Back to Dun Rantin’

Back to Welcome

Back to previous ping

or onto next Pong

Back to the ping pong index

Ping Pong 6: Absentee Law Makers

  In the previous Rant, the theme of justice was followed down its blind ally of property. Property allowed justice to configure itself on an apersonal element which bound up all humans within an abstract system, whose human agent was the abstract element ‘Man’. The result was a system which was not only iniquitous but also actively undermined many of its avowed intentions. In Utopia Moore suggested as an alternative, a system which revolved around allowing natural differences between humans, their own free standing power. Thence in Utopia, natural differences were articulated to their best effect. However there was a very considerable cost in the process. The Utopians traded our world of law of property for a society of perpetual interference. Utopians might, as Moore says, have very few laws, but those laws which there are, are constantly enforced, and their presence felt. Moore then hints, albeit indirectly, at one of the peculiar features of LAW (as opposed to justice). Law as a system has at its heart the idea that its driving force is blind, or perhaps better, what regulates it does so in the abstract, and therefore in reference to all humans all the time. This contrasts with either the ‘traditional’ justice based systems where each act of ‘lawyering’ was a unique construction or bargain aimed at recompensing a unique crime; or again the Utopian way, where the law is perpetually present (in the form of monitoring) and is so even if the only people who are actually treated in the abstract (and their natural differences occluded) are criminals.

   In term of this series of Rants thus far pursued, it is clear enough ‘where’ law comes form. Law is the engraving upon the world of an absentee creator. That is, it is a synthesis of that Augustinian position which understood God removed from the world he created, as something apart and special, and the Plotinian perspective which understood the world as the emanation of a God, who was present within if irreducible to (and different from) the world. God is absent from his world, and yet that world remains his. God’s goodness or at least his justice, emanates  across all being, and is seen in laws, be they human or divine. In effect law is the result of understanding the world as the property of a good if absent God. It is the world understood in terms of that absence. Or better it is what that absence bequeaths the world.

  However, if law is the belonging of the world to a good (if absent) God, then an opposite argument can also be made. That is, one could easily have an alternative synthesis where God’s absence itself was seen as a testament to his power. God is then that which whose power (and therefore that which whose presence) cannot ever be given fully within the world: God is that whose greatness overflows (and knows no bounds). Such a perspective launches one into a negative theology, where the hidden element of God itself testifies to his own (non)-presence and his own power. That is, God’s very absence in the world is a testament to his power that transcends given being. Law and negative theology become therefore alternative syntheses of the Plotinian-Augustinian axis. The former places the emphasis in this world on the presence of a law, which testifies to an absentee creator; whilst the latter takes that absence itself as a testament to God’s power (that is the ability to create and recreate the world). Once again it is a mistake to see this debate as locked in the mysticisms of the past. On the contrary these are ideas whose consequences haunt us still.

  To take the example of Law first. The entire idea of the Human Rights that are enforceable by laws, national and international is the creation of such a perspective. In this case the ‘absentee’ element is the very abstract notion of ‘MAN’. This Man has human-given rights as a human being, in his very universalism of certain rights. It is known then in the laws that it obliges countries to follow (or better the laws they should follow). One must make law in the light of the still hidden element. And yet there is of course a real problem in this nod to absence. What that ‘Man’ is, is not worked out save through the laws, that is save through the testament to absence. The result is of course that lawyers or and even more the media, inhabit that absence. The act becomes less about universal human rights, but rather about the bureaucracy, and self-interest. It becomes then the provenance of daffy cases. Or rather it becomes all about daffy cases, irrespective of whether those cases are followed up or not. We come, and by ‘we’ I particularly mean bureaucracies) very aware that human rights (whatever they are) might be infringed by our actions, and yet have little clear idea of what those rights are (as the precise definition of those rights are only known in the infringing). In this worry, in this dissolving abstract human right onto the level of the trivial, it matter little whether the cases of law are followed up or not. The entire system is characterized by absence of a supposed presence. It matters then little whether that absence is being worked out directly in the law courts themselves or indirectly in the worry about law. In either case the effect is the same. Laws whose inception sounds so good, so honest and noble, dissolve themselves across a testimony that appear only given in the trivial, and the unimportant and bureaucratic: Law’s high aim is then dissolved in its actual application (the effect here is then synonymous with the famous Darwinian atheist Haldane’s answer to what the study of biology would tell one of God which was - ‘he must be inordinately fond of beetles.‘).The image of absent law which is characterized only in its own (problematic) application is perhaps one of the great tragi-comedies of the post war world. The world that hoped the passing of human rights, of setting abstract laws based on an abstract notion of the human, would be enough to make the world a better place.

