-made themselves, to have failed in the continuation of its aspiration of balancing government power. In the British case itself, I shall suggest that a great deal of learning, negotiation, and compromise underwrote the choreography of the “English” subject. If that learning project ultimately failed, with the temptations of empire and conquest, it could scarcely with equal safety to the public be replaced by that insubstantial and insecure being, the subject of law. So I will argue, differentiating between what, for shorthand purposes I have sometimes called legislation, an abrupt exercise of power; and education, which implies learning, the participation of its subjects.

But we must not – this is Sharpe’s message as I read it – allow lawyers to run away with the law. However good their intentions, their model of law can literally court disaster when taken beyond its technical remit. Edmund Burke, with his disdain for abstract and universal concepts – the expression, “the rights of man” was in sights at the time of his writing – in effect divided law as he saw it in the Great Britain of the late eighteenth century, into two. One was the rules and techniques beloved of the “pettifoggers” (a term preceding Burke and not actually used by him). This resembles the model of law about whose efficacy in safeguarding freedom and democracy Sharpe has reservations and I shall say more about it in due course. The putting into effect of such a model of law is useful in the routine administration of commerce and property, the disposition of criminal cases and the like, but, if Burke’s conviction of the necessary dispersal of power were to be realized, it would need to be subject to the scrutiny of his other division of legality. Here is the broader, more constitutionally contextualized landscape of changing but socially ordered being. This resembles the recommendations contained in the last part of the quotation from Sharpe. To understand them it is useful to notice Burke’s insistence on the importance of the history and changing customs and expectations of particular communities. He considered that, although there had been many changes in the English and, as it became, British underpinnings to constitutional and, based on this, legal practice, a balance still existed and ought to exist, between the various operations of government. Burke was profoundly not democratic, but along with the task of blending continuity with customary expectations of change, he felt that the application of the pettifoggers’ rules required mediation by a conscientious regard for the public good. This is an appeal to the possible “grandeur of law”, which, he writes, cannot be left to lawyers.

The priority apparently given to “law” here must not, then, be taken to indicate its priority in the argument that follows. Law is an imperatival language practice that subjects learn. And they may reject its presumptions of ultimate authority because those subjects are also speakers of other languages, in the examples I look at, those of empire and those of Englishness. Law is a language which changes and which also brings about change. The danger to which Sharpe alludes is the belief that sovereign authority seems to subvert moral responsibility and diminish the power and purchase of ethical evaluation.

I shall claim no essential nature for any of the practices to which I have adverted, law, the subject and the empire. I have sometimes referred to them as characters, since they appear in an unfolding drama in constant dialog with each other, not reciting a given script, to be sure, but confined at any given moment within certain limitations on what it is possible to say. They each exist, for the book, as interacting, and changing with every interaction, as I shall explain. The thread that joins these shifting identities is, for my purposes,8 the effort discernible no doubt in many societies and the subjects of them, to establish certainty. The law, unquestionably in many western conceptions, aims for certainty, albeit with the paradoxical ambition to be open to change in response to changing social circumstances.9

Thus, the subject, English, French, Australian, or any other, intends, by this identification, to establish itself as precisely its certain self. Freud, like David Hume before him, and many more before that, deny the subject’s capacity to know itself, deny its stability. For practical purposes, it seems that there must be an I who knows. But this involves two assumptions – a knowable subject and a knowable object – both of which, as I shall suggest later, are not entirely secure. Finally, among the topics in my title, empire, the close ally of sovereignty of the strong and meta-legal kind, I shall suggest, is a changeable notion, particularly in its effects, what subjects understand it to be, and what effect it has at different times on who they are and how they consider it appropriate to act. It is worth adding, since “relativism” is a philosophical bête noir, that my own observation of a pervasive uncertainty does not imply the circular logic of “everything is uncertain” except the assertion that “everything is uncertain”. My refuge from circularity and contradiction is in Hume’s disclaimer concerning certainty: “for my part, I do not know”.

