Levinas, Law, Politics

Levinas, Law, Politics

Emmanuel Levinas’s reformulations of subjectivity, responsibility and the good have radically influenced post-structuralist thought. Political and legal theory, however, have only marginally profited from his moral philosophy. Instead, Levinas’s theme of one’s ‘infinite responsibility for the other’ has been often romanticised by advocates of natural justice and diluted by proponents of multiculturalism. In this volume, political theorists, philosophers and legal scholars critically engage with this idealisation of Levinas’s ethics. The authors show that his idea of ‘the other in me’ does not offer a quick cure to today’s nationalist, racial and religious divides. Nor does his notion of ‘anarchic responsibility’ provide immediate relief for the agony of dealing decisively with matters of life and death. The rebelliousness of Levinas’s thought is here rediscovered and used to challenge our preconceptions of social, legal and individual responsibilities. Marinos Diamantides is Senior Lecturer in Law at Birkbeck School of Law, UK.

Levinas, Law, Politics

Edited and with an introduction by Marinos Diamantides

First published 2007 by Routledge-Cavendish 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN, UK Simultaneously published in the USA and Canada by Routledge-Cavendish 270 Madison Ave, New York, NY 10016 A Glasshouse book Routledge-Cavendish is an imprint of the Taylor & Francis Group, an informa business This edition published in the Taylor & Francis e-Library, 2007. “To purchase your own copy of this or any of Taylor & Francis or Routledge’s collection of thousands of eBooks please go to www.eBookstore.tandf.co.uk.” © 2007 Marinos Diamantides All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data A catalog record for this book has been requested ISBN 0-203-94508-5 Master e-book ISBN ISBN10: 1–904385–61–3 (hbk) ISBN13: 978–1–904385–61–5 (hbk)

Contents

Editor’s Introduction

1

PART I

Face-to-face with the Other or just before the Law?

33

1 Politics not left to itself: recognition and forgiveness in Levinas’s philosophy

35

JULIA PONZIO

2 Levinas, mercy, and the Middle Ages

49

MARTY SLAUGHTER

3 Hands that give and hands that take: the politics of the Other in Levinas

71

TINA CHANTER

PART II

Levinas and political theory: a dangerous liaison? 4 Levinas’s silence

81 83

HOWARD CAYGILL

5 Five problems in Levinas’s view of politics and a sketch of a solution to them SIMON CRITCHLEY

93

vi

Contents

6 Levinas and the limits of political theory

107

C. FRED ALFORD

7 Politics and transcendence

127

BRIAN SCHROEDER

PART III

Levinas and the Law: a welcome intrusion 8 Here I am: illuminating and delimiting responsibility

143 145

DESMOND MANDERSON

9 Who has the right to die?

165

DRUCILLA CORNELL

10 Levinas and critical legal thought: imbroglio, opera buffa, divine comedy?

179

MARINOS DIAMANTIDES

Index

217

Editor’s Introduction Responsibility in the wake of the subject’s demise: the appeal and dangers of Levinas’s ethical anarchy

1. Radical passivity and anarchic responsibility ‘Nothing of what the great philosophers have written on the subject grows obsolete, but this is why, thanks to them, we have other problems to discover, problems that save us from the “return” that would only show our incapacity to follow them. Here the position of philosophy is not fundamentally different from that of science or art.’1 The quote above, from a collection of essays entitled Who Comes After The Subject?, captures the spirit of post-structuralist scepticism vis-à-vis the notion of the human subject. Post-structuralist thought questions both the idealist take on rational man as free to ‘transcend’ the world, and the reductionist materialist assumption of man as a mere product of impersonal processes. At the same time post-structuralist thought does not absolve itself of the task, which is not ‘fundamentally different from that of science and art,’ to rethink the question of the subject following the ‘death of man’. Indeed, for Deleuze, the ‘subject’, like other all philosophical concepts, fulfils several functions in fields of thought which are defined by internal and external variables and, therefore, it may not simply ‘die’ when one wants it to, unless new functions in new fields discharge it.2 In this spirit, the collection mentioned above centred on the theme of the ‘radical passivity’ of the subject. Indicatively, the opening chapter ‘Another Experience of the Question, or Experiencing the Question Other-Wise’ by Sylviane Agacinski turned that question from one of ontology (subjectivity is . . .) to that of witnessing the weakness that remains following the demise of the self-present subject.3 The important theoretical question, she argued, was not that of ontological philosophy; not: who or what takes the place of the autonomous and reasonable man of action, but, rather, how it becomes possible to address such a question to some-one in particular.4 In other words, to ask the question of the subject otherwise than as autonomous actor requires an openness to the experience of weakness.5 The search for the ‘subject of weakness’ is also the search for the other to

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the virile subject of social contractarianism and modern law – the ‘naturally’ free individual understood as both legislator and subject to the law – the subject of property and responsibility that is constituted in the languages of autonomy and of power understood as capital. It is a search that has been taken up by critical jurisprudence as a means of subverting the metaphysics of self-presence in modern legal doctrine and political philosophy and, thereby, of exposing how these construct the individual and collective human actions and responsibilities they purport to take as their object. In critical legal circles this search continues to date.6 The other to the virile subjectivity of modern legal doctrine and political theory that this search exposes may be that of psychoanalysis, that is the subject of infantile desire who constantly bounces off the ‘wall’ of the Real. It may also be that of Levinas’s ethics as first philosophy, that is the self as ‘ethical subjectivity’ – which is constituted anarchically in being at once ‘persecuted’ by what is absolutely other than itself (namely, in remaining exposed to alterity: more than what she can adequately represent or even sense) and obsessively, infinitely, responsive to particular Others7 (namely, concrete other beings which are approached as if absolutely other). The subject of self-presence presupposes the mastery of consciousness over its environment – it is an ego, a conatus or ‘I’. Levinas’s ethical subjectivity, by contrast, is written as ‘me’ in the accusative to signify the excess of otherness over the sovereign ‘I’. In fact, in Levinas’s scheme, ethical subjectivity refers to a pre-conscious, non-intentional, state of affectivity in which the very distinction self-other is not yet established (hence it is distinguished from the ‘ego’ both as self-consciousness and as ‘the unconscious’). This self is not, however, located as chronologically anterior to the ego but rather as the weakness or defectiveness of the ego in the instant present. While, therefore, persecution and obsession are the modes of the Levinasian ethical subjectivity, these do not signify a content of consciousness gone mad, rather, they designate a form in which the ego remains an ego albeit it is modified: it is excessively affected without being overrun and is inspired to act in excess of what an ego can do or even aspire to do. In sum, Levinasian ethics is not about transcendence but about defective immanence. As Levinas put it, the me appears only ‘in the form of an ego, anachronously delayed behind its present moment, and unable to recuperate this delay – that is, in the form of an ego unable to conceive what is “touching” it.’8 In these circumstances, any particular Other appears to the ego not only as if irreducibly other but also as awesomely ‘higher’, shocking the ego into a relation with itself that is radically passive (a passivity unopposed by activity). Still an ego but now stunned, speechless and humbled, unable to be for-itself even as this is its destiny, the ego is now opened up to the dimension of being-for-the-other where selfreferentiality (Levinas calls it the ‘Same’) is interrupted just as it is affirmed. The me, then, connotes the ego as constituted in persecution and obsession by alterity as holy which signifies concretely in the face of the Other. Thus,

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Levinas broke with the mind/body dualism of the philosophical traditions wherein man is either absolutely free in his relations with the world and the possibilities that solicit action from him (idealism) or mere prey to material needs (reductivist materialism) without positing a transcendental God. His, then, is a materialist metaphysics wherein being is neither free spirit nor bound matter but an existent that experiences the absoluteness of material existence dramatically, as an unbearable ‘burden’ or a contract into which she never entered but from which she aspires, unendingly as well as impossibly, to flee. Characteristically, from his first works Levinas analysed Heideggerian Dasein in the mode of nausea vis-à-vis its having-to be or not be; to this he correlated an existential desire to escape nausea which can neither be realised in hedonism – when the ego temporarily loses sight of itself by becoming ‘one’ with the object of enjoyment – nor in the anxious work of Heidegger’s being-for-death. Indeed, what Levinas called nausea results from the fact that there is (il y a) being and non-being. The absolute horror and nausea of the there is is being’s most intimate experience well before others appear (thus, Levinas’s nausea is quite dissimilar from Sartre’s): it forms the necessary background of existence. In fact the horror is mitigated in the inter-subjective encounter. Face to face with others the absolute horror is re-experienced in a mitigated form: as the possibility of murder. If realised, murder returns us to horror. It is only in being against murderous violence even, indeed especially, if murder is rendered impersonal as in the Holocaust, that the horror of the there is is sidelined. This is the basis on which Levinas posited a subject that cheats nausea. It is as subject of sensibility against murder, of exposure to the Other as if absolutely other and ‘higher’ that the ego’s actions and omissions acquire a dimension different than that of their causes and effects. Another side to existence as labour and rest is evoked: attentive vigilance and sensitive awareness. These, apparently, qualify what each of us says and does (or not) irrespectively of any rational coordinates and/or unconscious structures but nevertheless in a manner which concerns each of us uniquely as a singular existent. In short, being is presented by Levinas as defectively absolute and selfreferential due to alterity brought to bear on us in our inter-subjective relations. Thus, Levinas, who accused humanism of not being humane enough,9 attempted to recover the dramatic character of existence from the idealist conception of human freedom which modern liberalism renamed autonomy of reason and which Marxism exposed as illusory.10 Levinas joined Marxism in rejecting this view of freedom: ‘[B]eneath the melancholy of the eternal flow of things, Heraclitus’ illusory present, there lies the tragedy of the irremovability of a past that cannot be erased, and that condemns any initiative to being just as continuation. True freedom . . . would require a true present.’11 Yet, monotheist Levinas was unimpressed by the tragic dimensions of Marxist thought. Greek tragedy captures the burning feeling of natural powerlessness that man experiences in the face of time, but only as curse,

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without rebellion. In so far as Marxism allowed the body to obscure what Levinas called ethical subjectivity or me, it was Greek tragedy showing man at the mercy of matter. But in so far as it is rebellious, Marxism loses this tragic character and comes close to Levinas’s idea of what it means ‘to have a body’: identifying with it fully and yet, at the same time, ‘tolerating it as an object of the external world’;12 albeit fully embodied, the existent is rebelling, desperately, against pain: ‘[d]oes not rebelling spirit remain ineluctably locked within pain?’.13 Levinas was convinced that nowhere else than in monotheism does this rebellion register better. His beloved Judaism does not pretend that history is not a limit to freedom; but it bears the message that in remorse, namely ‘the painful expression of radical powerlessness to redeem the irreparable . . . [T]ime loses its irreversibility. It collapses at the feet of man like a wounded beast. And he frees it.’14 Equally, participation in the Christian mystical drama of the Cross and the Eucharist present man as freely accepting life – previously just a duty – and able to terminate the forced ‘contract’ to which he is now a free party. Locked and yet free to rebel . . . banging on doors behind which lies nothing, Levinas’s ethical subjectivity seems to me to be continuing in the tradition of Gnosticism albeit acknowledging that there is no escape, not in the after life nor even in Heidegger’s authentic being-fordeath. It is the ‘banging’ against the doors that Levinas elevates as the source of his ethics: neither the belief in liberation nor the knowledge of liberation’s impossibility. In sum, his idea of the self that belies the ego makes the most out of excessive human affectivity, sensibility or the capacity to be moved well beyond what deontology and instrumental thinking require, but also beyond instinct and drive. Emotion is thus a surplus to being’s materiality and to its verbality – or the fact that it is always in the process of becoming – but also being’s source of individuation. Even if we all experience similar feelings, no one can undergo a feeling in the place of another. If the modern cogito fails to disappear inside the implacable world of matter which science so meticulously maps, therefore, this is not due to the activity of becoming – be it as representing consciousness, where reason becomes important, or as all that that is referred to as ‘the unconscious’ where the priority of feelings over reason is registered. ‘Pure’ philosophical reflexivity – unconnected to desire – cannot become a refuge for the same reasons. For him, rather, the ‘secret’ of subjectivity’s persistence lies in the strange existential situation of ‘radical passivity’ which is not affected by the opposition activity–passivity. He called this the experience of non-indifference of the finite self (self-presence, consciousness, egoism, need, and mimetic/possessive desire) to the infinite.15 Thus Levinas pointed to a de-posed, de-situated subject that nonetheless remains irreplaceably astonished or dumbfounded by the idea of absolute otherness and infinity. If it is ‘unique’, it is only in that sense, of irreplaceability. This is the subjectivity of the subject of ethical responsibility.16 Consider Levinas’s notion of ‘useless suffering’.17 It exemplifies the afore-

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mentioned in-clusionary relation of the finite to the infinite whereby the former, paradoxically, contains the latter without assuming it under its intentions or matching it with its own sensations and feelings. Suffering signifies an undergoing in excess of pain; it is the mode in which being comes closest to the: ‘. . . evil of passivity . . . [T]his passivity – as a modality of being – signifies a quidity of being, and perhaps, a place whence comes the original signification of passivity, independently of its conceptual opposition to any activity . . . In suffering, sensibility is more passive than perceptiveness; it is pacification and ordeal that tries experience.’18 In this sense, suffering (be it an illness or a responsibility) is not conducive to a unified experience of a self-same sensing/intending unit but, instead, signifies subjectivity as the unique site of the defeat of intentionality, be it as simple sensation or representation. The ‘sufferer’ is not one as a psychophysical unity but as the non-interchangeable site of passivity (for no one can suffer in the place of another or expect another to suffer instead of him or her). Thus, the individuating effect of suffering cannot ultimately be described in subjectivist, psychological or biological terms. It is more accurate to say that one suffers ‘despite’ oneself, whereby the capacity to experience fails consciousness and one is said to undergo an impact without internalising it as sensation. In the end, Levinas goes as far as to claim that the interchangeable subject (of consciousness, pleasure, need, pain, courage or despair) must tolerate the fact that the uniqueness of its existence can only proceed from the non-shareable undergoing of passivity in absurd suffering and, moreover, in guilt for such suffering when it occurs in another. Indeed, the drama of surplus sensibility to being and becoming could not be manifested but to the extent that absurd suffering, with all its horror, is lived in the modality of the inter-subjective relation. My suffering is my problem alone – in fact, when suffering intensifies to the point of utter passivity, it is not even my problem anymore, as by then I am collapsed into an insensate and unconscious state before death. How, then, does the horror of absurd suffering – despite oneself and yet uniquely – transform into an opportunity for being for suffering other than mine, in the form of being for the suffering of my Other, in substitution? Neither in empathy nor in an interest to cure, both of which are measured by experience and knowledge, but in the proximity of face-to-face. To be exposed to absurd suffering without being consumed by it requires me to invent for myself a sense of responsibility for the Other’s suffering irrespective of whether I caused it, can comprehend it or cure it. Indeed, for Levinas, the fact that suffering is absurd poses the primordial and inevitable problem with succour as my duty. The horror (le mal) of absurd suffering (extreme passivity, impotence, abandonment and solitude) is also the:

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‘non-assumable, and therefore, through its non-integration in the unity of order and of sense, the possibility of there being a surety, a cover [une couverture] over a complaint, a loud cry, a groan or sigh, [as] original call addressed to me to provide relief, assistance, to come to the other’s aid.’19 This is an example of how, in Levinas, the ethical situation of responsibility is not a tautology as in much of moral philosophy, namely it is not comprehensible on the basis of an ethics, but ‘arise[s] from . . . non philosophical experiences, which are ethically independent.’20 Hence, Levinas avoided answering the questions of ‘who’ and ‘what’ comes after the subject of self-presence, with which this introduction started, and yet claimed a sense of responsibility. Instead of analysing how the subject ‘experiences’ the immanence of suffering (for example as ‘extreme’ pain or suicidal desperation, orgiastic joy or self-destructive shame), or how it suppresses such suffering (for example drug abuse, melancholia, anger, hate), he sought to articulate how the self remains non-indifferent towards sufferings that it cannot totally embody or make its own. This is a question of being for suffering – not: being-for-death; of sensibility – not: anxiety; of exposure to suffering, of witnessing suffering that can neither be understood nor empathically shared. It is a question of exposure to useless, absurd, nameless suffering from a position of passivity and disinterestedness but also with a disposition towards demanding/ providing intensive care. Such disinterested intensity cannot be just a matter of self-care. For to suffer guilt and responsibility for not being able to suffer in the place of another is also to undergo an exposure to exteriority that cannot be internalised through thought or sensation. In Agacinski’s terms, the question of the subject as pure me of responsibility, or as pure other to self-consciousness, is one that catches me ‘. . . completely unaware . . . or tears me away from myself (as one could say, for example, about being called by God, or about a cry of distress, or about a chance event)’.21 Of course Levinas’s approach to individuated suffering and the responsibility it occasions as respectively absurd and anarchic/obsessive makes awkward reading for the modern jurist and political theorist. Private law cares for individual suffering only when it is measurable, comparable and attributable to agency. Political discourse too has always ignored the fact that individuals are afflicted by and obsess over intolerable situations in excess of and irrespectively of whether these can be represented or empathised with. Instead, politics from Greece onwards focuses on the problem of salus populi, the imprecise notion of the collective good that ranges from safety, health, abundance, welfare to, ultimately, salvation, around which the state structures its function and in the name of which it demands ultimate allegiance and the monopoly on sacrificial power. Exceptionally, in modern public law, we catch a glimpse of the uniquely suffering but non-self-identical subject in strict liability where responsibility for suffering is disconnected from agency and

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causation.22 Here the law is, for once, concerned with suffering conceived as something broader than ‘harm,’ that is as an unacceptable event of suffering – as a scandal that does not threaten the collective but is a scandal nonetheless. Moreover, it is concerned with the significance for responsibility of suffering per se and not of suffering as detriment to life or as precursor to death.23 As Posner wrote, strict liability makes law a more effective metaphor of ‘. . . the external world that bears down on people and ruins their dreams.’24 At the same time, however, strict liability, by virtue of its strictness and its exceptional application, cannot compensate for humanist liberal law’s general indifference towards legally and politically useless suffering (suffering that is deemed accidental, natural or coincidental, collateral of lawful action) and the guilt for suffering that one has not caused – in sum, proximity to suffering that is normally thought as insignificant.25 Moreover, apart from the occasional comment on strict liability, even critical legal theory does not take radical passivity as its starting point in order to theorise the subject, as Levinas did, otherwise than as a perishable psycho-physical ‘unity’ and yet as uniquely affected by absurd suffering – presumingly for fear of succumbing to subjectivism. In my view, however, the fear is unfounded as far as Levinas’s notion of subjectivity is concerned, for in his account the duty of succours is derived not from an analysis of how ‘I’ and/or ‘you’ suffer but, rather, from how it suffers. By ‘it,’ I first refer to Levinas’s ethical sense of a unique but inessential subjectivity that is radically passive and so otherwise from interchangeably egoistic existence (being-for-oneself ) and from mere nothingness (non-being). One is interested in exploring how the non-sense of one’s suffering is transformed into the meaning of another’s disinterested guilt and responsibility or, alternatively, it is repressed leading to emotions of love of weakness or disgust with suffering. In a second sense, the ‘it’ can be used in Gilles Deleuze’s way.26 For Deleuze, new variables in space–time alert us to the need to refer to a non-personal, abstract, mathematical singularity to replace those of object, soul and the ‘split’ modern subject (half universal ‘I’ – half individual ‘me’, half legislator, half legislated). This new singularity would not stand in opposition to the universal, as the notion of ‘person’ has, but would signify an ‘event.’ Marrying it with Levinas’s terms, the search for such an event of individuation would refer to the ethical subjectivity, or to the pure ‘me’, which acts counter to intentionality in approaching obsessively, prior to any commitment, every scandalously suffering ‘naked’ Other as if ‘the one for me and my responsibility’. This Other, in short, is not approached as unique after being chosen from other Others on the basis of characteristics, traits and feelings. The ‘me’ takes the Other as its Other on the basis of no ‘hard facts’ that science or anthropology could describe and not even on the basis of any ‘hard’ feelings of the sort that Lyotard proposes.27 Therefore, the process of approaching the Other’s troubles as my responsibility would be as anarchic as the Other’s troubles are ultimately absurd. The sense of this ethical post-subjectivist ‘it’ connotes the Other as unique but inessential

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sufferer and me as unique but only in so far as I venture ‘outside my self ’, for example, in response to a cry. It is best captured in events where the subject’s strength and self-presence are explicitly ridiculed by the impact of absurd suffering. Graphic examples are easy to find, more than anywhere else in relation to health and illness: think of a vegetating or anencephalic being who is taken to suffer despite the absence of sentience or, conversely, of a sufferer of ‘phantom limb’ pain. The only subjective meaning that is appropriate in relation to such kinds of suffering is clearly no other than that of the succours and relief offered by others. These, however, are only graphic instances of a general truth regarding ‘useless suffering’ and the ethical if gratuitous imperative to offer succours literally ‘for nothing,’ both of which are irreducible to subjectivism. Levinas’s formulation of an an-archic responsibility is particularly important given post-structuralist theory’s extreme scepticism towards all truth, liberal and Marxist. A theory that seeks to be thoroughly reflective, refusing the temptation to offer charity or recommendation and to encourage the kind of rebellion that, over the centuries, has caused as much suffering as it sought to remove. Levinas recognised that ‘skepticism is a basic possibility for the Western spirit’.28 But, in ‘Reflections on the Philosophy of Hitlerism’, he warned of the danger for a society in which ‘man revels in his freedom and does not definitively compromise himself with any truth’ and ‘. . . transforms his power of doubt into lack of conviction’; and ‘[T]ruth is no longer . . . the contemplation of a foreign spectacle; instead it consists in a drama in which man is himself the actor. Chained to his body, man sees himself refusing the power to escape from himself ’ which means that man wishes to dwell in the nausea of existence.29 The danger, in my understanding, is that as man’s freedom becomes ‘not wishing to commit his own self to the creation of spiritual values . . .’,30 sincerity and heroism become impossible and it is ‘under the weight of his whole existence, which includes facts on which there is no going back, that man will say his yes or his no.’31 Man henceforth speaks only as ‘nation,’ or ‘selfish gene’ or ‘population’. Levinas saw this danger concretised in Hitlerism. Hitlerism, unlike liberalism and Marxism, which respectively assumed man’s ability/inability to distance himself from material history, did not refuse the dramatic surplus of man’s existence. Hitlerism took the fact that material needs and the ineradicable plurality of historical values are inescapable as a value in itself and turned it into a justification for fascist fraternity (based on inequality of function) that expands. Levinas too took this impossibility as value in itself but – in a move opposite to fascism – interpreted it as something which concerns each being as shame, as inability to justify its being for itself and its community, exposing it to the infinite and anarchic responsibility for the Other’s lack of essence. Coming back to poststructuralist theory, the danger is that scepticism comes with a sense of righteousness among a fraternity of scholars who, in attempting to rid thought from the totalising litigiousness of subjectivist morality (sense vs emotion,