  Modern negative theologies resolve around such conceptions as ‘health’ or ’normality’. Both of these elements are held up as somehow special, and yet each are utterly indefinable, and known only in a negative worry. That is, one knows exactly what over weight (or under sleep) is, and from that knowledge of the  negative, attempt to codify in one’s own mind what the alternative might be. And yet the result is naturally extremely slippery. Whatever weight one is (or whatever mental state one is in) does not feel quite ‘good’ enough to testify to such a divine construct as health in itself (or normality of itself). One is locked in a perpetual quest, for the impossible or rather, for that which is only ever defined in absence and lack. At precisely this point, numerous therapies, conventional or alternative, leap up, and claim to achieve the impossible, that is the direct transfiguration of the healthy into our lives. Negative theology has then become rather lucrative, for those who claim to be able to move us beyond it.

  The presence as absence and absence as presence of law and negative theology are therefore still very much alive. What is more, we are also still clearly caught up in others of their legacies. Once again I will take law first. If one considers the historical process through which law came into being, three elements clearly matter.

  Firstly the very abstraction of laws was intimately associated in their inception, with absence. That is laws, were from at least Henry II’s time onwards (but possibly before) what enshrined the King’s will when he was not present. Judges were therefore his direct representative in the country (it was therefore high treason to kill a judge). Law provided them with a way for the king to enshrine his will over an entire kingdom, and the means by which good kings were distinguished from bad. From this inception two further things follow. On the on hand, the necessary corollary of absence is abstraction. That is the point of a law is, that it is not clear how or when it is applied. It must be in a very real sense, blind and universal. It will be so whether the law is case driven (examples taken as abstractions), or code driven. This is no doubt why it has become apparently so difficult in the media age to define good law. The curse of New Labour (well one of their curses) is measured in the weight of bad laws which they pass. These laws all have the same basic feature of being initially defined in relation to a media storm. A law is defined to be a solution to a very specific (and possibly unique) situation. Such a law then is unworkable or at least highly problematic when given wider application. On the other hand, once law is taken to resolve around something not-present, then there is a clear potential escalation of that non-presence to include any earthly organization. Everything (including government) becomes therefore under the purview of the law. A move which of course catches one up in a double bind. As this being caught up within the demands of justice, this necessary extension of the law, is all very well; but as it increases the power of lawyers to define the fate of governments, that is rather a different matter (think of the judges who defined the 2000 American election result).

  Secondly, there is actually a tension between law as abstract and therefore universal element, and that element, that point of presence, from which the law itself emanates. In the mediaeval system this point was given by the King. The king was above the law, or better was the Law embodied. Kings could do then, as they pleased. In our modern system, this perk or presence is still very much the preserve of the powerful classes. Government itself is following a long tradition in seeing itself as above or better or ‘other than’ the law; and hence that otherness is enshrined within the rights to perks or the right to torture. In this respect it is one of the advantages of the constitutional monarchy that it poses an ultimate limit to this excess; politicians might step otherwise than law, and yet they only do so as that power is borrowed from a royal prerogative; thence power to be otherwise is never their own alone (in a presidential system, a constitution plays the same role). 

  However one of the problems of the modern democratic age is that we have added extra organizations, to this allowance to be otherwise, which now includes large multi national companies and media organizations. Moreover these two domains are not just other than the law, they are otherwise different from government and from each other. The law cannot effect the former because the exact location of such companies is impossible to define. Indeed one might go so far as to say that the very essence of such companies lies within their dynamisms, that is their ability never to be in one place and therefore never to be caught up in one set of laws. They are therefore what falls in between all jurisdictions (a status which they will of course defend).

  The Media by contrast eludes the law, far more subtly. Media organizations attach themselves as it were to one aspect of the law, namely free speech, which they then use as a shield to protect themselves from the law itself. Any government foolhardy enough to attack the media will then also necessarily be attacking free speech (as the media ensures one cannot put a knife blade between the two), and will moreover in this attack have all the media arranged against them. Thence the media strategy is to use the law to be above the law itself.