Having said all that, it is necessary to provide a few initially oversimplifications as entry points into the book. The other quality, aside from certainty, sought by the communities I am concerned with, is order. How may subjects be constituted or reconstituted in such a way as to produce order? In my book, I have noticed two processes of subjectification, the making of subjects. For want of better terms, I have, as I remarked, called them “education” and “legislation”. They are not, of course discrete practices, but the writers I look at prefer to emphasize one aspect of subjectification at particular moments as if they were discrete. Some jurists – I notice Jeremy Bentham and John Austin, for example – see order as depending especially on there being in a complex society, a sovereign rule-maker to whom, by subjecting ourselves and becoming law-abiding, we create and maintain a coherent and cohesive community where there would otherwise be insecurity and chaos.

Other, largely not, or not primarily juristic, writers (it is difficult to categorize writers such as the early to mid-nineteenth century writer, administrator and politician, TB Macaulay) prefer to stress the role of acculturation. If the British middle classes lifted their intellectual horizons to embrace loftier aspects of civilization than learning to be good grocers or competent commercial travelers, then according to Matthew Arnold in the later Victorian era, the “brawling” working classes could in turn learn from them about civilized behavior. The wider the right to vote spread, the more the commons seemed likely to have, not merely virtual but actual representation in the House of Commons, the more urgent their education appeared to many Victorian to become. The brawling that Arnold saw as endemic among the working class would cease only after appropriate civic instruction when all could aspire peacefully to “sweetness and light”. The midwife at the birth of these new “Englishmen” – the wise middle class exemplar and the dutiful working class pupil – was to be the detached intellectual. But Arnold, like others, imagined a civilized peace in which constructive learning and the existence of a strong state coexist and reinforce each other. I will return to the dangers of this, but also to the potential subversion of the strong state through constructive learning.

Later, I will indicate where I have found the insights of Jacques Lacan and Michel Foucault helpful as figures of the priority of learning. Lacan, in particular, provides, for my purposes, the model of a subject who, as a symbol-using human being, seeks guarantees that will ground the validity of the symbols s/he is using. The order of symbols has many guarantors, none of which exists, but in which, to avert chaos, the subject must place its trust. Second, for Lacan as I shall read him, the subject yearns for a lost belonging, and in this search finds substitutes in a multiplicity of social institutions. Foucault’s account of his early work illustrates the overlapping nature of the categories used here, education and legislation and the relations of power and truth, or knowledge. Commentators, especially in the 1980s, focused on Foucault’s remarks concerning power, and particularly on his refusal to oppose truth to power – which is usefully summarized in a 1976 lecture: “my problem is this: what rules of right are implemented by the relations of power in the production of discourses of truth?”10 As Ellen Messer-Davidow et al write, for Foucault, “‘Truth’ is not objective or socially independent, but a system of ordered procedures for the production, regulation, distribution, circulation and operation of statements”.11 Later, Foucault writes that his principal goal has been, not power per se, but the creation “of a history of the different modes by which, in our culture, human beings are made subjects”.12 He refers to three heuristic categories: those of “science”, which in their many manifestations objectify, say, the speaking, working, or socially changing subjects of linguistics, economics or history. “Dividing practices” distinguish the sick and the healthy, the sane and the insane, “the criminals and the ‘good boys’”:

Finally, I have sought to study – it is my current work – the way in which a human being turns him- or herself into a subject. For example, I have chosen the domain of sexuality – how men have learned to recognize them selves as subjects of “sexuality”.13

Foucault is drawing attention in this last passage, obviously not to a libertarian heaven in which we can all be whomever we want, but to a more participatory realm in which knowing who I am is clearly confined within the cultural horizons of what is given as a possibility to say and do and be available, but in his example of sexuality, the discursive activity observed is not a production line from which identically unreflective artifacts emerge.

