Tuesday, April 3, 2007

Agamben borrows Nancy’s insight that the authority of the law is no longer based on application but on abandonment

To me the perfect blend can be found, in all places, in V for Vendetta, during the scenes of torture and imprisonment, when Evey receives the letters that V himself had once received, and they read something like: I do not know you, I have never met you, and yet there is something about you that make me know that I love you. It’s far more elegant in the film, but there is in that moment a synthesis of Agamben’s form of life with Levinas’ preontological caress. Can you elaborate some on the Kennedy writings your referencing? I might enjoy adding them to my list of casual reading :) Kenneth Rufo said this on April 1st, 2007 at 10:47 pm
To begin with the end:
Surely. “Stakes of Law” is Kennedy’s most accessible (for those of us with humanities backgrounds, rather than social science backgrounds) piece on the function and place of private law in a post-industrial capitalist society. But Kennedy has something of the eclectic in him too, so he hits on many issues as he moves along (so I don’t want to make it sound as if that essay was limited to that focus). His most famous essay, the one that made him famous in legal scholarship, is the 1976 essay, “Form and Substance in Private Law Adjudication.” It’s great, but it’s rather difficult to follow unless you’ve got a strong background in the history of law. This essay is cited by even those hostile to Kennedy and the crits (and the hostiles are legion!). I recently gave a sort of talk on the themes of the “Paternalistic and Distributive Motives” essay, which encapsulates Kennedy’s thought in the early 80s - that’s a good one. Things begin to change around this point as the “first wave” of CLS was dying off, and the second was beginning (new scholars, new themes, more radicalism) - the dialogue “Roll Over Beethoven,” between Kennedy and legal theorist Peter Gabel, discloses several fundamental changes in the CLS mode of thought. So that’s a good one. And then there’s the book Sexy Dressing, Etc, which is not so much “legal theory” but a sort of blend of law, sociology/economics, and cultural theory. Not terribly important, but a good read.
If you want to become familiar with the CLS “movement” as it was in the 80s, pick up The Politics of Law, which is a panoply of critical essays. It’s also decent. Ah, and your background in communications theory makes perfect sense now. Yes, I would imagine that Agamben’s thesis on language-as-such would be terribly interesting for your field. But can I comment on your remarks on Fuller/Agamben?
If we take the idea of contract as inherently interactional, which is a perfectly reasonable way to approach it, do we not presuppose freedom of contract? And perhaps this was valid once - in a socio-political milieu that would predate our own, that is, a milieu in which agriculture and even industry are the principal structures of society or the market, a milieu that does not know the intensity of the commodification of service and the network of exertions of power known as “(popular, media, product) culture” today? I mean, Fuller operates on this presupposition, which is a problem. And I always try to take these thinkers in their contexts, but I don’t think the idea of freedom of contract - most basically, that you freely enter into the transactions and agreements that you in fact enter into, from simple purchases to insurance contracts to whatever else - ever had validity, it only seemed to. But anyway, I think Agamben’s understanding of law (albeit in the public law context) pushes him away from this type of thinking, insofar as he borrows Nancy’s important insight that the authority of the law is no longer based on application (law-to-fact) but on abandonment (fact already abandoned to law - in short, law works its normativity before any “application” of law to fact - law is already life). And in a sense this was realized long ago in the legal realm, though without the radicality of a Nancy or Agamben.
It happened, in American legal history, with the demise of Langdellian formalism and the birth of legal realism, around the New Deal era. Contract law (and tort law) shed their rigid rules to an extent (e.g., the doctrine of consideration or the parol evidence rule in contracts) and become saturated with these tropes that allow seamless ingress and egress into and out of the structure of the “total legal obligation” (to quote the UCC) - some examples might be unconscionability, the covenant of good faith and fair dealing, and the ever elusive “due care.” This is a fundamental paradigm shift in the development of the law. And that we, as consumers, as contracting parties, as atoms of society, are already abandoned to these legalisms (rather, that they are no longer “legalisms,” but facts of life) means that Agamben’s Benjaminian thesis on the state of exception become rule has tremendous relevance for private law. (Noting well that Agamben and every other non-classical-liberalist disavows the public/private distinction - private and public are here signifiers of different, though impossibly intertwined, fields of law, taken in an academic sense).
Hey, I’m sorry that was drawn out. And I know this is not a legal theory blog. Sinthome, please let me know if this is something you’d rather not see played out on your turf. Kenneth, you’ve got some interesting thoughts on V for Vendetta. Thanks for sharing them. Kyle said this on April 1st, 2007 at 11:45 pm
There’s no need to worry about whether or not you’re departing from the theme of the original post. Both of you are discussing issues that are quite far from my own areas of expertise, so I’m happy to sit back, take notes, learn and follow up your references when time permits. I’m pleased to see a discussion of this caliber occuring on this blog. I think of these blog spaces primarily as public squares, where discussion is free-form and allowed to follow its own development, opening the possibility of encounters that would not otherwise take place. Thanks to both of you for deciding to play on my corner. larvalsubjects said this on April 2nd, 2007 at 9:02 pm

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