  Thirdly there is of course in the very inception of law, a real tension between absence and presence. The law is made in the name of something absent (be it God or king), but something present (and therefore powerful). There is therefore always the possibility that what is ‘present’ might want to grab control of the law giving agenda, a demand that either parliament or (by partial contrast) whatever thugs enforce the law, actually has the right to decide what those laws might be. A system of law always stands on the threshold of anarchy, where voices other than law demand their effect (and power).

  The modern incarnation of negative theology, by contrast is caught up in the deep connection which we still feel between mortification of the flesh and spirituality. The Spiritual is therefore all too often translated into the world within the quest to find ‘oneself’. Deep problems within wider society are thereby codified; either within selfish and self absorbed quests after health or happiness or harmony or the new-age, and their power to actually shake up the world lost; or else a more general disgruntlement with the materialism of society as a whole (without any attempt being made to solve that disgruntlement). These moves involve the double sin of rendering political problems unsolvable (as they become identified with personal problems), but also of losing sight of the spiritual in a maze of self absorbed therapies, and simple solutions (or paths). In effect individual gripes with the world we live in are taken (and then marketed) as a testament of something special, something beyond the world itself, and thereby spiritualized. We end up loving not only our pain, but also our right to whinge (and someone else makes themselves rather wealthy in the process!).

  The politics and policies of the absence in presence that is law and presence through absence (negative theology), are legacies of the Middle Ages whose surging effects are still very much with us today. The latter (negative theology) is (well for us revolutionaries) by far the more insidious, as it transliterates a potential revolutionary army of the politically disadvantaged, into  quietist questers after ‘themselves’. But perhaps this is a personal gripe! For it is true the former, the provenance of the law, whose origin lies always pitched beyond the world in which it is given, is probably the more influential of these two theses. It is certainly the one in whose light and in whose anomalies we do all still very much dwell. Our problem is then still the problem that the Seventeenth Century faced. That is, how does one reconcile oneself with the anomalies that appear so necessary to the law; how does one confront these anomalies without either pitching the society into anarchy, or yet losing oneself within a maze of negative (if personal) theology. How does one allow presence (or at least individualized difference) into the system, without collapsing into our world of abstract law, or the utopian world of micro-regulation? It is the great Seventeenth Century experiment into this problem that the next Rant will turn.

Aphorisms and Incitements

 

I ache and therefore I am, has more wisdom in it than one might suppose.

It leads to the demand to ache.

And yet perhaps it would lead to the demand not to be, or at least not to be an I which does the aching…

Ping Pong 6: Absentee Law Makers

  In the previous Rant, the theme of justice was followed down its blind ally of property. Property allowed justice to configure itself on an apersonal element which bound up all humans within an abstract system, whose human agent was the abstract element ‘Man’. The result was a system which was not only iniquitous but also actively undermined many of its avowed intentions. In Utopia Moore suggested as an alternative, a system which revolved around allowing natural differences between humans, their own free standing power. Thence in Utopia, natural differences were articulated to their best effect. However there was a very considerable cost in the process. The Utopians traded our world of law of property for a society of perpetual interference. Utopians might, as Moore says, have very few laws, but those laws which there are, are constantly enforced, and their presence felt. Moore then hints, albeit indirectly, at one of the peculiar features of LAW (as opposed to justice). Law as a system has at its heart the idea that its driving force is blind, or perhaps better, what regulates it does so in the abstract, and therefore in reference to all humans all the time. This contrasts with either the ‘traditional’ justice based systems where each act of ‘lawyering’ was a unique construction or bargain aimed at recompensing a unique crime; or again the Utopian way, where the law is perpetually present (in the form of monitoring) and is so even if the only people who are actually treated in the abstract (and their natural differences occluded) are criminals.

   In term of this series of Rants thus far pursued, it is clear enough ‘where’ law comes form. Law is the engraving upon the world of an absentee creator. That is, it is a synthesis of that Augustinian position which understood God removed from the world he created, as something apart and special, and the Plotinian perspective which understood the world as the emanation of a God, who was present within if irreducible to (and different from) the world. God is absent from his world, and yet that world remains his. God’s goodness or at least his justice, emanates  across all being, and is seen in laws, be they human or divine. In effect law is the result of understanding the world as the property of a good if absent God. It is the world understood in terms of that absence. Or better it is what that absence bequeaths the world.