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Kant vs Hume, universal imperatives vs conventional mores, reason vs sentiments, cognitivism vs non-cognitivism, duties vs sentiments, justice vs careperspective, neo-Kantianism [for example Rawls] vs Neo-Humeans), ipso facto ‘wash their hands’ of the effects of racist and violent politics of expansionism which, from Hitler to Bush, advance at the expense of universality. Levinas did not suggest the means to halt this primitive expansionism. In my view he proposed that the drama of being stuck in immanence be lived not as Greek tragedy but as an absurdist play in which the human subject would be reduced to mere function but for the fact that it suffers these functions uniquely (think of Beckettian characters: they go up and down aimlessly but stumble and fall one at a time); and where the distinction between audience and stage is blurred but for the fact that every participant is exposed to each of the dramatis personae as a ‘higher’ Other demanding attention, even as there is nothing to comprehend and empathise with. Levinas’s ethical absurdism merits our consideration, especially in view of the fact that we are now supremely aware that the humiliations of both liberal man’s free and sovereign posture and of revolutionary man’s paradoxical aspirations to free himself from concrete and servile existence are followed by an avalanche of evidence which suggests that truth concerns only unstoppable operations and impersonal processes that politics can at best manage. Theory instructs us that the concentration camps of the twentieth century, with their banality of evil, instituted forms of dehumanised, desubjectivised existence that is neither life nor death; and they alert us to the fact that this may become a permanent situation, a world of ‘pure politics’. Following Levinas, this world in which life and death are indistinguishable would not be a radically new – manufactured – one but rather one which is newly conscious of the inescapable there is of being which, for Levinas, includes being and nothingness. The question is whether the blurring of the line between life and death (which renders irrevocably passé the ‘authenticity’ of being-for-death) means that man is stripped of the will to suffer existence absurdly yet rebelliously, that is to be deprived not only of the anxiety of being-for-death but also of sensibility of being-for-suffering that is nonsensical. As I risked saying elsewhere, even a ‘zombie’ – the undead without feelings nor thought – can elicit such sensibility.32 To ask whether Levinas’s being-anarchically-responsible-forabsurd-suffering is still operative or not is to ask whether our justified scepticism can escape passing for cynicism. As the remnants of the idea of man are increasingly identified with the indefinitely expansion of the needs of bodies, cultures and communities, Levinas helps us ask whether the seemingly unstoppable operations of capital expansion continue to be undermined – rendered defective – by anarchic responsibility before the suffering, poor, vulnerable but ‘higher’ Other that infinitises an otherwise nauseatingly absolute situation.

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2. Insomnia: escaping jurisprudential dreams and nightmares The stories that jurists and political theorists tell of the ways in which humans relate to one another are not altogether dissimilar to dreams the function of which, psychoanalytically informed theory tells us, is to regulate knowing. Thus, dreams allow us to sleep by imagining a situation that is sufficiently captivating to prevent the stimuli of the real external world around us from waking us; but when a dream becomes too traumatic then the subject wakes up, ‘preferring’ the real world to imagination and in this case the dream is experienced as a nightmare.33 Much of liberal jurisprudence is the stuff of such dreams as it allows us to idealise the positive law and thus avoid realising its real implications. There is a long list of dream scenarios or ideal stories that tell the origins of law in which the limited and exclusionary responsibility of the legal subject is both founded in violence and justified as the best possible alternative to violence. For an example, consider Posner’s reading of Aeschylus’ tragedy Eumenides.34 This play is crucial to Posner’s ‘law and literature’ theory in which literary accounts of social life have been superseded by formal legal ones; reading the classics helps the ideally free modern subject of law to ‘discover’ its pre-legal tragic constitution by means of confronting its ‘essential,’ ‘natural’ emotions.35 For him the play ‘illustrates . . . particularly . . . well the transition from revenge to formal law’.36 In his chapter ‘Revenge as Legal Prototype and Literary Genre’ Posner effectively renders law and literature a footnote to modern political philosophy and its assumptions about the state of nature.37 For Posner, Aeschylus’s play law testifies that ‘originally’ truth is not about order but about revenge. Revenge, in turn, is not linked to anarchy but to a species of primitive social order where ‘natural’ selfish behaviour is crude and ill-defined.38 Finally, formal state law is understood as that which created the conditions in which selfish behaviour would not endanger social cohesion. Posner, therefore, displays a typically modern ‘evolutionary’ understanding of the transition from revenge to duel, to trial by battle, and finally to civilised public law enforcement. And he has a typically instrumental and mechanical view of law: in a world without government and legal system – the world community for example – the practice of revenge complements that of self-protection, but since revenge is always potentially non-efficient, it either gives way to retribution by disinterested persons or else it reappears when an evildoer controls the machinery of law or when public law enforcement is lax. Thus, for Posner the definitive characteristic in the Eumenides is that it links the trial of Orestes to ‘. . . a desire to end the cycle of vengeance – thus making transparent the relationship between vengeance and the absence of regular institutions of criminal justice’ and provides a ‘. . . splendid illustration of the transition from a system of strict liability, enforced by revenge, to one of legal liability based on blame worthiness’.39 Posner’s approach to the Eumenides as a story of

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foundation is an example of how Enightenment man sought to declare himself free of tragedy only by committing to a tragically flawed epistemology. Posner presumes a modern individual that searches and finds its constitution in evolutionary anthropology. He is misleading: the subject of responsibility is constituted in law and has no direct, unmediated access to a primitive past. The subject exists first and then it presumes an essence. Posner’s individual subject is, therefore, (self-) deceiving and actually constituted as barred from responsibility since it finds its actions and responsibilities already authorised by the laws of nature. This realisation brings us to the nightmarish alternative of primitivist dreams like Posner’s. Consider, for example, the story of the man from the countryside before the Law in Kafka’s The Trial, which has become a favourite text of post-structuralist legal theory. This ‘wake-up’ sort of story is almost canonically read in advanced jurisprudence classes as the story of man’s illusionary search for origin and authoritative ground for action that serves to expose him to the real operations of a ‘power’ that is not there (call it Lacan’s Big Other). In sum, this story serves to exemplify how the subject of law is constituted as ideological or self-duped and, at the same time, as a body exposed to the real consequences of the autonomous, symbolic and technological processes that his illusions sustain. On the back of this reading much of legal theory likes to draw and repeat the same lesson: the subject can reflect on but not elude its interpellation by the figure of the law which speaks like this: ‘I, the sovereign, who am outside of the law, declare that there is no such place for you outside of the law.’ The above pair of narratives suggest that in thinking our relationship to ourselves and others, our alternatives are clear-cut: either to ‘sleep on’ by dreaming up a freedom that consists in the ideal autonomy of subjectivity as at once legislator and legal subject or to agonise in the clear knowledge that such freedom is nothing but a modern illusion. The conceptual polarity of autonomy vs heteronomy suggests that the individual experience of law and politics, far from being an existential adventure, is but a series of movements between obscurity and clarity, of a false sense of individual freedom and of reflexivity disconnected from praxis. Levinas, by contrast, pointed out that these alternatives are but modifications of a more elementary mode of existence: insomnia.40 Understood as wakefulness or vigilance, ‘insomnia’ is not the simple negation of the natural phenomenon of sleep nor identical to awakening: ‘Ever on the verge of awakening, sleep communicates with vigilance . . . stays tuned in, in an obedience to the wakefulness that threatens it and calls to it, which demands . . . Insomnia – the wakefulness in awakening – is disturbed in the core of its categorical sameness by the other, which tears away at whatever forms a nucleus, a substance of the same, an identity, a rest, a presence, a sleep . . . The other is in the same, and does not alienate the same but awakens it. Awakening is like a demand that no

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obedience is equal to, no obedience puts to sleep; it is a ‘more’ in the ‘less’.’41 It is as by virtue of such insomnia that, in Levinas’s account, ethical subjectivity signifies an affective excess to the ego and opens it up to the dimension of ethics. To say that ‘the other is in the same’ and ‘tears away at whatever forms a nucleus’ is also to say that the subject exists as a defective ego, as an ego that is obsessed by the other, that exists for the other – that is for every particular Other than me who, in this sense, holds me hostage: ‘It is through the condition of being a hostage [to the Other] that there can be pity, compassion, pardon, and proximity in the world – even the little there is, even the simple “after you sir.” All the transfers of sentiment which theorists of original war and egoism use to explain the birth of generosity (it isn’t clear, however, that there was war at the beginning: before wars there were altars) could not take root in the ego were it not, in its entire being, or rather its entire non being, subjected not to a category, as in the case of matter, but to an unlimited accusative, that is to say, persecution, self, hostage, already substituted for others.’42 This idea is not altogether alien to psychoanalytical theory which interprets dreams on various levels. Taking Freud’s dream of ‘Irma’s injection’ as an ˇ izˇek notes that it first expresses Freud’s ‘superficial’ conexample, Slavoj Z scious and unconscious desires respectively not to be guilty for the failure of patient Irma’s treatment and to be the ‘primordial father’.43 There is, however, a deeper desire at work: to ‘absolve his friend and collaborator Fliess ˇ izˇek interfrom responsibility and guilt’ re Irma’s failed treatment. In sum, Z prets dreams and nightmares as not only manifesting the dreamer’s desires, but also as evidence that a more primordial desire is at work: the desire of a significant other (‘Other’ in Levinas’s terms), who is Fliess in the case of Freud’s dream. The question our book poses is precisely whether in our haste to distance ourselves from the myth of the ‘autonomous’ subject of modern law and politics, we may be neglecting to theorise the degree to which ‘insomnia’, ‘vigilance’ and ‘being hostage to the other’ produce real empirical effects irrespective of how badly we overestimate subjectivity. Relevant here are Levinas’s notions of ‘non-intentional affectivity, ‘anarchic responsibility’ for the Other, and ‘Desire’ of the other which are irreducible to the pair conscious action/unconscious repetition. By equipping us with these notions, Levinas may have pointed to a situation where our responsibilities to one another might escape both the comforting ‘foundational’ stories we tell about the origin of our limited responsibilities to each other – which allows us to think ourselves ‘free’ while we inauthentically sleep the ‘sleep of the just’ and remain indifferent to the realities of pain and suffering; and the situation whereby our excess affectivity for the pain and suffering of our significant

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Others is experienced only as an unbearable nightmare: we cannot aspire to responsibility for each Other that would not be limited and shaped in advance by history and, therefore, we can only repeat the patterns of inter-subjective relations that produced the pain and suffering in the first place. The stories told above exemplify this limited choice. Posner helps us sleep while Kafka awakens us to an unpleasant reality. Arguably, the danger with exposing deceptions is that we may be tempted to canonise the nightmarish reading of reality. This amounts to scepticism turning into cynical immanentism, in which case theory is reduced to an account of the inevitability of totalitarianism. In Levinas’s words, this is the danger of negating deception without ‘. . . the negation of the negation becoming an affirmation’.44 Thus, the story of the peasant ‘before the Law’ becomes the story of post-modernity characterised by ‘trembling’ – a situation whereby a necessary impasse is categorically mistaken for the necessary cause of ethical paralysis. If the only meaning of being ‘before the Law’ is that we are already and entirely interpellated by the positive laws that reflect and sustain historical injustices, then the role that the metaphysics of ‘origin,’ ‘foundation’ and ‘essence’ used to play in absolving us of existential responsibility is, with the end of metaphysics, now played by a philosophy that is reduced to pure reflexivity over man’s gradual replacement by impersonal processes of economy, technology and management, namely a purely inhuman politics. The Kafkaesque jurist here speaks to the situation wherein man, as Levinas put it in the ‘Philosophy of Hitlerism’ that I referred to earlier, sees himself refusing the hopeless desire to escape from himself, withdrawing from resistance and compassion. No recommendations are issued, no promises given. In this regard there may be a complementarity between this melancholic, self-effacing withdrawal and the present manner in which the sovereign speaks, summed up by Condoleeza Rice when announcing that the US administration would veto, at the UN Security Council, not only any attempt to hold the parties in the 2006 Lebanon bombardment responsible for disproportionate use of force but even to call for a ceasefire: ‘we refuse to issue a false promise of peace’ she said. This is remarkable, partly because it shocked the sort of positive lawyer who had come to accept that while politics cannot be held accountable for the content of its decisions (a situation that we had become accustomed to as domestic and international courts, respecting the ‘separation of powers,’ would not find ‘justiciable’ issues of sovereign policy and would defer the substance of human rights to the State), it could at least be held accountable for the proportionality of the means employed compared to the sovereign objective. More significant, however, is the pragmatist rhetoric: a ceasefire was ruled out, not as suspension of war, but as an irresponsible promise of false peace that will perpetuate the politically undesirable status quo. As Adorno put it, ‘He over whom Kafka’s wheels have passed, has lost for ever both any peace with the world and any chance of consoling himself with the judgement that the way of the world is bad.’ The popularity of this reading of

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Kafka’s story and the prolific writing it keeps inspiring, however, indicate not so much despair in the aftermath of the successive deaths of God and man, as desire. If despair had really taken hold, theorists, like Bartleby the Scrivener in Herman Melville’s story, would ‘prefer not to’ produce work that carries their names. The desire to take a personal position in speaking and writing is not exhausted in theorising the role of the law within what social theorists describe as our thoroughly reflexive society in which, even as there is no longer a Nature or Tradition to rely on, every aspect of life is experienced as something that has to be learned and decided upon by the wretched ‘individual’, namely the bare life of an individual body that the law interpellates as ‘autonomous’. Is this the desire of ‘authentic’ existence? It would be but for the fact that these theorists are melancholy, agreeing with the view that in our techno-universe authenticity and subjective ek-sistence are rendered impossible. Thus, the non-despairing but self-styled ‘pure’ theorist – the one who revels in his freedom to reflect on the impossibility of escaping the Law – occupies a privileged position vis-à-vis the predicament of man before the Law. On the one hand such a theorist turns his back on the delights of sleep and prefers to be awake in order to reflect on himself as a ‘man before the Law’: in the context of a liberal democracy where the state sponsors free thought and in fact demands (with quotas!) academic productivity, the ‘pure theorist’ speaks and writes on the impossibility of escaping the Law that binds us to the real operations of imaginary power, not only because he can, but also because he too must exist symbolically, and he does so in his own way, still craving symbolic investiture from power ‘as the one who knows that power does not exist but for our need for it’. On the other hand, however, this manly pure theorist presents himself to his readership as a virile dinosaur, a persistent idealist relatively detached from this predicament in indifference to the compromising pathos that drives ordinary men to search for an origin of Law that would render meaningful their resistance to the law. In this regard, the suspicion arises that the theorist plays the role not of the ‘man before the law’ but that of an honest policeman who, modifying Kafka’s story, does not guard the palace of power directly anymore (he does not need to since he already told the subject the terrible secret: the palace is empty, the king is naked) but indirectly, saying to the man seeking access to the ‘original source’ of law: ‘there is no such source, but while you can know this, you cannot act anarchically or you will perish’. Thus, every time a lecturer retells the story of the peasant before the Law to his students, another Kafka short story is being rehearsed: ‘Give it Up!’ All of us are totalised as before the Law, but an intellectual elite is more equal as it discharges exclusively the function of keeping us in our place. Can one tell Kafka’s parable about being before the Law without becoming the policeman from ‘Give it Up?’ Levinas’s notion of ethical anarchy before the Other might suggest an answer. As Schroeder notes in this volume, anarchy results in an interruption of essence, preventing the closure of the

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said, the ultimate end of metaphysics, of philosophy, and consequently of politics having the final say. This notion of interruption is crucial for preventing what Levinas identifies as the totalisation of being, or what LacoueLabarthe and Nancy term immanentism. If Levinas’s ethical anarchy interrupts both the dreams of man as legislator and the nightmare of man’s inescapable interpellation by the Law, this is not a question of asking the peasant in Kafka’s story to go back to his village and dwell in idyllic intimacy where his dwelling is supposedly fore-given, without law. In this case, being would be once again totalised: either as an impersonal idiot or as identity within a closed community that sooner or later will seek to expand. Indeed, as many contributors to this volume show, Levinas does not suggest that the proximity of the face-to-face is an idyllic island, a sort of a ‘lawless natural habitat’ protected by the laws of a particular community. As Alford shows in this volume, the ‘state of nature’ in Levinas is a ‘homey image’ that depicts not only ‘nature’ but also civilisation and its discontents. Nor is it a question of asking the peasant to stand authentically before limits, as being-for-death, in order to compromise the sovereign’s threat to his life. As I note in Chapter 10, the state’s killing force is today exercised increasingly without the law; and its power to bind life goes beyond the threat to life towards the production of life. Consequently one is either human waste (the product of others’ expansionism, be it the starving majority or those in the sated North who crumble under the demands of consumerism) or someone who embodies an obligation to be without the right to be (the one who must follow a ‘healthy lifestyle’ but can be thrown into a jail or killed without due process). Therefore, the challenge of Levinas’s ethics is to show itself capable of responding to the kind of theory that understands social reality as produced by pure politics and management by impersonal forces (economy, technology etc.) and to expose the dramatic manner in which even a subject reduced to pure functions (like a computer game player) experiences its existence (computer games are exhausting . . .). In other words, the challenge is to show whether/how being in contemporary conditions continues to be ‘hostage to the Other . . . subjected not to a category, as in the case of matter, but to an unlimited accusative, that is to say, persecution, self, hostage, already substituted for others.’45 The task is to look for traces of excessive affectivity that has empirical effects yet never enters historical time. For example, a different reading of the Eumenides to that of Posner’s above is possible. The economy of the story of the ‘first ever criminal trial’ presupposes Aeschylus’ silence on a crucial point. In Greece, criminals like Orestes, sent into perpetual exile, constituted an exception not only from the norms of the city in which they committed the crime, but also from the pan-Hellenic divine law of hospitality (philoxenia or the love of strangers) – let us say they were the Greek primitive version of the Roman legal institution of Homo Sacer.46 Because Orestes was so ‘polluted’, all proximity with him was dangerous and thus, at the beginning of the play, the Athenian public wants him turned away from Athens, not tried. He was

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so disgusting that no one could face him and even less ‘cleanse’ him from his pollution by means of ritual sacrifice (not even the Gods: it took the god Apollo’s ‘coup’ against the Erinyes to perform such a purification in Delphi, and even that was later contested in court as invalid purification by the Erinyes). Orestes’ response to this anxiety is to emphasise that whilst in exile he had been received by many ‘others’ and that he had travelled, not as a wild animal but ‘in the travelled paths of men’.47 This happens before the play begins to describe how Apollo and Athena used persuasion to convince the Athenians, first that Orestes deserves to be given a trial and, second, that he be acquitted because his mother’s crime was ‘worse’ than his. Arguably, the question of polluted Orestes’ admissibility to Athenian society was not answered by the arguments of Athena, which address the ‘secondary’ issue of Orestes’ innocence or guilt by making the misogynistic claim that matricide is less polluting than patricide. Critical jurists have analysed Athena’s misogynistic argument as founding a law for which justice is impossible and violence concealed.48 But Levinas’s claim that ‘justice [by which he means an unethical law] . . . is born of charity’49 is instructive here. The trial becomes possible only because Orestes had undeservedly dwelled and been welcomed by anonymous others during his exile: anarchic welcoming and dwelling make the story of the origin of law possible. Orestes can appear before the Law because in his wanderings from Argos to Athens, in exile, without a community, reduced to ‘pure life,’ he was welcomed by anonymous others who cared for his poverty and destitution. This is not to suggest that we need to reverse Posner’s view of the ‘fundamental emotion’ for legal genesis substituting empathic charity for revenge nor to suggest a Christian reading whereby the obligation to forgive trumps law’s rigour.50 The point is that, given Aeschylus’ silence, we are unsure if the welcoming others knew anything about Orestes’ crime at all and indeed whether they even bothered to ask him why he was in exile. The welcoming others, therefore, can be said to have displayed a nonintentional sensibility towards and obsessive solidarity for the Other and, ipso facto, an irresponsibility towards the victim of his of matricide. In this volume, Chanter claims that by presenting the ‘feminine’ as being’s possibility of dwelling and hospitality, Levinas ‘abjects’ women, forcing them to the status of the being that has to welcome the masculine but is not herself worthy of being protected as the Other. This is a valid point. If obsessive responsibility for the Other is at the same time an irresponsibility towards the Other’s Others, then obsessive responsibility does not just occasion the faceto-face but also acts to bring the ethical subject before justice, or before the law. In my view, Levinas’s ‘sin’ in this regard is analogous to that of misogynistic Athena. He presented the ‘feminine’ as being’s possibility of dwelling; she presented killed women as the possibility of political justice. But neither ‘sin’ extends to Orestes’ anonymous others who, in offering hospitality, may be imagined to have acted obsessively, anarchically, entirely disinterested in justification.