I begin the next section of this chapter with Adam Smith, because as a moral philosopher, legal theorist and, as many believe, the inspiration for the economics of free-market capitalism, he occupies an apparently contradictory site. I have seen the enterprise of empire as something which is gendered as masculine, not because sovereign-emperors are men – imperial sovereignty is, after all an office rather than a person – but because of the codes within which gender normally operates. As will become clear from other writers, the masculine represents the qualities of strength, rationality and autonomy, whilst the qualities of weakness and irrationality, the need of supervision, are coded as effeminate.14 Toward empire, Smith is a skeptic: order is, for him, not so much a matter of the strong supervising the weak as a learned cultural project of participating agents and agencies. Commerce among those left free to engage in it is, for him more fruitful than global conquest and empire. Trade will, he thought, prosper when the desire for empire abates and, empirically, perhaps, the example of America vindicates his argument. Britain and the United States prospered more vigorously, with some blips, after the war of independence; commerce flourished in ways unpredicted under the later imperial regime. On the other hand, left completely to itself, in Smith’s view, commerce would oppress and undermine the conditions of its existence – this much some of his successors learned from his work (one can scarcely fail to interject that his successors on Wall Street and the City in later centuries were not good pupils). There is, then, if we follow him, a fundamental role for a cultural politics in the achievement of order in any society of which he was aware. Hobbes’ subject achieves order from potential chaos and meaninglessness only at the cost of conjuring a potential monster which is beyond restraint. Smith’s subject sees itself as a more participatory figure in the process of discovering who s/he is and what s/he must do, how s/he arrives at meanings for the social order of which s/he seems to be a part.

Legality as Relational and Contingent for Adam Smith

Adam Smith’s lectures on jurisprudence, theories concerning how law might be understood, delivered at the University of Glasgow in the later eighteenth century, were not published during his lifetime, but reconstructed from student notes and published posthumously. This was not because either Smith or his students considered legality to be an unimportant area of study, nor because they believed law to be insignificant in the regulation of society, but because Smith did not follow the linear, even teleological, methodology adopted by his successors in which law unfolds in the matrices of policy and the protocols of an internal logic of, as one twentieth century jurist put it, “law beyond law”. In other words, he did not believe that law could be grasped as an abstract structure, but only, and in this his thought resembled that of Edmund Burke, by reference to particular contexts and specific contents.

Nor was Smith concerned with the technical/professional dimension that would enable a student of law to advise or represent clients. His priorities seem clear. Like many of his fellow-Scots, as we shall see, he adopted a stadial but not a lineal theory of human social development. As a broad generalization, humans were seen to have existed socially as hunter-gatherers – modern historians render this formula as gatherer-hunters, since women in, for example, Australian and many African societies, fed their societies by sophisticated knowledge of the flora, whilst hunting for animal meat was a sporadic and often chancy male activity. People often then, for Smith, became herders, then agriculturalists and finally people of commerce. This was not, in the Scottish analysis, a progressivist or inevitabalist model. Societies did not invariably follow the stadial scheme the Scots identified, in their view. Their conviction here was later borne out by European observations of Australian Aboriginals, who were in contact with the subsistence agriculture of the Torres Straits islanders, and later with the knowledges of the fisher folk from present-day Indonesia, but found their own economy based on superb environmental knowledge more congenial.