  However, if law is the belonging of the world to a good (if absent) God, then an opposite argument can also be made. That is, one could easily have an alternative synthesis where God’s absence itself was seen as a testament to his power. God is then that which whose power (and therefore that which whose presence) cannot ever be given fully within the world: God is that whose greatness overflows (and knows no bounds). Such a perspective launches one into a negative theology, where the hidden element of God itself testifies to his own (non)-presence and his own power. That is, God’s very absence in the world is a testament to his power that transcends given being. Law and negative theology become therefore alternative syntheses of the Plotinian-Augustinian axis. The former places the emphasis in this world on the presence of a law, which testifies to an absentee creator; whilst the latter takes that absence itself as a testament to God’s power (that is the ability to create and recreate the world). Once again it is a mistake to see this debate as locked in the mysticisms of the past. On the contrary these are ideas whose consequences haunt us still.

  To take the example of Law first. The entire idea of the Human Rights that are enforceable by laws, national and international is the creation of such a perspective. In this case the ‘absentee’ element is the very abstract notion of ‘MAN’. This Man has human-given rights as a human being, in his very universalism of certain rights. It is known then in the laws that it obliges countries to follow (or better the laws they should follow). One must make law in the light of the still hidden element. And yet there is of course a real problem in this nod to absence. What that ‘Man’ is, is not worked out save through the laws, that is save through the testament to absence. The result is of course that lawyers or and even more the media, inhabit that absence. The act becomes less about universal human rights, but rather about the bureaucracy, and self-interest. It becomes then the provenance of daffy cases. Or rather it becomes all about daffy cases, irrespective of whether those cases are followed up or not. We come, and by ‘we’ I particularly mean bureaucracies) very aware that human rights (whatever they are) might be infringed by our actions, and yet have little clear idea of what those rights are (as the precise definition of those rights are only known in the infringing). In this worry, in this dissolving abstract human right onto the level of the trivial, it matter little whether the cases of law are followed up or not. The entire system is characterized by absence of a supposed presence. It matters then little whether that absence is being worked out directly in the law courts themselves or indirectly in the worry about law. In either case the effect is the same. Laws whose inception sounds so good, so honest and noble, dissolve themselves across a testimony that appear only given in the trivial, and the unimportant and bureaucratic: Law’s high aim is then dissolved in its actual application (the effect here is then synonymous with the famous Darwinian atheist Haldane’s answer to what the study of biology would tell one of God which was - ‘he must be inordinately fond of beetles.‘).The image of absent law which is characterized only in its own (problematic) application is perhaps one of the great tragi-comedies of the post war world. The world that hoped the passing of human rights, of setting abstract laws based on an abstract notion of the human, would be enough to make the world a better place.

  Modern negative theologies resolve around such conceptions as ‘health’ or ’normality’. Both of these elements are held up as somehow special, and yet each are utterly indefinable, and known only in a negative worry. That is, one knows exactly what over weight (or under sleep) is, and from that knowledge of the  negative, attempt to codify in one’s own mind what the alternative might be. And yet the result is naturally extremely slippery. Whatever weight one is (or whatever mental state one is in) does not feel quite ‘good’ enough to testify to such a divine construct as health in itself (or normality of itself). One is locked in a perpetual quest, for the impossible or rather, for that which is only ever defined in absence and lack. At precisely this point, numerous therapies, conventional or alternative, leap up, and claim to achieve the impossible, that is the direct transfiguration of the healthy into our lives. Negative theology has then become rather lucrative, for those who claim to be able to move us beyond it.

  The presence as absence and absence as presence of law and negative theology are therefore still very much alive. What is more, we are also still clearly caught up in others of their legacies. Once again I will take law first. If one considers the historical process through which law came into being, three elements clearly matter.

  Firstly the very abstraction of laws was intimately associated in their inception, with absence. That is laws, were from at least Henry II’s time onwards (but possibly before) what enshrined the King’s will when he was not present. Judges were therefore his direct representative in the country (it was therefore high treason to kill a judge). Law provided them with a way for the king to enshrine his will over an entire kingdom, and the means by which good kings were distinguished from bad. From this inception two further things follow. On the on hand, the necessary corollary of absence is abstraction. That is the point of a law is, that it is not clear how or when it is applied. It must be in a very real sense, blind and universal. It will be so whether the law is case driven (examples taken as abstractions), or code driven. This is no doubt why it has become apparently so difficult in the media age to define good law. The curse of New Labour (well one of their curses) is measured in the weight of bad laws which they pass. These laws all have the same basic feature of being initially defined in relation to a media storm. A law is defined to be a solution to a very specific (and possibly unique) situation. Such a law then is unworkable or at least highly problematic when given wider application. On the other hand, once law is taken to resolve around something not-present, then there is a clear potential escalation of that non-presence to include any earthly organization. Everything (including government) becomes therefore under the purview of the law. A move which of course catches one up in a double bind. As this being caught up within the demands of justice, this necessary extension of the law, is all very well; but as it increases the power of lawyers to define the fate of governments, that is rather a different matter (think of the judges who defined the 2000 American election result).