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3. This volume There is no doubt that Emmanuel Levinas’s reformulations of the legal and moral conceptions of responsibility and of theological conceptions of the good have influenced post-structuralist thought. Political and legal theory, however, have only marginally profited from his ethics as first philosophy. The main difficulties derive from the theoretical weakness of the passage from his ethics to politics and law and his limited understanding of both ‘law’ and ‘politics’.51 The weakness concerns his apparent ethical formalism and his narrow conception of the political as the realm of le tiers – that is the third party to the ethical relation – because of whom there arises a necessity for justice as measurement and comparison of responsibility. While Levinas remained quite laconic on the relationship of law to the ethics of alterity, what little he did say clearly suggests that he thought of ‘law’ as a positive, codified, rule-bound structure within the state. As for politics, Levinas unfortunately insisted on treating the ethical realm, in which responsibility is asymmetrical and infinite, as entirely ‘incommensurable’ with the political realm, in which responsibility is made subject to definite, finite, rules, and moreover is subordinated to the pragmatic demands of the state and social policy. The combined effect of this weakness and these limitations is depressing: firstly, it renders Levinas’s theme of one’s infinite responsibility for the Other vulnerable to romanticisation with the doubly negative result of adding extra ‘ethical’ weight to passé and discredited humanist ideas at the expense of critical theory, and of abstracting critical potential from some of Levinas’s key concepts that, properly developed, can be engaged alongside concepts from anti-humanist theory. Secondly, it implicitly renders the institution of legality by the state as a regrettable necessity that, in turn, forecloses the possibility of an ethical critique of state law and politics that would go beyond either negation or mere deconstruction. In this connection, Manderson in this volume joins questioners like Derrida, Rose and Habermas who have wondered how it could ever be possible for Levinas’s notion of an ethics of absolute and infinite responsibility towards others to communicate with a political world inevitably governed by regulation on the one hand and constrained by the need to balance and limit our responsibilities on the other. In the chapters that follow, political theorists, philosophers and legal scholars engage critically with these weaknesses in Levinas’s texts. Clearly his formulation of the idea of the ‘Other as the other in me’ does not automatically offer insights for understanding how nationalist, racist, religious and sexist divides operate today. Nor does his notion of anarchic responsibility provide immediate relief for the agony of dealing with matters of life and death. Rather, the rebelliousness of Levinas’s thought is here invoked in a double sense, both along and contra Levinas, in order to perturb and challenge persistent preconceptions of social, legal and individual responsibilities; and to give credit and urgency to the sense, shared by many of Levinas’s critics,

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that this philosopher presented an account of ethics that bears only the most formal connection to the central concerns of political and legal theory in a manner that obscures the degree to which Levinasian ethics can and has been used to promote conservative political agendas, including by Levinas himself. The authors tackle this accusation by developing the implications of his thought for political and legal theories in ways that highlight both its conformism and its rebelliousness. The book is organised around three sets of questions that also function as book sections. The idea is to facilitate understanding by the reader who is less familiar with Levinas’s thought. In Part I authors question the meaning and, more crucially, the difference or overlap of the category of the face-to-face and of ethical individuation by virtue of an infinite desire for otherness compared to other understandings of subjectification ‘before the law.’ Who, exactly, is Levinas’s ethical subjectivity and who is its Other? Who is not? Philosopher Julia Ponzio tackles straightaway the major problem of deriving a critical stance on legal and political theories from Levinasian ethics while remaining faithful to the philosopher’s ideas. How does the ethical relation in the intimate face-to-face concern the necessity of judgment in ‘real,’ multiple society otherwise than as its antithesis as some may be tempted to assume? And, if as Levinas warned, ethics must constantly supervise politics lest politics becomes a tyranny, how are we to make sense of his related suggestion to strive for a politics not left to itself ? For Ponzio, reading closely a number of Levinas’s texts from his middle and late period, this relation is marked by a crucial difference in the understanding of ‘forgiveness’ by Levinas that contrasts with the legal way of understanding it as something that follows and mitigates judgment. For Levinas ‘forgiveness’ (thought of the condition for dwelling, welcoming, generosity etc.) both makes possible and keeps in check the harsh operations of the law. She shows how any judgment – the virile business of stringing together justifications for our actions in politics and law – logically presupposes its impossibility and, therefore, begs forgiveness. To appreciate this idea we need to understand the self and its other not as selfconstitutive identities – as the modern notion of ‘individual’ suggests – but as embodiments of sensibility. Embodying this sensibility is herein explained as the occupying of an ‘exposed position’, namely the carving from existence an interiority for oneself without reason or basis so that, from the start, being recognises itself as unjustifiable and is, therefore, in need of forgiveness. Forgiveness is sought from the Other who, in Levinas’s thought, presents itself in two modalities: either as the Feminine (a term that stands not for sexual or gender difference but for the human ability to dwell in love) or the Third (a term that refers to all those that my intimacy excludes who, by breaking into my intimacy, awaken me to the necessity to re-present myself, namely to think of myself as one of many). In the mode of the Feminine (as sensibility, ‘saying’ or speaking without representation, non-identity, non-totality, dwelling in a present without history and future, as love without justice) the self

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recognises itself as an unjustifiable but forgiven interiority or intimacy. In the mode of the Third (as sense, as the sum total of its statements or ‘said’ that represent it, as dwelling in a present that derives its legitimacy from a past and dictates a future), however, the self seeks to justify itself by connecting its position with a past and a future and, thereby, forfeits its status as unjustifiable but forgiven intimacy. A politics left to itself is a politics where the self is thought of only in the mode of the Third, as if no longer exposed, as if sure of itself and in need not of forgiveness but recognition as ratification. Ponzio presents as prime examples the Kantian ethics of justice and Hegel’s ethics of recognition. In either case, she shows, the demand for just laws and a politics of recognition are purely rhetorical, because Kantian and Hegelian man is assumed as already justified, and, ipso facto, unforgivable. As such, man is given to judgment according to universal rules and is thus judged in absentia, deprived of the freedom of speech despite appearances to the contrary. For Levinas, Ponzio explains, truly free speech requires the ability to occupy an exposed position, a position of sense-less sensibility, demanding recognition without justification: that is, forgiveness. Marty Slaughter, a linguist and legal historian and sceptical Levinasian reader, also focuses on the Levinasian idea of forgiveness, but her task is to expose it as a particular position within the institutional and aesthetic history of religion, politics and law in the West since the Middle Ages. Her striking thesis – well supported by a plethora of academic arguments on the subject of Levinas’s uneasy relation to aesthetics – is that his idea of a vocation of compassion, as that which both makes formal legal justice possible and devastates it, basically replays the difference between the ‘sublime’ and the ‘beautiful’ in aesthetics. She argues, moreover, that in privileging the ethical moment of compassion over the rigours of the legal decision, Levinas shows himself to be both Christian (notwithstanding his engaging Talmudic narratives) and nostalgic for pre-Reformation ecclesiastic justice when divine justice and mercy were conceptually inseparable, that is a situation opposite to what we experience ever since the Reformation. Her argument is rehearsed through an engagement with Levinas’s known antipathy for art as representation combined with his less known love of the kind of art which, in his view, performs the ethical when it does not seek to seduce the spectator but engages her sensibility in a way that preserves alterity. Having clarified that not all art is ‘unethical’ in Levinas’s account, Slaughter then evokes Levinas’s turn towards a corporeal Other that signifies suffering and demands compassion as evidence of functional similarity between his idea of the ‘face’ and Christian devotional art. It is here that Slaughter’s argument becomes the more forceful, if not devastating, for the possibility to continue to say, with Levinas, that ‘justice derives from mercy’. Through a detailed narration of the many transformations of devotional art, she shows how, alongside the Reformation’s privileging texts over images, devotional art became, at one extreme, increasingly formal and, at the other (the Gothic), hyperbolic.

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Levinas exemplifies both these tendencies in, first, being suspicious of sensibility and, later, allowing for an ‘ethical sensibility’ provided that it is obsessive rather than sentimental. Slaughter warns that, as the operations of legal justice in modernity have (irrevocably?) become a matter of formal – inhuman – representation, Levinas’s insistence that compassion and forgiveness are the ‘other side’ of strict public law may be misleadingly nostalgic. Worse, it may be reinforcing the dangerous doctrinal view of equity as the ‘supplement’ to legal justice. Part I ends with another sceptic casting an eye on Levinasian generosity. In her piece ‘Hands that give and hands that take’ philosopher Tina Chanter puts Levinas – quite literally – where his mouth was. According to him, the very operation of thought is consumptive, devours the other. Chanter uses the strong language of abjection in order to bring to light a hidden digestive economy in Levinas’s texts whereby certain others – here, women and the Palestinians – are marginalised, apparently not worthy of appearing as Levinas’s Others. Worse even, they are ‘cannibalised’ and then expelled by Levinas in the sense that his discourse of generosity would not operate but for their abjection. Starting with women, Chanter argues that in order to function, Levinas’s ethics-as-first-philosophy requires the idea of the feminine as welcoming par excellence, but requires that it remains inarticulate. After clarifying that the ‘feminine’ cannot not be bound to corporeity (lest the hands that are supposed to give are empty) and arguing contra Levinas’s existentialist qualification of the ‘feminine’ as concerning being in general, Chanter claims that the association between the ‘feminine’ and the sphere of domesticity, passivity and invisibility to which women have been forced is neither accidental nor innocuous. She alerts us to the possibility that Levinas is indirectly re-dehumanising women by pointing to his use of the figure of Antigone as the exemplary embodiment of the ‘feminine being’ who performs the unmarked, discreet role of mediating between (masculinised) humans and the divine. Chanter follows a similar strategy in pointing to the absence of the figure of the Palestinian in Levinas’s texts. The invisible Palestinians who, therefore, never feature as Levinas’s destitute Other, nevertheless appear to have to welcome Israel – in order to be called ethical and indeed human. Devastatingly for anyone wishing to sanctify Levinas, Chanter reads this implicit linking of forced generosity with Palestinian humanity as tantamount to the construction of a racialised woman who ‘must offer hospitality’. Chanter, further, finds parallels of abjection in the thought of Freud and Levinas. Does not Freud’s narrative proceed from orality/narcissism to the realisation that autonomy and completeness are illusory to, finally, the realisation of autonomy, at least to a relative degree, through the abjection of the mother? There are indeed similarities with Levinas’s narrative of the ‘progression’ from the situation where an existent naïvely pursues its happiness, in apparent oblivion of the fact that there are people in the world who are hungry, to taking the ethical stance in the mode of obsession until ‘the

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other’ is no longer other but my Other. In the event, Chanter points out, marginalized women and oppressed, dispossessed Palestinians did not qualify as absolutely others for Levinas’s masculine and sexist ‘I’ but only as abjected ‘welcoming mothers’ that helped constitute his philosophy. Her piece ends as a cautionary tale by demonstrating that abjection operates in the work of Fanon, too, another politically radical critic of phenomenology. While pointing out the racism of phenomenology Fanon re-instantiated its sexism. In a similar way, just as Levinas uncovered the abjection of certain others in Heidegger’s philosophy, and in western philosophy in general, he performed an abjection of other Others. Must we exclude Others in order to be who we are? Chanter does not answer this question but, she emphasizes, neither did Levinas. In Part II authors explore the possibilities and the dangers in drawing lessons from Levinas’s ethics for political theory. Cultural historian Howard Caygill echoes Chanter’s anger over Levinas’s silence on the suffering of the Palestinians. Unlike her, however, Caygill finds that the silence was not absolute and that, overall, Levinas displayed an ambivalent position. Through a close reading of some of Levinas’s statements he shows the philosopher’s difficulty in speaking responsibly about the actions of the State of Israel and Palestinian rights. For example, Levinas would acknowledge that the Palestinians are not the culprits of the Shoah but since ‘all men are responsible for all Others’ he implied that ‘conscience’ dictates they welcome Israel; Moreover, while ethical responsibility is non-calculative and non-reciprocal and the horror of the Shoah inestimable, Palestinians were assured of Jewish fraternity if they assumed responsibility for European atrocities; While there is always an ‘obligation to speak’ and ‘Israel’ encompasses both the State of Israel and the Diaspora, Levinas claimed a ‘right to silence’ on the actions of the State of Israel because ‘he did not live there’; while, Levinas begged to differ from Heidegger on the question of ‘authenticity’ (being for death) and the State of Israel is ‘unlike any other’ its establishment is celebrated as a value that is worthy of an ultimate sacrifice, which of course is the most banal aspect of any state loyalty; while, his loyalty to the State of Israel prevented him for condemning this State’s complicity in the Sabra and Chatila massacres, he implied that a Zionism that idolizes the Holy Land over human suffering slanders Judaism. And on it went . . . Ultimately, Caygill calls on us not to lose sight of this ambivalence surrounding Levinas’s speech. Levinas’s ‘risky, unsubstantiated, exhortations in favour of Israel’ comes close to the attitude of responsibility with which one must approach prophecy – ‘one that neither trembles nor blindly affirms’ – and is preferable to silence. Not losing sight of this ambiguity, philosopher Simon Critchley is concerned to analyse how it is obscured by the apparent formalism of Levinasian ethics. His starting point is that politics is Levinas’s Achilles’ heel. If the received wisdom in eulogistic Levinasian commentaries is to dismiss this weakness by reiterating Levinas’s strict separation of ethics and politics (a

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wisdom that Levinas’s himself authorised with his frequent use of ‘allergy’ as the key metaphor for the relation of ethics and politics), Critchley subverts this separation. He identifies five ethico-political problems in Levinas’s philosophy: fraternity, monotheism, androcentrism, the family and Israel. Problematising these as aspects of Levinas’s praxis, allows Critchley to suggest a way to appreciate Levinas’s ethics otherwise than as congenitally compromised by his limited conception of politics and, therefore, as useless for political theory. The problem is not merely the formality of Levinasian ethics but the degree to which it masks Levinas’s personal prejudices. Critchley works to save Levinasian ethics from these prejudices by suggesting ways to think at once with and against Levinas. He points out two complementary possibilities. The first is sketched on the basis of Derrida’s late reading of Levinas in which he separated the ethical form from political content. This allows us to acquire sufficient critical distance from Levinas’s conservative politics – evinced in the ‘five problems’ – while keeping the formal structure of his thought. In sum, a notion of political invention is linked to the idea of infinite ethical responsibility. The second, related, possibility is to link Levinas’s conception of ethics (premised on an insatiable desire for an absolute other that manifests itself as infinite personal responsibility for the Other) to what Critchley calls, in his essay, the ‘anarchistic disturbance of politics’. All in all, Critchley links the Levinasian anarchistic experience of ethics to an understanding of politics as the dissensual space of democracy. With this move the problem of ‘allergy’ between Levinas’s rich ethics and his narrow conception of politics is overcome. Political theorist Fred Alford risks a particular version of what the anarchistic experience of ethics could contribute to political theory by suggesting that Levinas inverts liberalism. The liberal idea of the individual needs to be fostered and protected by anarchistic ethics because ‘only the individual can see the tears of the other, the tears that even the just regime cannot see’. In sum, the individual is to be fostered and protected for the sake of the Other. Alford’s argument includes several steps. He emphasises that Levinas’s ‘proto-physics’ appropriated the term state of nature, which had lied as the horrifyingly efficient hypothesis of social contractarianism, and turned it into an all-encompassing term that includes nature, civilised society and its discontents. Thus, Levinas was able to distance himself from those who see voluntary submission to the law as the only way out of society’s discontents, and to posit the anarchic experience of infinity, or the command to be-forthe-other, as running through nature and history, undoing the artificial distinctions between is and becoming. Next, Alford undoes the usual assumption that, in Levinasian ethics, the ‘third’ competes with the personal Other. The introduction of the third – who stands for the infinite number of singular Others whom I must serve – both radicalises ethical responsibility into persecution and obsession and ensures that the subject of ethical responsibility should not be sacrificed. In sum, the function of the third that introduces the

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need for justice is not to transform responsibility from its hyperbolic ethical signification into a politically intelligible term, but to accentuate the sense of ethical aporia to the point that it ‘becomes clear that politics need not fulfil the role it is incapable of fulfilling, that of founding philosophy . . . [while the role assigned to philosophy] is not to provide solutions, but to prevent the cynicism of political reason from silencing other dimensions of thought’. Further, Alford shows that Levinas shared the Frankfurt School’s views that instrumental reason and progress are leading to a return of the primitive, as the natural world is invested with new powers to reign over man, a situation that Levinas called ‘forces without faces’. On this basis Alford makes the suggestion that the ‘third’ threatens the Other only in so far as the need for justice he introduces is thematised and totalised. But Levinas’s view of what it will take to prevent or reverse totality differs from that of the Frankfurt School. While Adorno, for example, set the particular against totality, Levinas set infinity. Next, Alford takes a Levinasian position against both classic communitarianism, which neutralises difference, and defenders of multiculturalism, such as Iris Young who, criticising the face-to-face relationship as a presumptive ideal of unmediated social relations, argues in favour of equality and mutual respect among socially and culturally differentiated groups. For Alford, such tolerance can only come at the price of indifference to the Other and, therefore, is part of the ‘forces without faces’ that Levinas feared. Against this Alford prioritises the Levinasian ideas of ‘ethical anarchy’ and ‘substitution,’ that invert individualism and liberalism by implying a non-liberal justification of the key assumption of liberalism, the supreme value of the individual, ‘not for the sake of the individual but for the Other’s’. Finally, Alford ends with the insight that a political theory that is truly inspired by Levinasian ethics would no longer be a hands-off stable ‘theory of ’ politics but a dedication to the impossible but worthwhile task of organising infinite responsibilities. In sum, to the extent that Levinas’s ‘infinite ethical responsibility’ can retain a sense of Aristotelian praxis (an ethico-political act), this would happen at the expense of the Aristotelian assumption that theôria is the highest form of praxis. In ‘Politics and Transcendence’ philosopher Brian Schroeder relates Levinas’s notion of justice with the difference between the concepts of ‘politics’ (la politique) and ‘the political’ (le politique) as delineated in the philosophies of Philippe Lacoue-Labarthe and Jean-Luc Nancy who aim to formulate ‘an ethical conception of politics that aims both to preserve the asymmetrical ethical signification of absolute alterity and widen the domain for the reciprocity of inter-subjective exchange in the socio-political arena.’ He, too, is critical of Levinas for presenting politics as constitutively ‘allergic’ to ethics. Such a politically rejected ethics remains meaningless unless it is concretised within historical experience. But Schroeder finds that Levinas redeems himself by accepting that the absolute other is the concrete Other. This leads him to embrace the notion of ethical anarchy, which Levinas developed in order

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to reformulate metaphysics beyond the Heideggerian approach in terms of desire for the absolutely other. Thereafter, he explains the parallelisms and divergences in the way Levinas and Nancy conceived of anarchy. Levinas and Nancy, he argues, generally converge on the question of a ‘first philosophy,’ or the search for a non-totalisable concept of creation or origin for both being and ethics. Further they shared the idea that singularity is constituted anarchically, through radical exposure to the fact that there is no essence or signification to being prior to its exposure. For this reason, Schroeder argues, Nancy’s idea that beings are socialised not as individuals of a given community but in co-appearing as exposed, or sharing out this exposure, is not antithetical to alterity. That said, in Levinas’s prophetic discourse alterity comes with ethical force, while in Nancy it is logic that suggests it to us. The crux of the matter for Schroeder is whether the meaning of political transcendence one finds in the thoughts of Nancy and Lacoue-Labarthe is capable of effecting a genuine transformation in community without diminishing the absolute character of Levinas’s ethical transcendence. At stake, therefore, is the recovery, for the sake of ‘the political,’ of a genuinely political sensibility and not merely a more active involvement in present politics. ‘Conjoining Nancy’s attempt to formulate an inoperative political ontology with Levinas’s theory of ethical transcendence . . . is useful . . . for engaging the question of grounding praxis in a way that is sensitive to the dangers of the essentializing and substantializing metaphysics and worldviews that still hold sway today in the current echelons of polity decision making.’ In the book’s final part, three legal theorists give their account of the role of Levinasian philosophy for law and its critique. Desmond Manderson examines the legal and ethical frameworks established in the private law of negligence by the existing technical (legal) language of ‘proximity’ and ‘duty of care’ in the light of Levinas’s use of the terms proximity and responsibility. He argues both for the relevance of Levinas’s ideas to our doctrinal, no less than our philosophical, understanding of legal principles; and at the same time he insists that Levinas’s own understanding of law, merely as positive law, needs to be corrected if this consummation is to be achieved. In particular he recounts the history of the rise and fall of legal proximity as a central consideration in Australian negligence law at around the same time as Levinas was developing his ideas. The legal and Levinasian notions of proximity, he argues, are close when the courts reflect on the actual connection between parties that might found a duty of care without reducing it to some formularised criterion of liability; when the courts consider responsibility ‘as a predicament not as a choice’, for example when they consider the parties’ responsibility and vulnerability to phenomena of which they might be entirely unconscious. This understanding of responsibility and proximity,