Smith’s conviction, then, one that he shared with Blackstone and a number of others was that “the rules” lawyers deem essential to their craft do not have an internal logic that can be grasped as one might grasp the workings of a clock, or perhaps in more modern times, a computer program, set to a particular time, or with a particular purpose in mind, and thereafter determined by its design. The career of legality – something we shall return to – has to be seen as contingent, Smith insisted, on economies, politics, histories and social forms. The constitution of law depends – and I have followed the Scots here – upon the logics which these forces develop, hence the reason for noticing the relevance of empire, in my text, in England and, as the polity was to be named after the two Acts of Union, with Scotland in 1707, and with Ireland in 1801, the United Kingdom of Great Britain and Ireland. I return, in this text, to a preoccupation that has informed many of my publications in the past, that “law in context”, a slogan and now merely a cliché from the 1960s, is properly not “law and …”, “Law and History”, “Law and Literature” – which are, of course, good enough working titles generated by the law in context movement, as conferences and workshops began, and probably precariously, to inform academic law curricula. But law is best not understood as separate from that from which it proceeds. Conceptually better, if one wants to follow Smith’s direction, is rather “law in …”. This author qualified as a practitioner of law, “learned” from “teachers”, on courses about how to be a practitioner. Stupidly, certainly irresponsibly, perhaps even on occasion mendaciously, pretending that the intellectual study of law in isolation was a coherent program with an internal logic, academic law had long lost its way. Of course, the mechanic of social technologies must learn how to wield a spanner or its equivalents – the pettifogger is indispensable. One does not expect a disquisition on legal theory from the conveyancer or tax consultant to whom one consigns one’s affairs. But there is more to be said about social technology than technical proficiency.

The danger threatened by a stunted discipline of law – if one wants a practical demonstration other than the overbearing claims to executive sovereignty generated by the “war on terror” mentioned earlier, with its commitment to secret torture and extrajudicial incarcerations15 – is notorious from the famous “Nuremburg defense”, in which the Nazi leaders on trial for war crimes at the end of World War II attempted to absolve themselves of responsibility for their actions on the ground that they were complying with German law as it was according to Nazi promulgations in the period up to 1945.16 This literalist mindset is clearer still in Arendt’s account of the interrogation and trial of Eichmann in Jerusalem. Arendt’s title summarizes her conviction: Eichmann’s bureaucratic management of the Holocaust was an evil of the most banal kind. Eichmann was not, on her reading, a wicked or evil man. He just did his job without lifting his gaze toward the context or the consequences. Indeed, he apparently was disgusted by his brief encounter with the performance of liquidating people. But he had observed at the infamous Wannsee conference, he said, his superiors’ determination to decree that “inferior” peoples should be liquidated. High status civil service, Party, government and military officers were present, most of them far out-ranking Obersturmbanfuhrer Adolf Eichmann. To his interrogators in Jerusalem, Eichmann described this as his “Pontius Pilate moment”. Who was he, a cog in the machine, to question the direction the juggernaut was taking? Subsequently, he could apply his administrative expertise without the need to examine his conscience or examine the ethical implication of what he was doing. Tony Judt’s suggestion17 that, in imputing to Eichmann a failure to think, Arendt is accusing him of stupidity, misses the point. Of course, he thought, and of course he was not stupid. What Arendt is drawing attention to is his (and others’) willingness to surrender his ability to make moral choices for who knows what reasons – laziness, career opportunities, or the sheer willingness, which is perhaps more common than we would like to believe, to suspend moral judgment when there are others to assume responsibility.

This has been the effect of empire on the conceptualization and management of legality, to a greater or lesser degree, I shall argue. Colonies of quite recent memory, in British Kenya, the former Southern Rhodesia and apartheid-era South Africa, and contemporarily in Israeli-occupied Palestine simply assume the inferior nature of their subjected peoples.18 To suggest that African black people or Palestinian and Bedouin peoples are denied human rights, is to miss the point. Rather, such peoples were, and in the case of Palestine, are, seldom denied to be human, but are denied equal political membership of the polity in which they live or seek to live. This denial of political equality, enforced by legislative policies and compliant judiciaries, is reflected in the callous disregard for the suffering and death of the oppressed, deemed necessary for successful control and the maintenance of superiority in the “master race”. And, of course, it has further ramifications. Israeli soldiers, in one of Makdisi’s examples, taunt Arab children with provocations, electronically amplified, in Arabic – “Where are the dogs of Younis … Son of a bitch … Son of a whore … Your mother’s cunt” – to bring them within grenade range and then blow them up. Makdisi quotes Chris Hedges, New York Times reporter:

A percussion grenade explodes. The boys, most no more than ten or eleven years old, scatter. The soldiers shoot with silencers. The bullets from M16s tumble end over and through the children’s slight bodies. Later in the hospital I see the destruction: stomachs ripped out, gaping holes in limbs and torsos.19

The soldiers are doubtless exceeding their brief; but they have learned three things from the regime, as soldiers of colonial, or regimes of occupation often do. One is that since constitutional bureaucracies have little room for ethical niceties when it comes to colonialism or occupation, so, by implication, why should the military? They have learned that the victims were of no political consequence, second; and third that the inconsequential status of the people over whom the soldiers have been given power means that there is little that they, or their relatives or other “native” supporters can secure by means of remedy in the dominant legal system by virtue of its unconstrained contempt for them. Of course, dominated peoples do fight back, with suicide bombs and the comparatively light weapons at their disposal. But Arabs had from the first, in 1948, been outgunned and outnumbered by a foe convinced that Jews should have no “inhibitions” about ejecting “a large minority” from their homeland in order to secure the new Jewish state.20 Their resistance is ipso facto illegitimate: cet animal est mechant: quand on l’attaque, il se defend.

British Legality After the Second Empire

In the case of the British Empire – an institution, with the United States and France, supportive of Zionist ambitions and against the Palestinian cause from the outset – it has been suggested that brutality was less entrenched once the slave trade and then Caribbean slavery itself were made illegal in the early nineteenth century. British responses to the 1857 Insurrection in India, the hangings of Afro-Caribbeans in Jamaica in 1864 at Morant Bay and General Dyer’s firing into a crowd at Jalianwallah Bagh well into the last century, were, on this view isolated instances. Perhaps. There may be a place in which to compare the relative degrees of oppression, the numbers of dead from murder or starvation during Partition in 1947 maybe, the good or bad intentions of the regime of oppression, for example, but this is not that place.

Of course, there were ethical-looking justifications in British imperialist practices for the conquest and government of inferior peoples: the latter required teaching, preferably Christian teaching.21 But if that was not practicable, as it seldom was in India, then there could be substituted the teaching of how to be as British as possible, the necessary incompleteness of whose accomplishment consigned the native to a reflexive second-rate-ness as efficiently as Christianity, for a time. A character in Vikram Seth’s novel, set in post-colonial India, insists that the only place to buy children’s toys is Hamley’s of London. He admits, after polite questioning, that he has not actually been to London, his capital of the world, but it is his intention to do so soon. During colonialism itself, as Ashis Nandy put it, the colonized’s “identification with the aggressor bound the rulers and the ruled in an unbreakable dyadic relationship”.22

These processes coincided with the perception among Britain’s rulers that British greatness and pre-eminence in the world depended on its empire. Threats to commercial, industrial and military pre-eminence from without, from Germany, the United States and Japan, and from within, from the working class and from women, could be resisted, from a governing perspective, only with firm discipline applied through firm rules. And firm rules required teaching, first of those who were to apply them, and second, of those to whom they were to apply.

In a reversal of Adam Smith, historical and anthropological concerns about how societies might be conceived to have developed, or about how and why different societies developed differently, as well as sociological inquiries anent contemporary social order “at home” were subordinated to the prescriptive needs of social ordering and the production, in maintaining social order of, precisely, subordination for the “good of the subject” – the passivity of employees in industrial relations, or security from foreign threats, for example – where this comports with the good of the dominant. This always has sinister implications and, to a significant degree, we are still subject to this pattern of thought. One has only to think of the prescriptive work which “development” does in the international sphere.23

Teaching, which is not the same thing as education, is indispensable in this context, law-like and rule-heavy as it is. Thus FR Leavis makes the distinction between the indispensable instructor and the academic abundantly clear:

My aversion from the word “teach” preceded – it was only intensified by – my acquaintance with those American “notes on contributors” that tell one that X, Y or Z “teaches” Joyce or Thomas Mann or Faulkner or the Cantos at this or that college or university. If one’s concern is with literature one doesn’t think of oneself as “teaching”. One thinks of oneself as engaged with one’s students in the business of criticism – which, of its nature, is collaborative. The student on his part, ought to be able to think of himself as belonging to a collaborative community formed by the English school as a whole, undergraduates, graduate students and permanencies, and the more, let me parenthetically add, he can feel it transcends departmental frontiers the better …24

An Historiography for a Relational and Contextual Legality

In the footsteps of Smith, to some extent, Leavis, and others, the book that follows is contextual and historiographical in intention. I have tried to minimize references in this chapter, since many of the propositions made here will be encountered more fully later. The text sees the narratives we tell about ourselves, ours’ and others’ pasts, as inevitably informing not only an understanding of the world, but justifying certain actions and disapproving other actions in the world. This is a proposition that may seem obvious enough, but is, equally, overlooked sufficiently often in scholarly practice to need restating.25 Does my emphasis on the performative work always done by conceptual activity put me in opposition to Marx’s diagnosis of the inadequacy of how he considered philosophical scholars saw the purpose of their writing at the time of his own analyses: “the philosophers have only interpreted the world in various ways: the point is to change it”?26 I am unsure. Perhaps, and this seems likely, it is only Feurbach’s conception of his own role as a philosopher that Marx has in mind, since there is little doubt that historians, philosophers and theorists of every stripe have always had profound, if often indirect influence on social action, quite apart from the “think-tank” mercenaries nowadays hired to serve the “policy” interests of pressure groups and governments by telling them what they wish to hear.27

As the theme of the book implies, to repeat, I intend it to be a sign for the interaction of legality, as understood, at least, by English, but not only English common law at various times, but of the English subject as it evolved as, naturally, among other things, a subject of law, but also, and this is an important third segment, a process in which s/he is a subject involved and changed by empire. None of these dimensions of the subject, all of them, of course political, or the areas studied here can be understood separately. But I have taken the subject as such as a pivotal concept. Plainly one cannot imagine a single subjectivity in a political or social formation, but one can discover a range of positions offered to a person to act out his or her performance. This is not, as will become clear, akin to the sociological notion of role, in which the already-subject assumes many personae, as mother, daughter, lawyer, etc. I am assuming that there is no subject prior to the adoption of available languages; without that, there cannot be a subject who speaks, knows, etc.

When I turn to law, I focus mainly on English law, more particularly where it speaks of sovereignty in the context of political theory; on the English subject; and on the British Empire. I am following Edmund Burke’s adjuration that one be specific, something I have adverted to and shall return to. How, for example, Burke asks in his criticism of the French Declaration of the Rights of Man and Citizen,28 can one understand the nature of a subject as simply “a man”? It was a question which seems to have quite surprised Agamben two centuries later.29 How could a mere Irish Whig have thought so profoundly? Burke was echoed almost a century and a half later by Hannah Arendt. One, of course, she insists, needs more specificity than the airy category of the human. The abstract human has no polity, even, as a colonial subject, a place in an oppositional polity. S/he, one might say, is not constituted politically. The slave and the woman in classical Athenian society were not principally sources of cheap labor, but rather regarded as human animals because they were not part of the city other than in the physical sense.