  Secondly, there is actually a tension between law as abstract and therefore universal element, and that element, that point of presence, from which the law itself emanates. In the mediaeval system this point was given by the King. The king was above the law, or better was the Law embodied. Kings could do then, as they pleased. In our modern system, this perk or presence is still very much the preserve of the powerful classes. Government itself is following a long tradition in seeing itself as above or better or ‘other than’ the law; and hence that otherness is enshrined within the rights to perks or the right to torture. In this respect it is one of the advantages of the constitutional monarchy that it poses an ultimate limit to this excess; politicians might step otherwise than law, and yet they only do so as that power is borrowed from a royal prerogative; thence power to be otherwise is never their own alone (in a presidential system, a constitution plays the same role). 

  However one of the problems of the modern democratic age is that we have added extra organizations, to this allowance to be otherwise, which now includes large multi national companies and media organizations. Moreover these two domains are not just other than the law, they are otherwise different from government and from each other. The law cannot effect the former because the exact location of such companies is impossible to define. Indeed one might go so far as to say that the very essence of such companies lies within their dynamisms, that is their ability never to be in one place and therefore never to be caught up in one set of laws. They are therefore what falls in between all jurisdictions (a status which they will of course defend).

  The Media by contrast eludes the law, far more subtly. Media organizations attach themselves as it were to one aspect of the law, namely free speech, which they then use as a shield to protect themselves from the law itself. Any government foolhardy enough to attack the media will then also necessarily be attacking free speech (as the media ensures one cannot put a knife blade between the two), and will moreover in this attack have all the media arranged against them. Thence the media strategy is to use the law to be above the law itself.

  Thirdly there is of course in the very inception of law, a real tension between absence and presence. The law is made in the name of something absent (be it God or king), but something present (and therefore powerful). There is therefore always the possibility that what is ‘present’ might want to grab control of the law giving agenda, a demand that either parliament or (by partial contrast) whatever thugs enforce the law, actually has the right to decide what those laws might be. A system of law always stands on the threshold of anarchy, where voices other than law demand their effect (and power).

  The modern incarnation of negative theology, by contrast is caught up in the deep connection which we still feel between mortification of the flesh and spirituality. The Spiritual is therefore all too often translated into the world within the quest to find ‘oneself’. Deep problems within wider society are thereby codified; either within selfish and self absorbed quests after health or happiness or harmony or the new-age, and their power to actually shake up the world lost; or else a more general disgruntlement with the materialism of society as a whole (without any attempt being made to solve that disgruntlement). These moves involve the double sin of rendering political problems unsolvable (as they become identified with personal problems), but also of losing sight of the spiritual in a maze of self absorbed therapies, and simple solutions (or paths). In effect individual gripes with the world we live in are taken (and then marketed) as a testament of something special, something beyond the world itself, and thereby spiritualized. We end up loving not only our pain, but also our right to whinge (and someone else makes themselves rather wealthy in the process!).

  The politics and policies of the absence in presence that is law and presence through absence (negative theology), are legacies of the Middle Ages whose surging effects are still very much with us today. The latter (negative theology) is (well for us revolutionaries) by far the more insidious, as it transliterates a potential revolutionary army of the politically disadvantaged, into  quietist questers after ‘themselves’. But perhaps this is a personal gripe! For it is true the former, the provenance of the law, whose origin lies always pitched beyond the world in which it is given, is probably the more influential of these two theses. It is certainly the one in whose light and in whose anomalies we do all still very much dwell. Our problem is then still the problem that the Seventeenth Century faced. That is, how does one reconcile oneself with the anomalies that appear so necessary to the law; how does one confront these anomalies without either pitching the society into anarchy, or yet losing oneself within a maze of negative (if personal) theology. How does one allow presence (or at least individualized difference) into the system, without collapsing into our world of abstract law, or the utopian world of micro-regulation? It is the great Seventeenth Century experiment into this problem that the next Rant will turn.