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Manderson argues, cannot be codified, fixed or determined and yet it must find expression in words. Anything less is irresponsible, he suggests, and does not hesitate to point out that Levinas himself has been guilty of this irresponsibility. The legal history that Manderson examines shows that the Australian courts struggled but eventually failed to come to terms with this paradox. Against this failure Manderson insists on the role of this paradox for law and demonstrates that proximity’s incapacity of a priori definition does not strip it of its ‘ethical power’ to shake and transform the law; on the contrary, the experience of this incapacity is a source of legal critique. The book ends with Drucilla Cornell and your editor signing off concerned, respectively, with the approach of law to physical death and of legal critics to the death of meaning of notions like justice. Cornell, in her Who Bears the Right to Die?, is concerned with the sovereign state’s grip on life, at first as this is normally understood by social contract theory, as state monopoly over violence, but also as control of the play of sensibilities between dying humans and their carers. Cornell does not dispute the first sense; the transfer of the means of violence, including the means of death, to the state in the name of the protection of the lives and security of its citizens is basic to divergent versions of social contract theory: allowing self-murder would disrupt the logic of the exchange that is the basis of the imagined social contract. Thus, examining a series of decisions by the US Supreme Court, Cornell points out, firstly, how persistently and arbitrarily the right to die is framed and controlled as the right ‘to commit suicide’ with another’s assistance. Engaging the thoughts of Kant, Heidegger and Levinas and Derrida, however, Cornell also argues that apart from the monopoly of violence, state law also prevents the articulation of an anarchistic ethics of death. Kant’s love of moral freedom and opposition to social contractarianism did not prevent him from opposing the right to suicide and conceiving staying alive as a duty. Cornell argues that stern Kant did so in so far as for him suicide entails the destruction of a moral person for the sake of avoiding phenomenal suffering. If, however, the right to die was not based on physical suffering, Kant’s objections might be lifted. She then moves to Heidegger’s philosophy which accords centrality to death and its relationship to freedom. Heidegger’s existential analysis gives us the essence of ourselves as to how we are toward death while refusing to give meaning to death because of its radical unknowability; thus, there can be no ethics of death for Heiddeger. To find such an ethics Cornell turns to Levinas for whom death is still other but ‘we are with one another’ in the otherness of death. For Levinas the strange second-hand experience of death is not lived as anxiety for nothingness but as fear of murder. Thus, the approach of death remains one of the modalities of the relation with the Other who presents a demand on us for friendship and medication at the hour of her death. It is here that Cornell turns to Derrida and finds the reason why the state cannot allow us the right

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to assisted death: ‘The compassion for suffering humanity, thus for a passion of death, is a bond without bond, the disjointing, the dis-adjusting of a social bond that binds only in truth, to death and on the condition of death: on the condition of mortal being.’52 Finally, in my piece, Levinas’s ethics is approached as a kind of existential imbroglio. I am concerned with the fact that Levinas’s ethics is relevant to a world in which the loss of meaning is not only either denied or acknowledged but, strangely, it is still experienced by each being in a dramatic fashion, as a personal failure. Hence the persisting interiority of the contemporary individual, just as each of us attests to the inanity of the idea of ‘man’ and seeks to leave responsibility behind by reflecting purely on how existence is caught in impersonal processes and structures which preclude action. Indeed, only in such an absurd set-up does Levinas’s ethics of ‘being hostage’ acquire its significance: the very essence of morality for Levinas is ‘foolish excellence’; to be good is a ‘deficit’, ‘waste’; it is ‘foolishness’ that elevates us ‘beyond being’. And, putting his mouth were his heart was, Levinas evoked a strange right to trace in speech a pre-historical and anarchical saying that is irreducible to language, history and order and designates being as ‘struck’ by the idea of Infinity; this is neither a traumatic strike nor a path to ethereal enlightenment, but an affirmation of a hyper-passivity, unopposed by activity and not synonymous with inactivity. Our philosopher called this situation a ‘monstrosity’ but also ‘divine comedy’. I first attempt to demonstrate such foolish excellence in connection with critical legal studies which, on the one hand, shares the pessimism concerning the implosion of humanism – idealist or realist – yet, on the other hand, values the idea that what ‘is’ remains incomplete, contradictory, deconstructible and, therefore, subject to ‘iterability’. The weakness of this position is that it is not sufficiently ambiguous; it implies that even as we acknowledge that ‘man is dead’ and politics and law are shaped by impersonal processes – processes that are autopoietic and therefore without end, without future, without time – we ‘must’ nevertheless invest in an idea of political responsibility premised on the authenticity of the finite subject who affirms. I argue that iterability must be delinked from anxiety and premised on a different mode of subjectivity-without-time, a prominent candidate for which would be Levinas’s conception of the singular existent: an irreplaceable site of suffering ‘nausea’ before the absolutely, inescapably, self-referential character of material and historical being. In a second move, I suggest that desiring ‘justice’ might be no more than an expression of existential malaise which gives rise to scepticism, ambiguity, interruption, questioning and apology, all of which amounts to rendering absolute closure inefficient while serving it. Levinas’s ambiguous idea of law exemplified this: he thought law at once historically, that is as positive law or instrument of pure politics, and as the immemorial business of adjudication and interpretation where the judge’s experience of the dispute is central. This ambiguity allows us to suggest that what judges do or don’t do is central to

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the effort to distinguish law from impersonal politics but only to the extent that they are singularly exposed to be both without access to moral resources with which to challenge the sovereign or bio-political deployment of power and unable to serve it ‘efficiently’, that is by objectifying being as thoroughly as the plausibilisation of political decisions requires. The other side of this failure would be an excess of judicial sensibility, acting as dead weight on power-politics, which is evinced in judicial self-contradictions, non-sequiturs and, occasionally, as the last chapter in this volume points out, even in the de facto erasure of the crucial legal distinction ‘legal–illegal’. In this passive sense, the judiciary’s ‘ethical’ function is to perform the interruption of positive law by alterity. In a related move, I try to pre-empt the charge that this existentialist reading of Levinasian ethics serves no overall political lessons by arguing that the courtroom in the rechtstaat – that is the state that sustains its authority in a manner which is institutionally paradoxical – and functions as the perfect stage for the production of this kind of inefficacious, deficient, foolish production of subjectivity, especially when the ‘rule of law’ appears to be more a case of rule by law. Through commentaries on laughably ineffective ‘high-minded’ legal decisions that purportedly challenge power, I argue that the value of the ‘rule of law’ is none other than that ethically ‘foolish’ legal judgments constitute a kind of a public spectacle in which the representation of suffering and responsibility thereof is inadvertently more successful than any other spectacle, save for the theatre of the absurd, in conveying the ‘ingredients’ of the ethical relationship: gratuitously individuated responsibility before absurd individual suffering. Arguably, as long as this show goes on, the actualisation of absolute and pure political power is rendered less efficient than it can be and thus ‘the political’ is infinitised. As an example I consider the paradoxical situation of the continuing state practice to execute particular individuals as public enemies as well as the opposition to this practice as ‘state murder’, even as we become aware that impersonal sacrifice is central to the constitution of polities and admit that the distinction between life and death is lost in a sea of faceless mass murder. Levinas’s insights suggest that it remains our anarchic right to obsessively search for traces of murder in the midst of mass murder, and to care for how each of us suffers – as uniquely as absurdly.

Notes 1 Gilles Deleuze in Nancy, JL et al., (eds) Who Comes After the Subject? (New York and London: Routledge, 1991), p 95. 2 Ibid. 3 Agacinski, S, ‘Another Experience of the Question’, in Nancy et al. (eds), Who Comes After the Subject?, 9–23. 4 ‘. . . [I]f it is possible to speak in terms of a “someone” who can “come” after the subject, this “someone” would be one who would have another experience of the question . . . that would not be an experience of thought or of consciousness

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5

6

7 8 9 10 11 12 13 14 15 16 17

18 19 20 21

Editor’s Introduction turning back on itself, but that would be a more radical experience of that which comes (to me) or happens (to me) or calls (me).’ Nancy et al. (eds), Who Comes After the Subject? p 10. And of love. ‘If one accepts that subjective consciousness is . . . thought capable of resting upon itself . . . one can see how the subject is able to desire . . . but one can hardly . . . imagine it loving, or, worse yet, “falling in love” . . . [in which] . . . a fall is involved, or rather, the experience of a weakness, through which existence would discover . . . itself in the mode of absence . . . despite itself . . . entrusted to the other, under the keep of the other . . .’ Ibid., p 7. The reconceptualising of the subject concerns various other strands of critical jurisprudence, notably of feminist legal jurisprudence. For examples see: Benhabib, S and Cornell, D (eds), Feminism as Critique: Essays on the Politics of Gender in Late-Capitalist Societies (Oxford: Polity Press, 1987); Cornell, D, Transformations (London: Routledge, 1993); Butler, J, The Psychic Life of Power: Theories in Subjection (Stanford, CA: Stanford University Press, 1997); and Loizidou, E, ‘The Trouble with Rape: Gender Matters and Legal Transformations’, Feminist Legal Studies 7, pp 275–97. The convention established, with Levinas’s approval, in translating autrui/Autrui (the personal other/s) as ‘Other’ with a capitalized ‘O’ and autre/Autre (otherness in general; alterity) as ‘other’ will be followed throughout this volume. Ibid., p 101. ‘Humanism has to be denounced only because it is not sufficiently human’ Levinas, E, Otherwise than Being, or Beyond Essence, p 128. Levinas, ‘Reflections on the Philosophy of Hitlerism’, reproduced in Horowitz and Horowitz (eds), Difficult Justice – Commentaries on Levinas and Politics (Toronto: Toronto University Press, 2006 pp 3–11) p 6–7. Ibid., pp 4–5. Ibid., p 7. ‘[D]o we not affirm ourselves in the unique warmth of our bodies long before any blossoming of the Self that claims to be separate from the body?’ Ibid., p 8. Ibid. Ibid., p 5. For more on Levinas’s idea on the inclusion of the infinite by the finite see ‘God and Philosophy’ in Levinas Collected Philosophical Papers, trans. A Lingis, (The Hague: Martinus Nijhoff, 1987) particularly p 162. Levinas, Otherwise than Being or Beyond Essence, trans. A Lingis, (The Hague: Martinus Nijhoff, 1981), pp 47–8. A Levinasian term used here in its original sense whereby the Other’s suffering (which raises my responsibility) is not, ultimately, to be defined as a helplessly subjective, incommunicable and incomparable ‘content’ of consciousness but as an absurd counter-occurrence of consciousness, an undergoing of something stronger than what is gathered within psychological content, be it mental or physical. It is in relation to this ‘useless’, inexpressible and meaningless dimension of the Other’s suffering that arise both my duty for succours (other than as obedience to a universal law) and my ‘original’ right to exercise the ‘vocation of compassion.’ My responsibility is the only permissible meaning in the event of another being’s absurd suffering. Levinas, my translation, Entre nous – Essais sur le penser-à-l’Autre (Paris: Grasset, 1991), p 108. Ibid., pp 109–10; my translation. Ibid., p 120. Nancy, Who Comes After the Subject?, p 10.

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22 See Desmond Manderson’s contribution to this volume. For more see: his Proximity, Levinas, and the soul of law (Montreal: McGill-Queen’s University Press, 2006). 23 This aspect of strict liability deserves further attention. If the old law was the law of the sovereign, and if sovereignty is an exercise of power over life and death (whereby suffering is not legally important except as a detriment to life and precursor to death), we must try and articulate the relationship of indifference that pertains between the sovereign and the suffering that its subjects endured without loss of life. Once this indifference is understood, we may even explore the possibility that, following the demise of sovereign law, disciplinary regimes may equally require a substratum of indifference to the significance of suffering outside the binary oppositions of health/illness, being/non-being, that is an indifference towards the ethical significance of ‘useless’ suffering. 24 Posner, R, Law and Literature – a Misunderstood Relation (Cambridge: Harvard University Press, 1988), p 36. 25 This is a point carefully elaborated by Desmond Manderson in his Proximity: Levinas and the soul of law (Montreal: McGill-Queen’s University Press, 2006). Cf. also his contribution to this volume. 26 New types of individuation ‘. . . no longer constitute persons or “egos” . . . Anglo-American literature and philosophy are particularly interesting from this point of view because they are conspicuous for their inability to find a sense to give to the word “me” other than that of grammatical fiction . . . Against all personalism, psychological or linguistic, they promote a third person, and even a “fourth person singular”, the non-person of It, in which we recognise ourselves and our community better than in the empty exchanges between I and Thou. Nancy, Who Comes After the Subject?, p 94. 27 Just as there are no ‘hard’ facts, there would be no ‘hard feelings’. Here, I am referring to Lyotard’s assertion that judgment finally rests on a ‘feeling’ that one is judging correctly – in the absence of present criteria for judgement. Lyotard, JF and Thebaud, JL, trans. W Glodzich, Just Gaming (Manchester: Manchester University Press, 1985). Lyotard’s position has been criticised, among others, by Theron Britt who argued that, Lyotard’s ‘feeling of being correct’ amounts to an epistemological trans-historical given. Further, Britt points to the prescriptive element in Just Gaming regarding feeling as ‘. . . a familiar source of grounding . . . [namely] . . . the “feelings” of the subject who feels, the physicality of a subject’s body, ultimately to the body as universal nature’, as quoted by Myrsiades, L et al. (eds), Un-Disciplining Literature: Literature, Law and Culture, (New York: Peter Lang, 1999), p 172. With regard to Lyotard’s ‘feeling of being correct’ we can further say that it is a substitute for Kant’s ‘imagination’ and the figure of ‘genius’ as that which unifies noumena and phenomena in Kant’s third Critique of Judgment. At least in this sense both Kant and Lyotard share a totalitarian moment. Every subjectivism may be criticised as such: no hard facts? No hard feelings . . . 28 ‘What characterizes the structure of thought and truth in the Western world . . . is the distance that initially separates man from the world of ideas in which he will choose his truth’ and affirmed man is free and alone in the face of the world ‘to the point of being able not to make a choice’. Levinas, ‘Reflections on the Philosophy of Hitlerism’, ibid., pp 9–10. 29 And, ‘[M]an no longer finds himself confronted by a world of ideas [but] is already linked to a certain number of these ideas. He can no longer play with an idea because coming from his concrete being, anchored in his flesh and blood, the idea remains serious.’ Ibid., p 10. 30 Ibid.

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31 Ibid. 32 Diamantides, ‘The Subject May Have Disappeared but Its Sufferings Remain’, (2000) Law and Critique, Vol. 11 No. 2, pp 137–166. at 160. ˇ izˇek ‘Freud lives!,’ London Review of Books, 25 May 33 See, for example, Slavoj Z 2006. 34 The myth the Eumenides concerns the setting up of the ‘first ever’ criminal trial in Athens in relation to a stranger, Orestes, who, having committed matricide, has been exiled from his native Argos. Matricide was considered an abomination against the divine order, an act so heinous that under pan-Hellenic customary law there was no trial for it. Instead the perpetrator was expelled from his, as well as any other, community with the certainty that, cast away from human proximity and deprived of symbolic recognition, he would perish in utter deprivation, haunted by madness-inducing Furies. Orestes-in-exile, therefore, is a figure akin to the figure of Homo Sacer under Roman law: anyone could kill him without penalty although his life could not be ritually sacrificed to appease the Gods, given his polluted status. What I am alluding to here, however, is that the relationship of the legal system of the polis of Argos, which expelled him, and Athens, which received him and in the process ‘inaugurated’ her criminal legal system, is not exhausted by the narratives of his expulsion and admission. Instead, as Orestes makes clear in his plea, his dehumanisation while in exile never took place because of the undeserved kindness and hospitality he received by strangers during his wanderings. 35 Posner, R, Law and Literature – a Misunderstood Relation. 36 Ibid., p 14. 37 Ibid., pp 25–70. 38 In short: the instinct to take revenge must have become a part of the human genetic make-up. Yet, from a social point of view, vengeance is an extremely clumsy method of maintaining order, producing underspecialisation of the labour force, inflating uncooperative egos, impeding nation building and generating indiscriminately destructive feuds. Based as it is on emotions such as wrath, touchiness and unforgivingness, revenge is always potentially non-efficient and retards the emergence of market economies in which desires are wilfully compromised and our subjective valuations of goods and services are translated into finite prices. Thus, revenge is inimical to the acceptance of limitation and commensurability as fundamental norms of social interaction. 39 Ibid., p 34. 40 Cf. Levinas, Otherwise than Being, pp 153–62. 41 ‘God and Philosophy’ in Levinas Collected Philosophical Papers, p 156, emphasis in the original. 42 Levinas, ‘Substitution’ in A. Peperzak, S. Critchley, and R. Bernasconi, (eds), Basic Philosophical Writings (Bloomington and Indianapolis: Indiana University Press, 1996), p 91. 43 Ibid. 44 As cited by Howard Caygill in this volume. 45 Supra n 33. 46 The status of Orestes in exile is comparable to the Roman institution of Homo Sacer, that is the human who can be killed with impunity, albeit not in a ritual fashion. Homo Sacer, then, stands for the reduction of subjectivity to raw life that cannot signify politically as significant bios either in the eyes of law or the gods. See G Agamben, Homo Sacer – Le Pouvoir Souverain et la Vie Nue, trans. M Raiola (into French), (Paris: Le Seuil, 1997). 47 ‘A suppliant in need of purification I am not . . . and do thou of thy grace receive

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48 49 50 51 52

31

an accursed wretch, no suppliant for purification, or uncleansed of hand, but with my guilt’s edge already blunted and worn away at other habitations and in the travelled paths of men . . . I now approach thy house . . . [H]ere will I keep my post and abide the issue of my trial.’ in Aeschylus, Agamemnon, Libation-Bearers, Eumenides, Fragments, H Lloyd-Jones, (ed.), trans., H. Weir Smyth, (Cambridge: Cambridge University Press, 1983), pp 235–41. And: ‘It [would be] a long tale to tell from the beginning of all I visited and harmed not by my dwelling with them.’ Ibid., pp 276–86. See: Douzinas and Gearey, Critical Jurisprudence – The Political Philosophy of Justice (Oxford: Hart Publishing, 2005) pp 13–116. For citation and elaboration see Marty Slaughter’s contribution to this volume. A point elaborated by Slaughter, ibid. Apart from the present volume these problems are also tackled in innovative ways in Horowitz and Horowitz (eds) Difficult Justice. Jacques Derrida, Demeure: Fiction and Testimony (Stanford: Stanford University Press, 2000) p 69.

Part I

Face-to-face with the Other or just before the law?

Chapter 1

Politics not left to itself: recognition and forgiveness in Levinas’s philosophy Julia Ponzio

1. Forgiveness and justification Levinas’s work is an attempt to discover, to shed light on, what ‘stays beyond’ totality. The task of philosophy, Levinas says, is to ‘proceed from the experience of totality back to a situation where totality breaks up, a situation that conditions the totality itself. Such a situation is the gleam of exteriority or of transcendence in the face of the Other.’1 When philosophy proceeds beyond totality, discovering its exteriority, it reaches the ethical relation, the relation with the other, the absolute and unjustified responsibility for the other, and this means that philosophy reaches the ethics as a condition of possibility of ontology. The principal question I pose here is whether ‘the political’ in Levinas’s thought is placed on the level of what, in Otherwise than Being he calls ‘justice’ – defining it as ‘comparison, coexistence, contemporaneousness, assembling, order, thematization, the visibility of faces (. . .) a co-presence in an equal footing as before a court of justice’2 – or whether it is placed on the level of the ethical encounter where, as Levinas says in Totality and Infinity, my spontaneity is called into question by the presence of the other.3 Ultimately what we are trying to understand is whether, for Levinas, the political has its place inside or beyond totality. In the last pages of Totality and Infinity Levinas writes: ‘In the measure that the face of the Other relates us with the third party, the metaphysical relation of the I with the Other moves into the form of the We, aspires to a State, institutions, laws which are the source of universality. But politics left to itself bears a Tyranny within itself; it deforms the I and the other who have given rise to it, for it judges them according to universal rules, and thus as in absentia.’4 In this sentence the answer to our question about the place of the political in Levinas’s thought seems clear: it seems that the political is indeed placed on the level of totality and justice, that is to say on the level where, Levinas says, interiority is under the tyranny of totality. Levinas, however, specifies: it is not

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the politics in general that bears a tyranny within itself, but the ‘the politics left to itself,’ so we have to question: what is the meaning of a politics that is not left to itself and where is it placed with regard to the totality? The very dense sentence quoted above contains all the problems that we want to deal with in this text. The principal one is that of the relation between inter-subjective recognition and the recognition of a position in a socio-political community. The inter-subjective recognition happens in the relation of what Levinas calls entre nous, that is the relation between two persons, in which the other is always a thou. In this relation, the other is addressed and recognised neither for his role in society, nor for his political rights, nor for what he owns, but for himself, for his irreplaceable otherness. The other in the entre nous is not a Third that demands justice, that claims for his rights, and for the recognition of his place in society but is the Feminine that is to say the irreplaceable otherness in the love relation. The problem of the relation between these two modalities of recognition is also, in Levinas’s thought, the problem of the relation between the other as Third and the other as Feminine. In a conversation with Bracha Lichtemberg-Ettiger, Levinas explains very clearly what he means with ‘feminine’: Le féminine est cette différence, le féminine c’est cette chose inouïe dans l’humain par laquelle s’affirme le fait que sans moi le monde a un sens.5 In Levinas’s discourse, therefore, the ‘feminine’ is not related to biological sexual difference but signifies a human possibility. In fact, as Levinas says in an interview with Nemo: ‘All these allusions to the ontological difference between the masculine and the feminine would appear less archaic if, instead of dividing humanity into two species (or into two genders), they would signify that the participation in the masculine and the feminine were the attributes of every human being.’6 The other therefore, presents itself, in Levinas’s thought, in two modalities: the feminine and the third. The encounter with the feminine precedes language, identity, totality, history and justice but the constitution of identity, totality, history, and justice is determined by the encounter with the other as third. The fact that Levinas places the feminine at a level in which interiority does not yet have an identity, a language, a recognised place in society, has been often interpreted as a subordination of the feminine, as the impossibility of political participation and recognition of the feminine. In my opinion such critics, who have their most important references in Simone de Beauvoir and Luce Irigaray,7 disregard the fact that the entre nous and justice are not in Levinas’s thought two alternative and separated dimensions from which we have to choose, but they are deeply linked and the feminine is precisely the