I have already struck a number of theoretical reefs: the English subject, English common law, the British Empire. Without at this stage encountering the Welsh or, more manifest, the Irish questions, it is evident that the United Kingdom is not a nation. Even “being British is not an ethnicity, it describes citizenship … cooked up by James (VI/I) … invented as a cultural identity corresponding to the political identity, British, only fairly recently”.30 Young finds “Britishness” emerging only in 1884, and Englishness to be, as I shall describe, a largely Scottish invention, and in post-eighteenth century usage to be used largely to describe absence and diaspora, as in Rupert Brooke’s poem, where England is conjured only to refer, significantly, to burial in some “foreign field” which is as a consequence, “forever England”.31 Defoe is more trenchant and satirical about any pretense of purity or an essential English nature. He lists the multi-ethnic invasions from Roman times to his own and concludes, “A true-born Englishman’s a contradiction/ In speech an irony, in fact a fiction”.32 Scotland abandoned its Parliament for nearly three centuries, but retained its Kirk and its law, and still played a large role, as mentioned, in maintaining both the English subject as it was reconstructed after the ravages of the UK/dis-UK civil war of the seventeenth century, and the balanced constitution upon which English law rested. Britain, as it becomes in 1707, in an act putting to an end the ambiguity of the dual monarchy which was an empire of Britain only in Stuart monarchy fantasies of the nature of the two countries they governed. It was essential for Scotland to be part of a British union and equally essential for the English continually to be reminded of the secrets of stability, liberty and safety of property on to which they had stumbled.

Mapping the Nature of Law

The second reef is the concept of law, which, as I shall say later in this chapter and again later in the book, is not stable, not merely as to substance – what it contains, whether a contract requires consideration, or a contract for future exchanges, for example, is enforceable. It was unstable over time as to its very nature. It was the outcome of custom at many levels and types of jurisdiction, varying with the relative powers of the parties composing the jurisdiction. It was certainly not the preordained outcome of centralized rationality, as some textbooks would have it and its tessellated structure remains now in the mass of tribunals, delegated systems and discretions of modern officials whose authority is often shrouded in mystery, even from themselves. Overlooking this, and forgetting their own past was, for European colonizers, quite convenient. If “non-primitive” law had certain invariable characteristics which, according to nineteenth and twentieth century legal theorists, it did, as we shall see in the writing of HLA Hart, it was easy to portray societies without particular organs with which Europeans considered themselves governed by, and had, by the early modern period become familiar, to change or implement law – legislators, professional judiciaries, “rational” bureaucracies, for example – as “simply” not possessing law and thus in need of European tutelage in order to develop, modernize and to be capable of governing themselves.

Third, in my discussion of the subject, I appreciate that I run the risk of being labeled essentialist or even determinist. I have, as I suggested, taken the subject to be a civic or political being, more than an animal that works and breeds; and the more intensely s/he is a participant in the tribe, city or state s/he inhabits, the more intense that civic or political subjectivity seems to me to be, and the further we move from the bare, or abstract, human toward the performance of something more concrete. Participation, as I have suggested, may take the form of resistance, as in the example of Sinn Fein or the other colonial resistance movements. As to essentialism, I have drawn, admittedly freely, on the writings of Foucault and Lacan to explain how we might understand how the neonate becomes a communicative social and potentially political being. At one level, of course, there is always some room within the symbolic order for reflexive change, or simply misconception. If there is a Lacan who both belongs but also “sees” the symbolic order in a certain way, then there seems implied some flexibility in “the” symbolic order(s). We are not confronted with Althusser’s mechanism of interpellation, where the “Hey, you” of the Ideological State Apparatus determines the human as an entirely involuntary subject-bearer of the social order.33

The Mirror of the Developmental Gaze and Its Lacanian Theorization

I have for the most part assumed Lacan’s structure, for the sake of argument, but not the almost functionalist version which apparently attracted Althusser to Lacan’s work. There are delusional – from points of view generally deemed normal – orders inhabited by untreated paranoiacs or psychotics, but most subjectivity is derived from something Lacan would regard as more than a consciously-adopted convention. Belonging to a symbolic order, an order of language, is enabling, not imprisoning; but I want to leave open the possibility that there does exist a consciousness of ambiguity, a “psychic distance”, as Ellie Ragland-Sullivan puts it34 and alternative pathways of enablement.

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