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possibility of this link. Thus, this essay argues that Levinas does not relegate the feminine to a dimension that ‘precedes’ totality, justice, and socio-political recognition since, in his thought the feminine is the condition of possibility of the relation between totality and its beyond, of the relation between the socio-political recognition and the recognition in the entre nous. In what follows I show that what Levinas calls feminine, is not something, is not a state of being that could be placed in or beyond totality, but is a possibility, and precisely the possibility of the relation of the totality with its beyond. I think that such a possibility that the feminine represents, in Levinas’s thought is at the same time, the possibility of a politics not left to itself, that is to say a politics different from a detached and justified application of an already written law. In order to reflect on the possibility of a ‘politics not left to itself ’ it is crucial to first clarify what kind of relation Levinas establishes between totality and its ‘beyond’. To clarify this relation, I argue, it is very useful to analyze the concept of forgiveness. In his essay The I and the Totality,8 written in 1954, Levinas defines the ethical dimension of the entre nous as the space in which forgiveness is possible. The space of forgiveness, says Levinas, is that of an intimate society, a society that ‘consists of two people, I and thou. We are among ourselves. Third parties are excluded’.9 Therefore, forgiveness becomes impossible when the Third bursts into this intimate space, that in Totality and Infinity is the space of the dwelling, asking for a justification of the place that the interiority occupies in the world. The space of dwelling, where forgiveness is only possible is the dimension of feminine. Thus, the possibility of forgiving marks the border between relating to the Other as Feminine and to the Other as the Third who bursts into the intimate space of entre nous asking for a justification. Because interiority cannot be indifferent to the Third’s request of a justification of the place it occupies in the world it constitutes its identity in the answer it provides, justifying itself. When this answer is given forgiveness is no longer possible. In Levinas’s discourse, therefore, forgiveness is crucially placed at this very important moment of the passage from the ethical experience to that of the justice. The problem of forgiveness is intimately linked in Levinas’s thought with his analysis of the concept of present. Present, according to Levinas, is fundamental to the process of recognition. It is, in fact, the moment in which an interiority recognises itself as separated from the anonymity of existence or il y a. What characterises present, in Levinas’s thought, is that it is not inside a history, but it starts from itself, and so, there is no origin that can justify it.10 ‘Present’ breaks with the anonymous duration of existence, it is the possibility of a position in the ‘here and now,’ which is the possibility of creating a reference point in the otherwise anonymous flux of existence. This here and now that is my present is what Levinas calls position. Therefore, to acquire a present means to take position, that is to say to come to an unforeseen ‘halt’, Levinas says, in which time’s duration is interrupted and

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linked up again.11 In different words, the ‘present’ is the apparition of a positioned interiority that ‘digs its heels’ in the mode of duration, and, consequently, becomes the ‘zero point’ of the duration. In position, the anonymous existence in which whatever happens does not yet happen to any-one, becomes the existence of some-one, that is, the existent. The existent is the subject of being. From this moment on, existence is divided in two: there is a part of existence that belongs to me and a part of existence that does not belong to me. The part of existence that belongs to me is my interiority. In interiority we are no longer exposed to anonymous existence, but we are posed as subject of a part of it. ‘Present’ is this unforeseen jump from the exposition to the position. Levinas says: ‘. . . position is the very event of the instant as a present.’12 This means that interiority does not exist ‘before’ the position but, as soon as the present appears in the taking of position – without any reason and motivation – interiority is constituted and can identify, that is to say recognise, itself. This identification or recognition of the fact that there is a part of existence that is my existence, is precedent and necessary to the constitution of consciousness and identity. From this very first moment, however, the present is no longer free. Following its free beginning the present is condemned to be, namely, to flow from a past and anticipate a future in consciousness. Present as position, however, ‘halts’ this sentence. That is to say, in the instant of taking a position the present’s links to past and future are suspended in the double meaning of this word: suspension means either the temporary, not definitive, stopping of something or the absence of a ground and route. In this double sense the instant of position is a ‘suspended’ present: it is without any provenance and destination and does not flow in historical time. Levinas says in Existence and Existents: ‘Before linking up with the instants that precede or follow it, an instant contains an act by which existence is acquired.’13 This event, this absolutely free act with which I take up position in existence becomes my present. I become the subject of this present. The instant that is my present, that is the existence that belongs to me and of which I am the subject, becomes part of my history, it is caught and linked to my past and my future. In this consists the ambiguity of ‘position’. Position, then, is the event of constitution of an existent, whereas ‘the existent’ is the impossibility of the event. Position is the suspension of duration, but, at the same time, it is the constitution of the existent in which no more suspension is possible. As Levinas puts it in Existence and Existents: ‘Consciousness, position, the present, the ‘I,’ are not initially although they are finally existents. They are events by which the unnamable verb to be turns into substantives. They are hypostasis.’14 Now the fact that present requires and brings about a position means that it is the moment in which interiority is no longer absolutely exposed to existence.

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But it also means that, after its free beginning, it gets a position in relation to the instants preceding and following it so that the present is henceforth caught in an indissoluble link with the past and the future. Crucially, for our discussion here, it is only in connection with my past and my future that the instant of the position can acquire a justification and become justified: justification is the link of the present with past and future. Thanks to justification the present is no longer ‘beyond history,’ it is no longer unjustifiable and unjustified. To justify something means to tell a story linking it with the past and future. When someone asks me to justify an act of mine, I always answer with a tale situating this act in connection with my past and my future. This link in which the present is connected to a past and a future, and so it is justified, is what Levinas calls ‘economic time’. In economic time, namely the time in which every instant is justified at the price of losing its freedom, present is no longer outside history, no longer starting from itself. By the same token, however, the entry into economic time means that the present is shielded from unlimited exposure, it is no longer exposed. The term ‘exposition’, which we find throughout Levinas’s work, is used for the first time in Existence and Existents to describe the il y a which, in turn, means anonymous existence without existents. Thus, in so far as being lacks present ‘One is exposed. The whole is opened upon us.’15 In this openness of the nocturnal space over us, Levinas says, we are opened to being. Exposition, therefore, amounts to a strange openness because, in absolute existence, there is not yet any interiority (any-thing or any-one) that could be opened. Interiority begins through being exposed. This is a situation of an absolute and paradoxical exposition to which the taking position puts an end. After taking position and with the constitution of economic time, interiority seems definitively safe from this paradoxical situation of exposition. ‘Forgiveness’ also appears in Existence and Existents in the discussion of the situation in which the existent’s position and exposition seem to be alternatives. In this situation the function of forgiveness is to give back to present its original freedom, its ‘Être à partir de lui même’ after the constitution of interiority. In which way does forgiveness give back to present its freedom? Forgiveness gives back to present its freedom not simply by creating a new passage from position back to exposition, not even coming back to absolute exposition, that is to say not remaining in the alternative of position and exposition, but, in a certain way, by removing this alternative. Forgiveness, therefore, shows that the positioned interiority remains exposed. Forgiveness, in other words, is the interruption of the absoluteness of presence. Levinas writes: ‘Reaching the other is not something justified of itself; it is not a matter of shaking me out of my boredom. It is, on the ontological level, the event of the most radical breakup of the very category of ego, for it is for me to be somewhere else than myself; is to be pardoned, not to be a definite existence.’16

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If reaching the other means to ‘be somewhere else than myself ’, and to be forgiven in the sense of no longer being justified by myself we are compelled to think of a new and very specific kind of recognition. What requires recognition is that which remains without any justification namely the fact that being cannot absolutely justify itself and the place it occupies in the world. It is a recognition of what cannot be justified by the ‘position’ of the act, by the position of present between a past justifying it and a future offsetting it. This kind of recognition is not determined by a justification but by an exposition and, at the same time, it does not determine a justification but an exposition. By contrast, the recognition of what can be justified is simply an excuse, or assumption of pretended innocence. Justifying always means to position present between past and future within economic time. To excuse someone means to position his action in economic time so that this action seems no longer exposed. Levinas says: ‘. . . [P]ardon refers to the instant elapsed; it permits the subject who had committed himself in a past instant to be as though that instant had not passed on . . . as though he had not committed himself. Active in a stronger sense than forgetting, which does not concern the reality of the event forgotten, pardon acts upon the past, somehow repeats the event, purifying it. But in addition, forgetting nullifies the relation with the past, whereas pardon conserves the past pardoned in the purified present. The pardoned being is not the innocent being.’17 In sum, Levinasian forgiveness or pardon stands apart from excuse – that is the recognition of the fact that the act committed had a justification – and oblivion – which cancels the act as if it had never been committed. Starting with its difference from the latter, forgiveness does not plunge again the committed act into the indistinct existence. It does not take out its name. It does not eliminate the fact that it happened. It does not take out its position but it exposes it. At the same time, it does not excuse or justify it. If justification is the link of present with past and future in ‘economic time,’ through which the present is justified by reference to the past and is, in its turn, a justification of future compensation, forgiveness is an opposite movement. It concerns the present which recognises its unjustifiability and so turns towards the other asking for forgiveness. This we may call an exposed or suspended present, namely a present that assumes nothing more than my need in the now to seek forgiveness. Of what kind of present are we now talking about? What is the ‘ordinary’ present of ‘economic time’ that needs to be forgiven in the now of an existent who asks another for forgiveness? It is the present in which, generally speaking, are committed my acts or omissions, but in particular it is the present in which the identity constitutes itself beginning to tell a story about itself as justification of its place in a given socio-political community. This kind of

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present, in which I recognise myself as separate from the anonymous ‘there is’ of existence [il y a], is the moment in which I begin to tell the tale of my life through which I ask others to recognise me; this tale justifies my position in the world and the recognition I crave. Once the present has thus been captured in the economic time of personal identity and recognition, therefore, interiority is sure of having in itself the justification of its own recognition. In this case the recognition sought from the other is a sort of ratification of self-recognition. The demand for recognition, therefore, is a rhetorical one. An interiority that tells its own story already has in itself the justification of the recognition that the other should only ratify. Begging forgiveness, on the contrary, requires that the one that wants to be forgiven, has to recognise the absence of justification of the act. In The I and Totality Levinas says that what makes possible the act of forgiveness is firstly the recognition of the fault and secondly the recognition of the unjustifiability of the fault itself. To the recognition that there is no tale that I can tell to justify the act for which I am asking for forgiveness, corresponds an equally unjustified act, which recognises the act that needs to be forgiven, and alongside its un-justifiability. In sum, forgiveness is the unjustified recognition of what does not have in itself the reasons for its justification. It is what lies totally beyond the logic of justification and of justice. This idea of a recognition as forgiveness of my being unjustifiable, that comes from a relation with the other, is distinguished from both the Kantian ethics of justice and the Hegelian ethics of recognition. In La mort et le temps Levinas clearly shows this difference by saying that: ‘For Hegel ethics is always universal. The person is always thought in virtue of the universality of law; Hegel on this point is Kantian. The person as individual is not Spirit and has not got any ethics. Here, in the present research, the person is the other individual, and any universal starts from there.’18 In asking for forgiveness the emerging exposure of the unjustified is also the emergence of a present not linked to a past and to a future, a present that has neither foundation nor direction nor finality and, therefore, a present that is ‘exposed’ or ‘suspended.’ Thus, forgiveness of the unjustifiable is also a particular kind of recognition, of what does not have in itself the reasons for its own justification. That recognition, however, is only possible, Levinas says in The I and Totality, in the entre nous that is in an intimate society that excludes the third person. As soon as the third appears in the intimate society of the entre nous, Levinas says, forgiveness is no longer possible. The apparition of the third determines the constitution of what Levinas calls real society. The real society is the place of justice, in which the recognition of the other always precedes from justification. Hence, ‘the other,’ in Levinas’s philosophy, has a double role: on one hand, in the entre nous, my other stands

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for ‘the feminine,’ that is, for the possibility of recognition as forgiveness; on the other hand, in real society, the other is ‘the third,’ who demands recognition involving justification. The other as third breaks into the space of intimacy and breaks the silence that reigns in it asking it to justify itself, to tell the story that recognises him inside the economic time, so that his place, his rights, his role, his ownership, but also his fault, his guilt, can be justified. Constituting the real society the other as third disturbs the entre nous and determines the impossibility of forgiveness: my wrong with regard to you, which I recognise entirely in terms of my intentions, is objectively falsified through your relation with him, which remains secret to me, since I am excluded from the unique privilege of your intimacy with him. If I recognise my wrongs with regard to you, I may be wronging the third one through my repentance itself.19 To be forgiven I need to recognise my fault, I need to recognise the fault as mine, but in the real society, in a society that is not made of only two persons the other, as third, could be an indirect victim of an act of mine that slipped out of me and that I no more recognise as mine: in a real society I could be guilty toward someone whose face I have never seen. The third determines a separation between the intention of the act and the objective result of it. The objective result of an act, that is what was not in the intention of who committed the guilt, is unforgivable or ‘does not belong to the order of forgiveness’.20 The present of the act that produces effect beyond my intentions is a present in which I became subject of an existence that is not mine, that is to say it is beyond my control and my power. In real society, therefore, and as a result of the regard of the third, the present becomes something that slips out of my will and my responsibility. In real society: ‘. . . [I] am no longer a me, properly speaking; I am at fault for something not reflected in my intentions. I am objectively guilty and piety cannot purify me of it.’21 Due to the entrance of the third that makes forgiveness impossible, moreover, history succeeds the unjustifiable but forgivable present. In history everything has a justification. The moment in which history justifies my position, my role and my acts, forgiveness becomes impossible, because my acts are no longer mine. Levinas says, in The I and Totality, that history, totality and being are the space in which interiority is reduced to an epiphenomenon and, in which, as he says in Totality and Infinity, totality exerts a tyranny on interiority. This is the space in which Levinas situates the politics left to itself. Politics left to itself is what ‘deforms the I and the other who have given rise to it, for it judges them according to universal rules and thus as in absentia’.22 Politics left to itself is, therefore, the politics that has forgotten the relation with the other; that cannot recall the ‘gleam of exteriority or of transcendence in the face of the other’23 who is forgivable without need for justification; it is a politics, in sum, that is unable to trace the condition of its possibility to a situation where

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totality breaks up. Instead, politics left to itself knows its place in a totality separated from the relation to the other, separated from its condition of possibility. What I will be questioning from now on is whether this view of ‘politics left to itself ’ is actually Levinas’s view of ‘the political’ in general. My hypothesis is that a politics not left to itself is, in Levinas’s thought, precisely the possibility of the relation between totality and its beyond, between totality and the relation to the other as its condition of possibility, that is to say between forgiveness and justification.

2. A politics not left to itself I argued that in Levinas’s thought forgiveness marks the border between the intimate society of the entre nous, in which forgiveness is not the result of justice but of recognition of the unjustifiable, and the ‘real’ multiple society, in which, at the expense of forgiveness, ‘justice’ requires the recognition of justification. How can we interpret the relation between recognition of the unjustifiable and the justified, between forgiveness and justification? The problem of the relation between forgiveness and justification, in short between ethics and justice, is also, by the same token, the problem of the relation between the other as feminine and the other as third. I will try to demonstrate that, in Levinas’s thought, forgiveness and the ethical relation with the other as feminine, is not a kind of ‘primordial’ phase of justification that would be definitively overcome in the moment of the appearing of third. In Totality and Infinity ‘dwelling’ is the metaphor used for the exposed interiority. The dwelling means to assume a position, to establish oneself. The dwelling, Levinas says, breaks with the totality of the elements; it is emergence from the anonymous existence and constitution of interiority. The dwelling is the constitution, within impersonal existence, of a distinction between a space that I own and a space that I do not own. The space that I own, that is that part of existence of which I am the subject as existent, is ‘the secrecy of dwelling’. But a dwelling also has an external aspect – Levinas calls it the ‘street front’ – and so it remains exposed towards exteriority. The third knocks on the door of the dwelling asking whoever is inside for a justification of his or her ‘inside position’ and of the possession of that part of existence. In terms of embodiment we can say that interiority is exposed through its own skin and sensibility. Dwelling, then, is the inevitably exposed position that requires forgiveness as its condition of possibility. This is the reason why, in its own dwelling, interiority cannot be alone. To retreat into the dwelling, Levinas suggests, means inevitably to seek refuge in what can be no more than an exposed position: ‘I must have been in relation with something I do not live from. This event is the relation with the Other who welcomes me in the Home, the discreet presence of the Feminine.’24

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The exposed position that dwelling represents needs forgiveness as its condition of possibility. In this sense the dwelling presupposes the relation with the Other. Thus, interiority, position and dwelling, in Levinasian discourse, ultimately signify a home experienced as a space of welcoming rather than closure. Ipso facto, the possibility of being at home with myself rests on forgiveness as recognition of my unjustifiable interiority. This possibility to relate to myself as someone whose identity is based on welcoming and forgiveness is according to Levinas the ‘Feminine.’ The Feminine is the welcoming par excellence; it is the presupposition of the separation in dwelling; the presupposition of interiority. The ‘Feminine,’ that is recognition as forgiveness, is ipso facto the presupposition of recognition as justification, of justice. The feminine, in other words, stands for interiority and justice turned inside out, that is to say exposed. Levinas says in Totality and Infinity: ‘It would seem that between the different surfaces there exists a more profound difference: that of the obverse and reverse. One surface is offered to the gaze, and one can turn over the garment, as one remints a coin.’25 Thus, when Levinas makes identity and totality dependent on what he calls the ethical relation – where I am guilty ‘before the other,’ understood as exposition to the other’s ‘face’ who regards me and demands justification, that is to say a relation premised on forgiveness in the sense given earlier – this does not suggest that the one needs to ‘remember’ the other it has superseded. Rather, the movement from totality to its ethics as condition of its possibility, from recognition as justice to recognition as forgiveness, is different from the phenomenological research for an origin. This movement is not a coming back to the origin of totality, but the turning inside out that shows the other side of totality. Levinas writes: ‘Infinity is not in front of its witness, but as it were outside, or on the ‘other side’ of presence already past, out of reach, a thought behind thoughts which is too lofty to push itself up front.’26 The operation of turning interiority and totality inside out is, precisely, the exposition of the position determined by forgiveness. Interiority turns over into an exposed sensibility. This space of interiority, defined by Levinas as silence, as preceding language, already catches the present in a temporal flux in which the present must flow as retention. This means that what precedes language is an essence, or, as Levinas says in Otherwise than Being, an essance. It must be stressed that Levinas defines essence in Otherwise than Being as modification of identity. To symbolise this essence, he often uses in his work the idea of resonance: where essence is, there is resonance. In interiority there is

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resonance even before language: once the present passes, Levinas says, it resounds. What needs to be stressed is that before the third bursts into the intimate space of dwelling there is already essence, there is already being, consisting of aimless, non-intentional sensibility and, therefore, the mechanism that the mechanism for exposition is already active before the constitution of Totality, before the constitution of justice. To go ‘beyond essence,’ that is to say to go beyond the present that is so caught by its connection with past and future that it cannot be for itself, it is not sufficient to retreat into the secrecy of dwelling. Again, the secrecy of dwelling is not a perfect shelter. Rather essence and interiority must be thought of as positioned ‘inside out’ always already exposed. Understanding this point is crucial for grasping how Levinas attempted to move beyond the classical opposition between singular and universal, individual and general. The new category of exposed position is opposed to the thought of being in the light of History, Totality, the State, ‘Being’ as generality and all other situations in which one is named in the third person. To inhabit an exposed position means to be ‘one’ in a manner that is entirely distinct from that of the classic self-constituted ‘individual’ who ‘fights’ to remain ‘one’. Rather to occupy a singular exposed position means to be a forgiven interiority, that is a self who is constituted by virtue of its original relation with the exteriority of its other that both accuses it for excluding him unjustifiably and forgives me. For the usual dilemma ‘singular’ or ‘universal,’ therefore, is substituted the idea of the unjustifiable singular that can be only in so far as it is both exposed-as-inessential and fore-given as such by an other. To be otherwise-than-as essence that tries to justify itself, one must be at the same time exposed and forgiven. The time in which interiority recognises its own unjustifiability and demands forgiveness, is the time of the exposed present, that is a present no longer caught in the economic time that binds past and future. Through the movement of recognising my un-justifiability and demanding forgiveness, the flux of consciousness is turned inside out as a dress of which we discover the hidden weft, revealing pure sensibility that is absolute bodily passivity, patience and vulnerability. In terms of time the turning inside out of the body reveals an absolute passivity that assigns me to senescence. This form of sensibility, the ‘time of the body’, is the way in which something that does not come from me concerns me; it is the perturbation determined in the subjectivity from the interference of the other, even if this perturbation immediately is caught again in the order of essence. The body, is both what allows the contact with the other and the resonant space in which the present is caught. In this sense Levinas’s face-to-face, that is the ‘ethical relation,’ is to be understood as the sensibility of justice, that is to say, as justice turned inside out, in which each and every party’s position is exposed in its vulnerability rather than judged for sense-strength. Since justice heeds what is said and done in the time of economy, the sensibility of justice concerns the reverse

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side of the internal consciousness of time. In its reverse side consciousness appears already present before anything is said, Levinas says in Otherwise than Being. Differently put, ethics concerns the body as ‘saying’ more than what gets ‘said,’ thus revealing the helplessness of the equation signifier– signified. Indeed, that the sensibility of the subject is somewhere else than in itself, is true for two reasons: firstly because the body, as exposed vulnerability, is already saying before any intentions appear (think of an infant’s memory, for example; it is before language but that nevertheless has a temporal order and, for this reason, could became said), and, secondly, because the temporality of the body has never been assumed by the subject. In Levinas’s work the exposition of interiority’s fragility, which the feminine determines through the act of forgiveness, amounts to nothing less than the condition of possibility of language and is, Levinas says, the condition of possibility of the freedom of speech. It is the condition of possibility, to use the language of Otherwise than Being, of the saying-beyond-said. Critically, Levinas’s ethics oppose the femininity of exposure to the virile judgment of history, in which, according to Levinas, the interiority is cruelly reduced to a third-person singular ‘he’ and loses its voice.27 In this situation history records positions but forgets the exposure of these positions and, therefore, the vulnerability and openness of the subjects that occupied them. Henceforth, Levinas says, interiority is assumed to exist as is ‘reflected by the public order, in the equality which the universality of laws ensures. Henceforth it exists as though it were dead . . .’.28 Indeed, following Levinas’s logic, when interiority is thought of without vulnerability and exposition, as in Kantian autonomy for example, it is effectively denied the possibility of speech because every possible word becomes a word already said and every possible question becomes a rhetorical question that already has inside itself the answer. With this we come to what Levinas fearfully referred to as the space of the politics ‘left to itself ’. If ‘politics’ is understood as such it is a politics where it is really impossible to take the floor. Said differently, in this case, all politics is identity-politics where the word is definitively delegated. Politics, in such a case, is the name given to the process in which by speaking I do no more than delegate my contingent self to represent me; the ‘political’ would be reduced to a space in which interiority becomes historicised by doing no more than justifying the recognition of its position in a given socio-political community. My starting initial question was: what does a politics that ‘is not left to itself ’ mean? My tentative answer is that politics-not-left-to-itself should be thought of neither on the level of essence, that is the level of justice, nor on the level of sensibility that is on the level of ethics. My hypothesis is that politics-not-leftto-itself should rather be thought of in relation to the operations of turning inside out any essence, any totality, in order to discover the ethical encounter with the other as the reverse side of justice: this signifies that ‘the political’ operates as the exposition of position par excellence. If we assume this

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definition of the political, the political role par excellence must be assigned to the Feminine because it is, as we have seen above, the human possibility of the exposed position, of recognition without justification that is forgiveness. To expose essence, to expose the space in which all is justified should include recognising that justice does not have in itself its own justification, and that it can, in turn, signify the possibility of a dialogue that is not ratification of a position, the possibility of asking non-rhetorical questions.

Notes 1 Levinas, Totality and Infinity: An Essay on Exteriority, trans A Lingis, (Dordrecht/Boston/London: Kluwer Academic Publishers, 1991) p 24. 2 Levinas, Otherwise than Being or Beyond Essence, trans A Lingis, (Dordrecht/ Boston/London: Kluwer Academic Publishers, 1981) p 157. 3 Levinas, Totality and Infinity, p 43. 4 Ibid., p 300. 5 ‘Emmanuel Levinas en conversation avec Bracha Lichtemberg-Ettiger, Que dirait Eurydice?’ in Eurydice 1992–1996 Oeuvres de Bracha Lichtemberg-Ettiger, (‘Kabinett’ Exhibition Catalogue, Stedelijk Museum Amsterdam, 6/2–6/41997, Paris, 1997) p 17. 6 Emmanuel Levinas, Ethics and Infinity: Conversations With Philippe Nemo trans R. Cohen, (Pittsburgh: Duquesne University Press, 1985), p 68. 7 See: S de Beauvoir, The Second Sex, trans H M Pashley, (New York: Vintage Books, 1989), p XXII, note 2; L. Irigaray, ‘Questions to Emmanuel Levinas’, in Bernasconi, Critchley (eds) Re-Reading Levinas, (Bloomington and Indianapolis: Indiana University Press, 1991); L Irigaray, ‘The Fecundity of Caress’ in Irigaray et al., An Ethics of Sexual Difference, (New York: Cornell University Press, 1993). About the problem of the feminine in Emmanuel Levinas and its interpretation see also: Tina Chanter, Time, Death, and the Feminine. Levinas with Heidegger, (Stanford: Stanford University Press, 2001) and Paulette Kayser, Emmanuel Levinas: la trace du féminine (Paris: Presses Universitaires de France – PUF, Collection: Philosophie d’aujourd’hui, 2000). 8 Levinas, ‘The I and the Totality’ in Entre nous. Thinking-of-the-Other, trans M B Smith and B Harshav, (London: The Athlone Press, 1998). 9 Ibid., p 20. 10 Cf. Existence and Existents, trans A Lingis, (Dordrecht/Boston/London: Kluwer Academic Publishers, 1988) pp 72–3. 11 Ibid. 12 Ibid., p 72. 13 Ibid., p 80. 14 Ibid., p 83. 15 Ibid., p 59. 16 Ibid., p 85. 17 Levinas, Totality and Infinity, p 283. 18 Levinas, Dieu, la Mort et le Temps, (my translation) (Paris: Grasset, 1993) p 100. 19 Levinas, ‘The I and the Totality’ p 19. 20 Ibid., p 20. 21 Ibid. 22 Levinas, Totality and Infinity, p 300. 23 Levinas, Totality and Infinity, p 24. 24 Ibid., p 170.

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Julia Ponzio Ibid., p 192. Levinas, Otherwise than Being, p 149. Levinas, Totality and Infinity, pp 242–3. Ibid., p 242.

Chapter 2

Levinas, mercy, and the Middle Ages Marty Slaughter

‘Justice itself is born of charity . . .’1

1. Beautiful justice and sublime mercy In ‘Yoma’, one of his Talmudic readings, Levinas comments on the following Biblical narrative: Saul has destroyed the Gibeonites and they seek redress from his son, David. Recognising the justice of their claim to talion, David gives them seven of his own sons: five from Rizpah, his concubine, and two from Michal, Saul’s daughter and David’s former wife. The Gibeonites nail the sons ‘to the surfaces of a rock’.2 For six months after the execution, Rizpah covers their bodies nightly to protect them from the birds and beasts. For Levinas, the Old Testament narrative shows that Israel will accede to the bloody demands of justice, even if that means sacrificing its sons. It has no right to forgive Saul’s injustice. Unlike Christianity, which provides forgiveness and pardon ‘by proxy’, in Judaism only the victim can forgive.3 That the Gibeonites show no pity to the victims, however, distinguishes them from the Israelites. While Israel might have claims to retaliatory justice (as it does for the execution of its sons) it ‘does not ask it for itself ’.4 The demands of justice – talion, the rational order, Order – are inherently cruel.5 There is, however, something that ‘rises above’ – is in excess of – its implacable logic. This is the cry of Rizpah as she covers and mourns, not only the dead bodies of her sons, but also those of Michal’s sons. This is an ‘individual sacrifice’ – the ethical – which, like an arrow, rising beyond impersonal justice, ‘finds a straight and sure way’.6 For Levinas, while justice and judgment are necessarily products of consciousness, knowledge and reason, the ethical (and that includes pity, mercy and forgiveness) occurs in a relationship with the Other that originates on a pre-conscious, affective level. The encounter with the Other interrupts and shatters the subject’s self-enclosed ego; it exposes and seizes him. The ethical is excessive, traumatic, torn from the heart, beyond reason, beyond consciousness, beyond representation, reduced to a cry. For Levinas, an ideal

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justice – one that is not a totality – would be mixed with mercy and pity (rahamim).7 As he asserts, ‘[T]o recognise the priority of the objective does not exclude the role of individuals; there is no heart without reason and no reason without a heart.’8 Thus, if the ethical encounter brings responsibility and guilt, it also brings love and forgiveness. Assuming responsibility for the Other is an act of love, an ‘initial charity’,9 of mercy (miséricorde), whereby ‘one assumes responsibility for the suffering of the other.’10 As Levinas said again and again in different ways, ‘[I]t is through the condition of being [seized as] a hostage [to the Other] that there can be pity, compassion, pardon, and proximity in the world . . .’.11 For Levinas, justice takes place in the public world of law, between people who are third parties to one another. It is based on reason and rules of universal applicability that treat parties as equals. However, because law is necessarily abstract, legal judgment requires consideration of particular circumstances. Comparing and weighing particulars – equity – is subsumed under, and is part of, the application of objective and abstract rules.12 Equity is not a form of mercy but rather is a supplement to and part of justice.13 If the law is abstract, ‘particulars’ are ‘categorical’, that is, characteristics that, if not shared universally, are shared in similar cases. Law therefore compares what ethically speaking is incomparable – the singular, absolute otherness that is found in the ethical encounter14 and in so doing the juridical order ‘negates mercy’.15 It does not bring the singular, unique individual before it but rather an abstraction. The singular individual is outside of the time of narrative, category, and representation. Justice never has the ‘now’ of the Other before it. As Ponzio points out in this volume, when it comes before the law, the subject has fallen out of exposure into hypostasis and ‘economic time’, a time of reason and retribution (just deserts), a narrative of crime and punishment. Forgiveness, therefore, takes place in the realm of the ethical, in the entre nous, before the appearance of the third and justice. Levinas insists, however, that justice and forgiveness (miséricorde, compassion, pity and love) are related. While justice limits the charity and love of the entre nous, the ‘infinite benevolence to the other’, it is still grounded in it.16 Justice ‘is called into being by this very mercy with a concern to recognise all the others . . .’.17 A justice that is not tyranny, therefore, is tied to forgiveness, mercy, charity and love. But how does this work? The relation between forgiveness and justice is part of Levinas’s more general problematic of the relation between ethics and justice and critics who have analysed this differ widely. Discussing ‘Yoma’, Montefiore finds mercy and justice to be incommensurable.18 Wolcher, however, argues that rather than ethics and justice being utterly separate, there is a ‘passage’ between them, one that Levinas fails to traverse successfully because justice requires that the Other be reduced to an object of knowledge (much like uniqueness is reduced to categorical ‘particulars’) while the ethical precedes and precludes this.19 Ponzio argues for the closest connection of all: for her, forgiveness is in a constitutive and

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paradoxical relation to justice.20 It is located at the ‘interface’ between ethics and justice. Rather than being connected (and separated) by a ‘passage’, justice and ethics are related like the two sides of a cloth or coin, or like the wall of a house at once giving onto interiority and exteriority. Forgiveness turns justice inside out and opens it to questioning, critique and change. As Ponzio explains, forgiveness is different from both excuse and forgetting.21 With excuse, the wrongful past act is preserved in the present and is justified. (It is just, a part of justice, like the insanity defense which excuses homicide) while in forgetting the past act is annulled. In forgiveness the past act is neither justified nor annulled – the subject is not made innocent. Forgiveness ‘exposes’ the past act as unjustified and recognises the unjustifiable past act for which one is guilty. In its exposure, forgiveness stops the subject’s narrative of (self-)justification and reveals that he has no justification – he is guilty (‘more than all others’) and can give no account of himself that separates him from this guilt.22 His position is not ratified. Rather, forgiveness ‘turns him inside out’. As Levinas said in a different context, it ‘signifies a radical interruption in the undisturbed being of being’.23 This exposure or interruption is, therefore, the pre-condition for reformation and love. Forgiveness also comes from recognition by the Other: the purified future that pardon brings extends ‘from the Other unto me . . . it comes to me across an absolute interval whose other shore the Other absolutely other . . . is alone capable of marking, and of connecting with the past.’24 Furthermore, the Other’s forgiveness is itself just as unjustified as the past, guilty act. Forgiveness is therefore an unjustified recognition, a gift, given without reason or hope of reciprocity, ‘beyond the logic of justification and justice’.25 In the ethical encounter – the space of love and forgiveness – singularities are exposed. Thus the ethical is the reverse side or underside of totality – the totality of essence, of justice, and (since it is the space of justice), of politics. Just as the ethical encounter exposes totality, forgiveness exposes the totality of a tyrannical justice and politics. A proper politics on the other hand ‘is the operation of turning the totality of justice inside out, to discover the ethical encounter [that is, the exposure] on the reverse side’.26 The ethical, and this includes mercy, compassion and forgiveness, turns justice inside out and exposes it to the possibility of change and betterment rather than to ratification, just as in ‘Yoma’, Rizpah’s act exposes the justice of talion to compassion. Thus while love and forgiveness do not belong to the order of [ideal] justice, they ground it. For Levinas, justice must not be simply the operation of a system of law or, even worse, the imposition of power. It must rest on ethical persons – those who experience responsibility and compassion for others and can transform this into (equitable) judgments, ameliorate punishment,27 and when necessary reform the law.28 Justice that is simply the operation of law – legal justice – is an essence, a totality given to maintaining its self-enclosure. It has no underside and forecloses any relation with mercy or the ethical. It is ‘justified’ in the sense that it

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is rational, orderly, right, and rigid. There are no exceptions, no anomalies; nothing interrupts its harmony or form. Justice ‘that is simply the operation of law’ is tantamount to a justice that has the self-enclosure of the beautiful. On the other hand, love and mercy lie ‘beyond’ this beautiful totality of legal justice. They are singular and operate as unjustified exceptions, neither justifiable nor rational, neither universalisable nor part of a rational system. They interrupt the self-enclosure of legal justice just as in aesthetics the ‘sublime’ refers to what interrupts the self-enclosure of the beautiful. They are beyond totality, at once the ethical condition but also the sublime excess of justice. In what follows, I suggest that the Levinasian conjunction of justice and ethics can be found in ideas of law circulating in early Middle Ages. It was only after the twelfth century development of law as system that the legal and ethical sides of justice – verdict and mercy – were increasingly split apart, a movement that was completed by the early sixteenth century with the emergence of the modern state. Ever since, rather than being intimately related they have been conceived as contraries. As such, justice becomes a totality, that is, a political institution committed exclusively to the power of the state and mercy its dangerous supplement.

2. Medieval justice and mercy The origins of the western legal system as system and science can be traced to the twelfth century renaissance in legal studies.29 Prior to that, earthly justice and mercy were modelled on God’s divine nature and were discussed in scholastic theological works, specifically in relation to sin and divine forgiveness (the seminal account was Anselm of Canterbury’s Cur Deus Homo).30 The model for all law – ecclesiastical and civil – was based on the Christian narrative of sin and salvation. Sin was transgression of divine law, an offense against God as sovereign of the cosmos punishable by eternal death, that is, damnation. Judgment on earth was given in the confessional, to be repeated at the end of time. He who makes the law, however, can dispense with it and God dispensed with His law through His mercy. Here, what is meant by mercy is God’s compassion, pity and forgiveness of man’s original sin, effected both through the Incarnation and Atonement of Christ, as well as His forgiveness of man’s subsequent sin through grace in the sacrament of Penance. Divine mercy both forgives guilt and pardons the punishment of eternal damnation. It effects (spiritual) reformation and renewal and restores the sinner’s bonds of love with God. Secular law was but a pale copy of divine law and the monarch was seen as the agent of divine justice; from this he derived his prerogative power as the fountain of justice and mercy. And although secular law was distinct from ecclesiastical law, secular justice incorporated the theological concepts of charity and mercy in the form of negotiated settlements where ‘love was

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preferred to law’, as well as in the institution of sanctuary which turned on forgiveness and reconciliation, often to the exclusion of punishment (repentance being sufficient punishment). In the period before legal systematisation, therefore, justice and mercy were not opposed.31 In both theology and law, canon and civil, they were intertwined and formed a seamless, if mysterious and paradoxical, whole; they coexisted as one body just as they did in God. Mercy was part of justice and vice versa.32 Charity and compassion worked not only through forgiveness, dispensation and pardon but also through equity, which was considered to be part of mercy. Equity and mercy were interchangeable terms meaning the application of the Christian virtues of charity and benevolence to specific cases, the benign interpretation of law and compassionate consideration of circumstances which balanced out the rigour, that is, the strict application, of the law.33 Divine mercy and justice were administered through His Church and its canon law and while this was not exclusively concerned with penitential matters, a good deal of it was. Canon law punished transgression by the clergy and laity, either privately in the ‘internal forum’ of confession or, as became the case, publicly in the ‘external forum’ of the ecclesiastical courts (these prosecuted grave and public sins like heresy, simony and adultery). In both fora, the sinner sought forgiveness and begged pardon. Both rendered a judgment and imposed a sentence, that is, penitential works that suited the sin. Forgiveness and, more importantly, reconciliation came upon completion of these. Issues of crime and punishment, law and equity, justice and mercy were therefore integral to the medieval penitential economy and many of the developments in the emerging science of canon law were associated with matters relating to the penitential scene of judgment be it in the confessional or the ecclesiastical court. After the twelfth century legal revolution, however, man’s relation to divine mercy and justice came to be cast specifically in legal terms. Both canon and civil law were by now increasingly affected by the newly discovered Roman law. Mercy became less a theological construct and was increasingly juridified. Although canon law was systematised and rationalised, however, it was necessarily concerned not only with sin and punishment but also with forgiveness and salus animarum, the salvation of souls. It was, therefore, a unique and often unstable combination of the theological and the legal, more theological before the legal revolution, more legal after it. Secular law was more heavily beholden to Roman law and the contingencies of the political and to a greater extent separated the theological from the legal. Canon and secular law, however, existed in a symbiotic relationship and the secular retained a great deal of the theological. Thus, while developments in secular law did not entirely follow developments in ecclesiastical law, they were thoroughly influenced by them. Ultimately there are few developments in civil law that do not bear the mark of canon law (and vice versa).

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With the rediscovery of Roman law jurists made several distinctions: between justice and mercy, mercy and equity, mercy and forgiveness. In the process, equity and mercy were split apart. A large part of what had been understood as mercy became the legal principle of equity and then gradually equity was associated with (legal) justice. Thus, much of what had been an ethical principle (reflecting divine mercy) became a legal principle (following the reasonable dictates of equity). For example, whereas a sentence or judgment had previously been given out of compassion now it was given on the basis of reason. Rather than being the charitable interpretation or application of the law, the equitable decision became the ‘correct’ one. By the late Middle Ages, following Aquinas, Gerson and St German, equity was wholly subsumed by legal justice and considered to be a normal part of every legal judgment.34 By Blackstone’s time, it was a commonplace that equity was another form of law.35 After equity was disassociated from mercy, what remained were indulgence, remission, mitigation and dispensation. These were increasingly seen as gratuitous and thus ultimately considered to be irrational, undeserved gifts as opposed to the rationality of equity and rigorous application of the law. Even this ‘irrational’ mercy was to be increasingly juridified. In the ecclesiastical domain, after ecclesiastical courts developed in the thirteenth century, a distinction was made between the two ‘uses’ of mercy, that is, forgiveness and pardon. Forgiveness was the absolution of guilt given in the confessional. Mercy was the full or partial suspension of the penance or ‘sentence’ given in the confessional or by an ecclesiastical court.36 As the rationale for penance changed from reconciliation to retribution and deterrence, however, remitting punishment became increasingly more rare.37 Furthermore, with the development of the doctrine of Purgatory, and under the influence of the increasingly retributive character of ecclesiastical courts, emphasis in the confessional shifted from repentance and reconciliation to satisfaction for sin and the exact calibration of penance/punishment.38 Following upon this, indulgences were created as a kind of merciful forgiveness or remission of the temporal punishment to be suffered in Purgatory. Indulgence was no longer given out of charity but more usually as a quid pro quo for the performance of increasingly ritualised penitential acts (like visiting a church) or ultimately for gifts of cash. In the secular realm, due to political upheavals in both Church and state, by the sixteenth century mercy was increasingly seen in terms of the untrammelled power of the sovereign – be it Pope or King – that needed to be brought under control. It ceased to be an ethical or even jurisprudential issue and became a political one. The changes became apparent in the different fate of mercy in the law of crimes as opposed to torts. In criminal, public law the near disappearance of mercy and forgiveness in the name of deterrence, law and order was stark.39 Whereas justice had once worked with mercy through the institutions of sanctuary and negotiated settlements to effect forgiveness

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and reconciliation, justice was now defined as retribution, the strict application of law. Justice as retribution was the norm, mercy the exception. Justice was defined as law with little outside, under or beyond it. Justice – characteristically blindfold and holding a sword – became like the self-enclosure of ‘the beautiful’, mercy became its sublime, mysterious, excess. Their Christianity notwithstanding early medieval conceptions of charity and pardon and their relation to justice bear a striking resemblance to that found in Levinas. Charity, forgiveness and mercy lay beyond the public nature of law; they were neither politically justifiable, nor rational, nor part of a rational system. Their application was singular and operated as the exception that divine sovereignty allowed itself. As such they were incomprehensible to the public law logic of crime and punishment, and could not be subsumed to legal categories or knowledge – into which they were later pushed with the creation of ‘equity’. Mercy, effected with and through affect in the name of an unknowable divine Father, cannot be brought into or subordinated to the rational system presided over by a human sovereign without severing its connection with the ethical. Thus history instructs us that early medieval justice was more amenable to the kind of opening that Ponzio in this volume sees in Levinasian forgiveness. Just as for Levinas the closure of the law is interrupted by the traumatic ethical encounter, so too early medieval conceptions of justice (modelled on divine justice) were interrupted by more humane albeit theological conceptions of compassion and mercy. The trauma and drama of repentance led to compassion and forgiveness, rather than retribution. Justice was founded on compassion and pity and was compatible with mercy. There was a space in the early Middle Ages where justice could be turned inside out. Does this mean that Levinasian discourse is not only Christian but also nostalgic? As we have seen, since the end of the Middle Ages, justice has been understood as a rational system of law and order that – however modified by equity – is cut off from the ethical. This is the very legal system and idea of justice (they are one and the same) that is exceptionally ‘left to itself ’ and is in Levinas’s terms ‘inherently cruel’. To say that Levinas’s view of mercy is nostalgic implies that it is longing for something lost. Nothing is ever that simple, however. Nothing vanishes and the limitation and repression of mercy had consequences for a network of institutions and individual expectations. Indeed, as the law became more abstract and more removed from the ethical encounter, the ethical encounter was developed in art. Although mercy was repressed in the confessional and in both the ecclesiastical and secular legal systems, the repressed returned – in the form of mysticism, popular devotion (to the Passion of Christ, the Holy Blood and Wounds, the Mother of Mercy and Sorrow and so forth) and art. In the fourteenth and fifteenth centuries, therefore, the place to find mercy and forgiveness was not in the confessional or in the courts, ecclesiastical or secular, but rather in religious art and imagery, which I will now turn to. Here we find something strikingly similar to Levinas’s encounter with the Other,

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which, like his writing, performs the ethical. But, first we must ask: is Levinas’s oeuvre Art?

3. Levinas and Art There might be an initial objection to using Levinas to discuss art since he had a well-known antipathy to the visual and to the ‘image’. As we shall see, however, this is not as straightforward as it is generally thought to be. As Crignon argues, although Levinas tries to banish the visual image, it nevertheless chases him.40 There are several questions here. While Levinas’s early work is hostile to all forms of art, his later work clearly admits poetry (‘Saying’) as a kind of ethical behaviour because it interrupts consciousness and being and exposes the subject to the Other. In poetry the Said is displaced by the Saying only to return as a ‘justified’ Said (based on a prior Saying).41 Thus three questions arise: (i) whether there is a definitive and crucial distinction between the ethical import of poetic language and the visual; and, if there is, (ii) whether it can be maintained; and, finally, (iii) whether in fact Levinas maintained it. Here the signals are mixed. Levinas’s early writings on the image, particularly ‘Reality and its Shadow’, have been widely discussed.42 While he argued that all art can be reduced to the visual image it is clear that he equated ‘image’ with representation. His first problem with visual art is that it reduces singularity to form. In so far as an image is a representation, its function is to grasp things and make them visibly known. In another idiom, this is the classical adequation of concept and image. This, then, clearly explains Levinas’s antipathy to imagery in so far as it reduces the idea of the Other to the Same. Furthermore, the representational image is self-enclosed and static, frozen in time. As such it denies the infinite change and hence absolute uniqueness of a unique Other. In a different idiom, this means that the image evicts both soul and body: its soul that is infinitely variable, its body with its changing materiality. In this sense, the image is an idol or a graven image and this is in line with the orthodox view of Levinas’s discourse as belonging to the tradition of Jewish iconoclasm. In terms of the history of art, Levinas is here thinking of the image associated with the beautiful of the classical tradition, which was reinstituted in the Renaissance. He therefore rejects the image understood as mimetic representation, which in visual art manifests itself in contour, perspective and narrative. The second problem for Levinas is that in experiencing visual art, the subject is absorbed by and participates in art’s ‘rhythm’. Levinas concluded that, ultimately, the experience of art, be it visual or linguistic, was merely aesthetic, which means non-committed. Hence it could not be a form of, or lead to ethical behaviour. It was rather an evasion. In his work after Totality and Infinity, however, Levinas’s attitude toward art changed. This was tied to his evolving theory of the relationship between Eros and the Face, which in turn is tied to the relation between

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sensibility and the ethical. I will now examine these with a view to articulating Levinas’s relation to art beyond the usual assumption of his iconoclasm. As we have seen, Levinas saw the image as representation. This is explained when we consider his view of sensibility which, in Totality and Infinity, is on the side of consciousness. Both ultimately come down to vision and visibility. Sensibility as consciousness presents what sight has grasped and known. This, of course, is precisely what cannot found the ethical relation. The ethical experience of the Face of the Other is pre-conscious; it comes immediately, not through sensibility; the Other, therefore, can neither be sensorily nor rationally comprehended. The ethical experience of the Face must be separated from sensibility/visibility and this in turn means it is separated from the body (particularly Eros or the erotic body). There is a problem here, however, one that most readers of Levinas experience in coming to grips with his discussions of the Face of the Other. On the one hand the Face is not visible; in order to maintain the degree of transcendence that he insisted on, it must be separated from body. On the other hand, both the Face and the caress cannot be so separated from bodies as to preclude their mutual implication, the ‘relation’ of one body to the other. So, while the Face of the Other cannot be reduced to something that is seen, it nevertheless looks at me and calls to me (and looking and calling rise from the body). Thus, the problem is that ‘if the Face of the Other can be free . . . without a body, how could it touch me?’43 I can only know the Other because he is a material body, a physical presence, a widow or orphan. This is the Scylla and Charybdis Levinas tried to negotiate with the idea of Eros and the caress. In one way, the encounter with the Face is similar to a caress in that both parties seek an alterity that cannot be grasped. The erotic relation in the caress is, however, different from the ethical or ‘chaste’ encounter with the Face. For Levinas, Eros seduces with its beauty. If it is to be ethical, however, the encounter with the Other cannot end in seduction, that is, it cannot become immanent, cannot be absorbed by desire and its body. The Other cannot be grasped or assimilated in Eros, for like representation, this ‘participation’ reduces the Other to same. To be ethical, the encounter with the Face must be transcendent; it cannot be reciprocal, which is to say, cannot be ‘for me’. After Totality and Infinity, however, Levinas rethought the sensibility of the subject, and also the relation between Face, Eros and the erotic body. Body and sensibility are no longer kept apart but rather approach and are in ‘proximity’, which means that there is contact with the Other without objectification.44 A caress implies the existence of a body; it is only the ‘corporality of the subject that renders it sensible to the Other’.45 In Otherwise than Being, therefore, the encounter with the Face is reconceived as a carnal, bodily relation. The immediacy of the encounter with the Other is thought through the flesh/body, where the Face coexists with the carnal.

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In ‘Language and Proximity’ this is shown to involve a reconceptualisation of sensibility. Sensibility is no longer an event of distance and knowledge on the side of consciousness deriving from sight. Rather sensibility must be interpreted as touch first of all.46 Sensibility is what passes, what touches. It is disengaged from consciousness, indeed shatters it.47 Sensibility is the event that interrupts my ego in my contact with a ‘singular passing’.48 The ethical and the sensible are now intertwined and cannot be separated. Ethics is, therefore, experienced in sensibility, in a material and tangible manner, as proximity, as body to body. In Otherwise than Being what was the eroticism of the caress is now obsession, vulnerability, exposure and proximity. The new intertwining of the ethical and the sensible is manifested in language, in the circulation of the Saying in the Said. Saying is the sensible that interrupts the conscious thought of the Said. As Bruns has lucidly shown, Levinas came to admit ‘poetry’ as art that gives access to alterity and thus to the ethical.49 ‘Poetry’ is a kind of Saying of the Said, what touches and moves. Poetry as Saying interrupts the Said and brings proximity or contact with what is other and arguably is what Levinas performed in his unique style of writing.50 It approaches, contacts, is in proximity with what is other to and before consciousness. Levinas’s later reconceptualisation of sensibility, however, also means that vision, too, is no longer on the side of consciousness; rather it is part of the tactile, a kind of touch. ‘Sight is, to be sure, an openness and a consciousness, and all sensibility, opening as a consciousness, is called vision; but even in its subordination to cognition, sight maintains contact and proximity. The visible caresses the eye. One sees and hears like one touches.’51 Since vision is proximity or contact, there is no necessary break between vision and the ethical. If proximity or touching is called ‘poetry’, then ‘poetry’ is no longer purely linguistic; it can include the ‘poetry’ of the visual. In the experience of sensibility – including visual ‘touching’ – ‘life is there’.52 In seeing and hearing, the subject and the Other are in contact, they touch; the subject is implicated.53 The same is true when it comes to the experience of visual art since the subject encounters alterity through sensibility and that includes vision. Vision can give access to the encounter with alterity. It is installed at the heart of the ethical. Crignon has an ingenious argument that links the relation between the Face and Eros with the art image. What is interesting is the way in which he closes the circle by relating Eros/body to art and the image (in what he calls ‘figure’). Roughly, he seeks to displace the encounter with the Face as originary. This undercuts Levinas’s conception of the image as the cadaver or empty casing of alterity. Crignon argues that, ultimately, what Levinas opposes is not the visual or the image per se, but rather the image conceived solely as representation. The proximity of beings is between flesh and blood, between ‘two vulnerabilities stripped of form’.54 They are neither incorporeal nor invisible, but neither are they representations.55 Contact in proximity is

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a kind of figuration, like a trace or drawing.56 As figure or trace, visual art can be what comes near, what touches and moves, what divests and exposes me. If the carnal moves and touches, so too does art. The visual follows from the carnal body that is implicated in the ethical encounter. ‘The image is continually reborn of the body . . . Figuration is the necessary secretion of a body.’57 Crignon concludes that just as there is a drive to Eros – to the sexual ‘touching’ that brings forth the ‘figure’ of the child – so too ‘art is already announced in the relation to the Other by virtue of a compulsion to figure.’58 There is no encounter, ethical or erotic, ‘that does not initiate a movement toward figuration’.59 Levinas’s ‘chaste’, ‘upright’ encounter with the Face cannot be isolated as primary or originary. The drive of Eros is just as ‘originary’ and figuring is as primary as Eros.60 The very experience of alterity – necessarily connected with the body (and its drives) – brings forth its figuring. Thus, although Levinas tried to free himself of the image, what he shielded the Face from is not the image, but only representation. Once the mimetic image is disfigured and deformed, the way is open for art to give access to the ethical. Indeed, to some extent, Levinas did concede that visual art could bring a kind of proximity, which is to admit it could be the basis for ethics. In two little-known works written late in his life, he discussed the work of the painter Jean Atlan and the artist-sculptor Sacha Sosno.61 Levinas called Sosno an artist of ‘obliteration’. His work presents ‘realistic’ images but also distortions and disfigurements of them. These create an uncanny depth and interiority that oscillates with the realistic exterior and suggests the unfigurability of what lies between the two. Levinas’s brief discussion of Sosno’s work indicates his tentative inclusion of visual art in the ethical. As he had maintained from the beginning, the problem with the beautiful image is its totality or self-sufficiency. In its perfection, it ‘imposes silence without caring about anything else’.62 At their most successful, Sosno’s ‘obliterations’ rupture this perfection. Art can therefore be ethical when (or to the extent that) it exposes totality and interrupts the self-sufficiency of the beautiful image. Levinas goes on to state that art also presents being in its tangible properties and lets this be contemplated. It is in contemplation that (some) art can lead to the ethical: ‘This contemplation is a dis-inter-estedness. Furthermore, isn’t contemplation a generosity of the self, a gift-to-the-other, a benevolence which interrupts the inter-ested effort of persevering being?’63 In the best of Sosno’s work ‘obliteration’ creates and invites speech: ‘. . . there is a call . . . to being-for-the-other . . . [it leads] to the Other.’64 For Levinas it is Jean Atlan’s work that most successfully ‘surmounts’ these problems. Atlan’s semi-abstract paintings are marked by broad flowing lines (sometimes resembling calligraphy) and strong colours. In Atlan’s painting Levinas seems to have found qualities that break the silence of the beautiful and suggest an access to alterity: the movement of Atlan’s ‘figures’ blocks the spectator’s gaze from fullness. This kind of image is precisely

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linked to the ethical; it performs the ethical. ‘Abstract painting, perhaps that’s it. Chaste eroticism, tenderness, compassion and perhaps forgiveness/mercy.’65 And if, as I have previously indicated, these qualities were no longer tied in later medieval legal systems, there were exactly what is to be found in the contemporaneous religious art.

4. Medieval Devotional Art Levinas once said that what he says ‘about the face of the neighbour, the Christian probably says about the face of Christ.’66 As we have seen, the God of western Christianity was one whose justice was tempered and overcome by love and mercy through the Incarnation and Atonement of Christ. Along with this went the widely disseminated ideal of the imitatio Christi that emphasised Christ’s humanity – his body and its passions, his affects and suffering, which suffering was directly tied to his compassion. Imitating Christ required that the Christian be humbled and devastated in the same way Christ was humiliated in His passion and death on the Cross. This devastation was meant to bring a kind of reflexivity that shatters the believer’s self-enclosed pride and acts as a catalyst for the most important step, opening his heart and imitating God’s love. Imitating Christ’s (com)passion, therefore, became the basis of Christian ethics but the only access to this compassion was through affect and suffering. One of the main sites for experiencing the ethical dimensions of imitatio Christi, as well as the ethical agency of the body’s affects and suffering, was in devotion that focused on the passion of Christ. In devotional exercises, the scenes of Christ’s passion were rendered in minute and pathic detail meant to stage an encounter with an exposed, vulnerable and suffering Christ. This encounter is rendered in terms that are remarkably similar to the Levinasian encounter with the Other. In devotion to the passion, the image of Christ calls to the devotee for and with love and forgiveness. It touches and pierces the hardness and self-enclosure of the devotee’s ‘heart’, charging him to take responsibility for the suffering he has caused. Thus exposed, he is seized with guilt and sorrow and his own love and compassion are awakened. Images of the passion were therefore meant to be traumatic and transforming: they were in the words of a contemporary monk, ‘tools which are able to penetrate the heart and to wound the mind because nobody has such a heart of stone that looking at a tortured person could not feel compassion with him/her.’67 The devotional image that became the prototype for all others is the figure of Christ as the Man of Sorrow or Imago Pietatis. This is a close-up of the crucified Christ’s head and torso. Displaying his wounds, Christ faces the viewer, destitute, pitiful and pitying, calling to the one whose sins are responsible for his suffering. (The epitome of this genre is Meister Franke’s paintings of the exhausted, imploring, pitiable and pitying Man of Sorrows.)68 Here the Levinasian encounter with the

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Face is most obvious: it is classically the Face of the suffering Other who wounds me. In Totality and Infinity Levinas’s language was that of Eros, fecundity and caress, the hand that seeks but never grasps. Eros and the image hold out the possibility that the Other will offer recognition and forgiveness and ‘repair’ the separation between self and Other. In Otherwise than Being his style of writing is rather more fraught and the ethical is described in terms of vulnerability, exposure, approach and proximity. Whereas earlier Levinas had presented an unambiguous depiction of the encounter with the Other as a place of love, forgiveness and recognition, in Otherwise than Being, the encounter is deeply ambiguous. There is maximum tension between love, recognition and forgiveness on the one hand and obsession, pain and guilt on the other (and this is not unlike the tensions of late Gothic art). At one moment the Face of the Other is a place of love, at another moment it is something that terrifies and devastates, intimating the devouring void of the il y a. Thus while the encounter with the Face can be a source of caress and recognition, in the very act of forgiveness as a turning inside out, it can also slide into a place of isolation, terror or nausea. Just what is terrifying about the Other is the subject of discussion. For Assoun it is the terror of the il y a, of the abyss, ‘the Neuter’s primitive shadow’ reflected in the Face of the Other that threatens to swallow up the subject.69 For Critchley, it is the utter devastation of the Other, his (mute) screams and cries (not unlike those of Rizpah), all that remains after his singular characteristics have been reduced to consciousness and understanding. These (mute) screams recall the subject’s own devastation, ‘the pre-history of the subject in its essential intrication with alterity’.70 It is from, because of, and with this devastation, however, that responsibility, forgiveness and compassion enter the world. Late Gothic art shows a similarly paradoxical approach to presenting the Other’s unrepresentable suffering and love, and the face of Christ that was earlier presented as the beloved becomes something rather more strange. The images simultaneously present the beautiful as well as the horrifying and traumatic aspects of the encounter with (divine) alterity. While devotional art was characterised generally by its detail and in the early Gothic period tended to be elegant and beautiful, in late Gothic art the tendency toward the beautiful diminishes and it is precisely the traumatising ‘details’ that appear. The pictures of Christ’s passion and images of his wounded and bleeding body become increasingly more ‘gothic’ – morbid, repulsive, grotesque and not a little mixed with the erotic. As Huizinga quite accurately wrote in the ‘Waning of the Middle Ages’, passion devotion ‘bore the mixed smell of blood and roses’.71 Nowhere is this more apparent than in portrayals of Christ’s wounds and blood that metonymically represent the ‘opening’ to divine alterity. These are neither conventional iconography nor are they mere illustrations of an

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‘event’ or detail of Christ’s passion. Rather they become the focal point for the problematic of an alterity that is in excess of understanding and representation. The depictions of wounds and blood are excessive and suggest the breakdown of form that moves towards the formless. The wound is either a void, too far away or it is a living monster, too near. They become increasingly distorted, surreal and macabre. Freed from consciousness and reason they become vehicles for expressing preconscious affects. The image and its encounter become fraught with indeterminate guilt, remorse, suffering, anxiety, agitation. The figure is disfigured. The images shatter or deform the self-enclosure of beautiful form and move toward the unrepresentable sublime. In late Gothic art, the artistic wounding and piercing of Christ’s body is almost obsessive. There are literally scores of pictures showing Christ’s entire body speckled with small wounds and/or drops of blood, in every conceivable variation – rain drops, polka dots, measles, splashes, streams.72 At the other extreme, illustrations show Christ’s blood spewing forth in enormous drops that engulf his figure or drown it in puddles.73 The breakdown in representation is apparent in other devotional images. Objects are set free from the constraints of narrative and perspective. Where the arma Christi had once been neatly arranged like a table of elements, now the spatial arrangement breaks down and they float around the cross like objects in a bad dream.74 The body disintegrates. Severed hands and feet (Christ’s) freely mix with the instruments of his torture. There are heads without bodies and blindfolds without faces. In an otherwise straightforward picture of the Trinity, a detached hand creeps over the horizontal bar of the cross.75 With the breakdown of structure, the images become grotesquely erotic. Christ’s side wound was often detached from the body and pictured by itself in resemblance to two parted lips (ostensibly based on the idea that the wound provides life-giving nourishment). These become rounder and plumper, sometimes coloured an alluring (and somewhat nauseating) pink.76 In one painting, a large rose-coloured wound at the foot of the cross – said to be the exact size of Christ’s side wound – overwhelms the crucifixion scene.77 The images become clearly obscene. In one engraving, the lips open wide to show a fleshly middle that squirts drops of clear liquid. If the viewer has any doubt about its erotic overtones, these are laid to rest by the accompanying image of a bullet-shaped nail that can only resemble a penis.78 One of the most interesting aspects of late passion art is the excessive way it explores and exploits the flesh of Christ’s wounds. Welts rise; flesh tears. Many pictures realistically figure the size of the wound, the irregularity of the ‘hole’, its depth, convolutions, layers of flesh and bone, the torn skin, swelling, bruising, body hairs, etc. The edges of the wound are jagged and bits of skin, muscle and blood are mixed together in thick swathes of paint. In one painting, the swelling around the side wound is raised in the shape of a tennis ball.79 Excessive care is taken with the colours of

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the suffering body – the eyes are darkened with circles or reddened with tears, blue-gray lips are painted against pallid skin tones. The colouration of the wounds and bruises is lavish – mixtures of grey, purple, green, and yellow. (This reaches its artistic climax in Grunewald’s Crucifixion in the Isenheim altarpiece. The wounded body is as horrifying as it is beautiful.)80 Finally passion art often emphasises the static, dumb, material and fleshly qualities of the body that recall the nausea of il y a, the material world devoid of objects and their forms. The malleable properties of the flesh are exaggerated. One Bohemian cross gives us a skeletal body in which the emaciated arms and legs are elongated like ropes of taffy and end in splayed fingers and toes that resemble a cartoon frog.81 In other paintings, the soldier’s lance is thrust deep into Christ’s side and seems to actively probe the wound. In one mud-coloured statue, Christ calmly digs his fingers deep into the side wound and pulls back the flesh as though it were play dough.82 The grotesque body is matched by the grotesque and distorted facial features. In the Roettgen Pietà the Virgin’s facial expression is a cross between pain, grief, grimace and menace.83 The division between inside and outside collapses: at one moment the wound opens into an unfathomable interior; at the next moment the interior spills out and grows into something inhuman. Statues, especially Pietàs, were a popular medium to emphasise the materiality of the wounds and the congealing blood. It does not seep or dribble but sticks to the surface of the body, forming thick and viscous globs of organic substance that in some of the more grotesque examples looks like an elaborate fungus. Blood coagulates, piles up, hangs there and goes nowhere; it gives the impression of an organic, almost living, thing.84 Late Gothic art, therefore, does not present a beautiful image but one that is interrupted, either by lack or excess. The only response to this art (when it is well done) is horror and compassion for the picture of Christ as the devastated other. Just as mercy and forgiveness deform law, so late Gothic art deformed the self-enclosure of the well-formed, beautiful image and in so doing performed the ethical experience of compassion and forgiveness. In this, it is the visual form of the interaction between the Saying and the Said.

5. Epilogue As we have seen, in his later work Levinas expressed the concepts of totality and its exposure in terms of the Saying and the Said. Proximity and the approach to alterity are performed by the Saying that interrupts the (dis)closure of the Said. The Saying is the vulnerability that keeps the subject open to the Other. It is what cognition and representation have left behind, the trace of what has passed by, what circulates in the totality of the Said.85 In the Middle Ages, the passion image produced a Saying in excess of the Said. It

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figured a truth that was in excess of the written word; it elicited compassion and forgiveness over the cold logic of a rational law. With the coming of the Reformation, however, the visual image was either repressed in a violent iconoclasm, or reduced to a pedagogy no less violent. There was only the Word, sola scriptura, the law and the Said of the Biblical text. That Said is also the earthly law and the Reformation completed the development of law as a rational system that was retributive and punitive. With the suppression of the image went the suppression of mercy and forgiveness. Briefly, the Reformation accomplished this in two moves: First, it denied the jurisdiction of the Church and with that the forgiveness of sin on earth (and in Calvin’s account in eternity for all but a few). Second, it assumed the irreparable depravity of man that needed to be controlled through the iron hand of the law. This was embodied in the all-powerful sovereign. (In contrast to the devastated face of Christ, the icon of the Reformation might well be Holbein’s great portrait of Henry VIII with its massive frame, jutting chin, bull neck and barrel chest, clenched fists and prominent codpiece, arms akimbo, feet planted wide, imposing, pugnacious, authoritative, assertive, commanding.)86 In the Reformation, the visual was put aside in favour of the written word, affect in favour of reason, mercy in favour of law, forgiveness in favour of punishment. Each is a movement from Saying to Said. Reducing justice to the Said of law excludes body, drives, sensibility, aesthesis, pathos and the ‘event’ or ‘occurrence’ of alterity. To exclude Saying or ‘poetry’ in favour of the Said – be it in language or, I would say, in art – is to exclude seizure by the Other and with it compassion, mercy and forgiveness. This shift from the visual to the textual, from mercy to legal justice, from the Saying to the Said was rendered in art by Lucas Cranach, Luther’s court painter and the official artist of the Reformation.87 His 1538 Crucifixion with the Roman centurion, Longinus, is typical. It is ‘thin, dry, two dimensional, inert’.88 Against a dark background, a mustard-coloured figure of Christ hangs on a cross that stands on a mound of grey stone. In contrast to the rich colour and detail of late Gothic art, and like the abstraction of a rigorously imposed law, the body is standardised and formulaic, an essence rather than existent. To the side of Christ, Longinus points to the crucifix and lays down the law. Painted across the panel are the words of the Gospel, ‘Truly this was God’s son’. The figure of Christ stands in the middle of the sentence, inside ‘implied quotation marks’, materially and syntactically embedded in the Gospel quotation. This is a scene that ‘takes place more in words than in a world’.89 The words are to be believed with little experience and even less sensation. Truth does not lie in experience (as for example an encounter with Christ) but ‘in faith in words’, in the unjustified Said, in the law laid down by the book.90 This is the word and law not as holy icon but as sacred idol. This is our world where bodies are arranged like lines on a printed page, abstracted, flattened, packaged, put on a grid, and more to the point, easily

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managed.91 These cannot be ‘turned inside out’ to recall Ponzio’s phrase. This is our world of legal justice – all form, no colour; black and white; yellow tomes and grey men, a world leached of the colour and critique of forgiveness and mercy. James Elkins once said that the force of art is ‘a nameless pushing’ to something that has not and cannot find presence – empathy, the numinous, the aura, the uncanny, enigma, abject, the trace.92 In painting that force – the encounter with the alterity beyond mimetic form and representation – is achieved through colour. Colour forms but also deforms or ‘obliterates’, as Levinas said of Sosno. As Kristeva has pointed out, colour is the ‘shattering of unity and meaning’,93 a tool for deviating from representation: ‘By overflowing, softening, and dialecticizing lines, colour emerges inevitably as the ‘device’ by which painting gets away from the identification of objects.’94 It is the non-verbal, non-representable side of art, more mobile, fluid, and heterogeneous than the literal word. In art, colour is what turns form inside out to expose the affects of existents – compassion, forgiveness, mercy, tenderness, the trace of the infinite passing by. It is the green of bruised wounds and the black of sharp thorns which create affects and their effects. These are the colours of living – green, red, purple, black – and are ‘perhaps the beginning of all compassion, forgiveness, mercy’.95 If there is a place in art for mercy and forgiveness, for the Saying in the Said, it is here.

Notes 1 Levinas, Entre Nous: On Thinking-of-the-Other, trans. Smith, M and Harshav, B, (London: Athlone, 1998) p 107. 2 ‘Toward the Other: From the Tractate Yoma,’ in Nine Talmudic Readings, trans Aronowicz, A, (Bloomington, IN: Indiana University Press, 1994) p 26. Yoma is from Hebrew yom, day; it is an abbreviation for Yom Kippur, the Day of Atonement. 3 Ibid., p 26. 4 Ibid., p 29. 5 Ibid. 6 Ibid. 7 Ibid., p 28. ‘It is that special form of pity which goes out to the one who is experiencing the harshness of the law . . .’ The Jew ‘must know pity’ as well as ‘be capable of disinterested acts [justice]’. Ibid. 8 Ibid. 9 Levinas, Entre Nous, p 106. 10 Levinas, Is it Righteous to Be? Interviews with Emmanuel Levinas, Robbins, J (ed.), (Stanford, CA: Stanford University Press, 2001) p 146. 11 Levinas, ‘Substitution’, trans. Atterton, P, Noctor, G, and Critchley, S in Peperzak, A, Critchley, S, and Bernasconi, R (eds), Emmanuel Levinas: Basic Philosophical Writings, (Bloomington, IN: Indiana University Press, 1996) p 91 quoted in Critchley, S, Ethics, Politics, Subjectivity, (London: Verso, 1999) p 183. 12 ‘In the necessity of being concerned with justice [with comparison and judgment] the idea of equity appears the basis of objectivity. At a certain moment, there

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Marty Slaughter is a necessity for a “weighing,” a comparison, a thinking. . . .’ (Levinas, Righteous, p 166). For Levinas, justice means judgment and verdict – the pronouncement of fault and guilt – rather than punishment. Once the verdict is reached, Levinas allows for – indeed almost demands – ‘consideration of the person judged guilty’ (Levinas, Righteous, p 231). In the spirit of ethical benevolence, the rigour of the law is ‘always to be mitigated’ (ibid., p 206). Justice is ‘always to be perfected against its own harshness by abatement, mitigation or deferral of the punishment and this is merciful’ (ibid., p 206), ‘a surplus of charity over justice’ (ibid., p 231). Nevertheless, while mercy might be permissible as the abatement of a sentence, this can only come after a judgment [of guilt] is reached (ibid.). Thus although Israel judges that it can impose a just punishment on the Gibeonites, out of compassion and mercy (represented by Rizpah) it chooses not to. Mitigation and pardon after judgment are thus related back to the ethics of love and forgiveness. Levinas, Entre Nous, p 104. Levinas, Righteous, p 230. Ibid., pp 206, 230. Ibid., p 230. Montefiore, A, ‘Levinas and the Claims of Incommensurable Values’, (2002), 8 Parallax, 90. See also, Ansorge, D, ‘Thinking about God after Auschwitz’ in Good and Evil after Auschwitz, Bemporad, J (ed.), (Hoboken, NJ: Ktav Publishing House, 2000) pp 77–90. Wolcher, L, ‘Ethics, Justice and Suffering in the Thought of Levinas: The Problem of the Passage’, (2003), 14 Law and Critique, 93. Ponzio, J, ‘Recognition and Forgiveness,’ in this volume. Here Levinas follows Jankelevitch, V, Forgiveness, trans. Kelley, A (Chicago, IL: University of Chicago Press, (2005), orig. pub. 1967). This quote, from Ivan in Dostoevsky’s parable of the Grand Inquisitor in The Brothers Karamazov, was one of Levinas’s favourites: ‘We are all responsible for everything, and guilty in front of everyone, but I am that more than all others’. Ironically, this is precisely the position of Christ. See Zˇizˇek, S, ‘Jews, Christians and Monsters’, (2003), 22 Lacanian Ink, 83, 85. Levinas, Righteous, p 146. Levinas, Totality and Infinity, trans. Lingis, A, (The Hague: Martinus Nijhoff, 1979) p 283. Ponzio, ‘Recognition and Forgiveness’. Ibid. ‘[J]ustice is not a legality regulating human masses, from which a technique of social equilibrium is drawn, harmonizing antagonistic forces . . . Justice is impossible without the one that renders it finding himself in proximity: This function is not limited to the “function of judgment” the subsuming of particular cases under a general rule. The judge is not outside the conflict, but the law is in the midst of proximity . . . This means that nothing is outside of the control of the responsibility of the one for the other.’ Levinas, Otherwise Than Being or Beyond Essence, trans Lingis, A, (Pittsburgh, PA: Duquesne University Press, 1981, orig. pub. 1974) p 159. ‘This kind of justice is best guaranteed by the politics of democracy since it is always open to revision and change.’ (Levinas, Righteous, pp 134, 194). See Berman, H, Law and Revolution: The Formation of the Western Legal Tradition, (Cambridge, MA: Harvard University Press, 1983), vol. 1. Anselm of Canterbury, Cur Deus Homo in Basic Writings, trans. Deane, S, (New York: Open Court, 1962, 2nd edn).

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31 Like Levinas’s pardon, mercy stood for a constellation of moral and legal concepts: benevolence, compassion, pity, charity, grace, forgiveness, pardon, amnesty, equity, indulgence, dispensation, mitigation and remission. 32 See for example Ivo of Chartres, ‘The Prologue of Ivo of Chartres’, and Alger of Liège, ‘Preface to the Book On Mercy and Justice of Alger of Liege’, in Prefaces to Canon Law Books in Latin Christianity; Selected Translations, 500–1245, Somerville, R and Brasington, B (eds), (New Haven, CT: Yale University Press, 1998). 33 See Amen, M, ‘Canonical Equity before the Code’, (1973), 33 The Jurist, 1, 257; Conklin, G, ‘Stephen of Tournai and the development of aequitas canonica: the Theory and Practice of Law after Gratian’, (1992), Proceedings of 8th International Congress of Medieval Canon Law (San Diego 1988), 369; Gallagher, C, ‘Canon Law and the Christian Community’, (1978), 208 Analecta Gregoriana, 178; Kuttner, S, ‘Harmony from Dissonance’, in his The History of Ideas and Doctrines of Canon Law in the Middle Ages, (Berkeley: University of California Press, 1979) pp 1–16; Landau, P, ‘Aequitas’ in the ‘Corpus Iuris Canonici ’, (1994), 20 Syracuse J of International Law and Commerce, 95; Lefebvre, C, ‘Natural Equity and Canonical Equity’, (1963), 8 Natural Law Forum, 122; Riley, L, The History, Nature and Use of Epikeia in Moral Theology, (Washington, DC: Catholic University Press, 1948). 34 Thomas Aquinas, Summa Theologica, trans. Fathers of the English Dominican Province, (New York: Benziger Bros, 1947, at www.ccel.org/a/aquinas/summa/ home.html), II.2, q 120; Rueger, Z, ‘Gerson’s Concept of Equity and Christopher St. German,’ (1982), III History of Political Thought, 1; St. German, C, Doctor and Student, Plucknett, T and Barton, J (eds), (London: Selden Society, 1974). 35 Blackstone, W, Commentaries on the Law of England, vol 3, Morrison, W (ed.), (London: Cavendish) pp 430–6. 36 A public sin, e.g., adultery, committed by a cleric or layman would be confessed or forgiven in the confessional and then tried in an ecclesiastical court where, after the judgment of guilt, some form of mercy might be applied to the penance/ sentence. In the case of a non-public crime, the confessor would fill this role. 37 Fraher, R, ‘The Theoretical Justification for the New Criminal Law of the High Middle Ages’, (1984), University of Illinois L Rev, 577; Fraher, ‘Preventing Crime in the Middle Ages: The Medieval Lawyers’ Search for Deterrence’, in Sweeney, J and Chodorow, S (eds), Popes, Teachers and Canon Law in the Middle Ages, (Ithaca, NY: Cornell University Press, 1989) pp 212–33. 38 Berman, Law and Revolution: The Formation of the Western Legal Tradition, pp 165–75; Olson, T, ‘Of the Worshipful Warrior: Sanctuary and Punishment in the Middle Ages’, (2004), 16 St. Thomas L Rev, 473. 39 Olson, ‘Of the Worshipful Warrior’; Fraher, ‘The Theoretical Justification.’ 40 Crignon, P, ‘Figuration: Emmanuel Levinas and the Image’, in Encounters with Levinas, Trezise, T (ed.), (2004), Yale French Studies, 104. 41 Critchley, Ethics, Politics, Subjectivity, p 205. 42 Levinas, ‘Reality and Its Shadow’, in The Levinas Reader, Hand, S (ed.), (Oxford: Blackwell, 1989) pp 129–43. 43 Crignon, ‘Figuration’, p 118. 44 Davies, P, ‘The Face and the Caress: Levinas’s Ethical Alterations of Sensibility’, in Modernity and the Hegemony of Vision, Levin, D (ed.), (Berkeley: University of California Press, 1993), pp 252–72; Levinas, ‘Language and Proximity’, in Collected Philosophical Papers, trans. Lingis, A, (Dordrecht: Nijhoff, 1987, orig. pub. 1967). 45 Crignon, ‘Figuration’, p 121.

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Marty Slaughter Levinas, ‘Language and Proximity’, p 118; Davies, ‘The Face and the Caress’, p 267. Davies, ‘The Face and the Caress’ pp 265, 267. Levinas, ‘Language and Proximity,’ p 116. Bruns, G, ‘The concepts of art and poetry in Emmanuel Levinas’s writings’, in Critchley, S and Bernasconi, R (eds), The Cambridge Companion to Levinas, (Cambridge: Cambridge University Press, 2002) pp 206–33, 229. Ibid. Levinas, ‘Language and Proximity’, p 118. Bruns, ‘The concepts of art and poetry in Emmanuel Levinas’s writings’, pp 225–6. Davies, ‘The Face and the Caress’, p 271. Crignon, ‘Figuration’, p 124. Ibid. Trace or drawing is not the same as representation. Representation freezes the thing in the present; it re-presents. Trace indicates ‘an absence that cannot be presented.’ Ibid., p 120. The idea of trace (or drawing) allows Levinas to introduce a diachrony that is not available in an image. Diachrony is like a ‘visitation’ – an ‘unexpected arrival [survenue] of the face into the world’ from a time out of time ‘where eternity is delineated’. Ibid., p 123. Ibid., Crignon, ‘Figuration’, pp 124–5. Ibid., p 125: ‘The body is never alone. Humanity begins with two, in a body-tobody – the face-to-face and the caress – from which the image as figure is born’. Ibid. Ibid. Levinas, ‘On Obliteration: Discussing Sacha Sosno’, trans. Cohen, R, (1989) 33 Art & Text, 29. The article includes plates of Sosno’s works. Ibid., p 30. Ibid., p 34. Ibid., p 40. Levinas, «Jean Atlan et la tension de l’art», in Cahier Levinas, Chalier, C and Abensour, M (eds), (Paris: L’Herne, 1991), p 621: «La peinture informelle, c’est peut-être cela. Eroticisme chaste, tendresse, compassion et peut-être miséricorde. . . ». Levinas, Righteous, p 280. Camille, M, ‘Mimetic Identification and Passion Devotion in the Later Middle Ages’, in Macdonald, A and Ridderbos, H (eds), The Broken Body: Passion Devotion in Late Medieval Culture, (Groningen: Egbert Forsten, 1998) pp 183–210, 197. Meister Franke, Man of Sorrows, c. 1420, Museum der Bildenden Kunste, Leipzig and Hamburger Kunsthalle. Originally, in keeping with the fact that it was the crucified and dead Christ, the eyes were closed and he is held upright by angels. As the genre developed, however, he is portrayed with open eyes that look straight at the viewer. See Camille, ‘Mimetic Identification and Passion Devotion in the Later Middle Ages’, pp 184, 203. Assoun, P ‘The Subject and the Other in Levinas and Lacan’, in Levinas and Lacan, Harasym, S (ed.), (Albany, NY: State University Press, 1998) pp 79–101. Critchley, Ethics, Politics, Subjectivity, p 210. Huizinga, J, The Waning of the Middle Ages, (London: Penguin, 1990, orig. pub. 1924) p 25. See e.g., Finaldi, G (ed.), The Image of Christ, (London: National Gallery, 2000) pp 146–7; Macdonald, The Broken Body: Passion Devotion in Late Medieval Culture, pp 2, 21, 201; see also images in Marrow, J, Passion Iconography in Northern European Art of the Late Middle Ages and Early Renaissance, (Kortrijk,

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75 76 77 78 79 80 81 82 83 84 85 86 87

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Belgium: Van Ghemmert, 1979); Hamburger, J, Nuns as Artists: the Visual Culture of a Medieval Convent, (Berkeley: University of California Press, 1997); Hamburger, The Visual and the Visionary: Art and Female Spirituality in Late Medieval Germany, (New York: Zone Books, 1998). Hamburger, Visual, p 139; see also Didi-Huberman, G, Devant l’image, (Paris: Minuit, 1990). These are the instruments of Christ’s passion (torches or lamp, crowing cock, pillar, scourge, crown of thorns, blindfold, robe, reed, Veronica, nails, hammer, pierced hands and feet, vinegar, sponge, spear, dice, ladder, tongs) and were often artistically supplemented by the heads of those who tormented and reviled Him. See Belting, H, The Image and Its Public in the Middle Ages, trans. Bartusis, M and Meyer, R, (New Rochelle, NY: Caratzas, 1990) pp 60, 158; Hans Memling, Virgin Holding the Dead Christ, ca. 1475, Museo de la Capilla Reale, Granada; Arasse, D, Le Détail, (Paris: Flammarion, 1996) pp 97–107; Hamburger, Visual, pp 208, 306–7, 374; Macdonald, The Broken Body, p 20. Le retable de Boulbon, ca. 1460, Louvre, Paris. Hamburger, Visual, p 142. Atelier de Pierre Vilatte, Les Instruments de la Passion, in Heures du Maréchal de Boucicaut, 1477–1480, Musée Jacquemart-André, Paris. Finaldi, The Image of Christ, p 167. Maitre de Saint Germain des Prés, La Pietà, Louvre, Paris. Matthias Grunewald, Isenheim Altarpiece, Colmar. Premyslovsky Crucifix, Warsaw; Crucifixion, ca. 1304, Sankt Maria im Kapitol, Cologne. Finaldi, The Image of Christ, p 177. Henderson, G, Gothic, (London: Penguin, 1972), p 163. Ibid.; Hamburger, Nuns as Artists, p 133. Critchley, Ethics, Politics, Subjectivity, p 205. After Hans Holbein the Younger, ca. 1537, Walker Art Gallery, Liverpool. The following is dependent on the illuminating work found in Koerner, J, The Reformation of the Image, (London: Reaktion Books, 2004); Koerner, ‘Icon as Iconoclash’ in Iconoclash, Latour, B and Weibel, P (eds), (Cambridge, MA: MIT Press, 2002), pp 164–213; and Koerner, The Moment of Self-Portraiture in German Renaissance Art, (Chicago, IL: University of Chicago Press, 1993). Koerner, Reformation, p 236. Longinus is said to have pierced Christ’s side with a lance and at that moment was converted. What Koerner says of Cranach’s praedella of the Wittenburg altarpiece applies here as well: ‘the painting is the materialised content of a speech act . . . Thus pointing and seeing, saying and hearing, resolve in one and the same thing. Words refer to images, which refer to words.’ Ibid., p 209. ‘At best, one feels monitored for one’s attention to a difficult lesson. Christ dies in the dead air of a school room, despite the flapping loin cloth.’ Ibid., p 210. Koerner, Reformation, p 235. Elkins, J, Pictures of the Body, (Stanford, CA: Stanford University Press, 1999) p 276. Elkins, J, Pictures and Tears, (New York: Routledge, 2001), pp 175, 180. Kristeva, J, ‘Giotto’s Joy,’ in Desire in Language, (New York: Columbia University Press, 1970) p 221. ‘It is through colour that Western painting began to escape the constraints of narrative and perspective norm . . . as well as representation itself. . . .’ Ibid. Ibid., p 231. Levinas, ‘Jean Atlan’, p 621.

Chapter 3

Hands that give and hands that take: the politics of the Other in Levinas Tina Chanter

1. Hands that give and hands that take The vision that sees – the guiding metaphor for philosophical thought – is also, according to Levinas, the hand that grasps.1 The reduction of every idea to me, or the representation of every thought in a now that is present, is also a reference to the hand that grasps, seizes.2 As Levinas says in Of God who Comes to Mind, ‘Responsibility does not let me constitute myself into an I think . . . It goes to the point of substitution for the other, up to the condition – or the non-condition – of a hostage. This is a responsibility that does not leave me time: it leaves me without a present for recollection or a return into the self ’ [my emphasis].3 The idea that responsibility ‘does not leave me time’ is reiterated in a context that reverses the grasp that the phenomenological intentionality, with its aim and vision, exerts. As he puts it in God, Death and Time: ‘[H]ere, a sort of violence is undergone: a trauma at the heart of my-self [moi-même], a claiming of this Same by the Other, a backwards movement of intentionality. The extreme tension of the command pressed upon me by another; a command prior to any opening on my part; a traumatic hold [emprise traumatique] of the Other upon the Same. This is a hold [emprise] that I discover in the extreme urgency that calls for my help, to the point where I always come too late, for there is no time to wait for me’ [my emphasis].4 In sum, instead of consciousness opening onto a world, and converting what it finds into its own ideas, rendering it equivalent to a knowing I, the subject is held by the other in a way that renders it unequal to the call it hears. There is no equality, no rediscovery of the self as adequately representing the call of the other. There is no time for the I to assemble or reassemble itself as a consciousness that is master of the situation. Consciousness does not take hold, or seize, or grasp, or take in hand, or represent the other, but rather it suffers from bad conscience. As Levinas puts it in From One to the Other:

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Transcendence and Time, there is here a ‘suspension’ of consciousness, sovereignty, and of the subject as master of itself. Consciousness, says Levinas in Entre Nous, is ‘interrupted in the presence of the face of the other’ [my emphasis].5 An example of such an interruption, in the figure of Antigone, is provided by Levinas’s discussion of Hegel’s Phenomenology of Spirit. A suspension of war and politics, a fear of injustice more than death, inspiration breaking with intellectualism, goodness pulling the self away from its return to self: it is Antigone who embodies this ethics. Levinas points to the ‘exceptional relationship of the living with the dead’ that consists in the ‘act of burial’ that Antigone accomplishes (GDT 86; DMT 101). ‘The burial rite is a deliberate relationship of the living with death, through their relationship with the deceased. Here, death is thought and not simply described. It is a necessary moment in the conceptual progress of thought itself ’ (ibid.). Tracing the relationship in Hegel between the family, the feminine, and burial on the one hand, and the state, the masculine, and communal life on the other hand, Levinas says: ‘The State is legislation; it is the action of several in view of a common goal. To the State is opposed the divine law, the family bonded in blood and the relation of the difference of the sexes. The divine law is different from the State because it proceeds from that which is common, whereas the State, by way of the universal law, tends toward what is common . . . The State proceeds from Reason conscious of itself and raising itself to the universal. The family, on the other hand, is something natural; it is the substratum of life from which human law detaches itself. But family is also the immediate nature of Spirit, and thus it is not a pure nature; it has an ethical principle. It becomes moral in relation to the Penates, to the protective spirits of the household.’ (GDT 82; DMT 96–7) The question that guides Levinas’s enquiry into the exceptional role that death plays for Hegel, that is the sense in which it escapes being merely a moment of the play of being, is this: ‘What then can the ethical spirit of the family signify? The family’s morality is other than that of the State. This morality is in the State and has many of the State’s virtues: it raises children, prepares citizens for the State, and in this sense it is for the disappearance of the family. But there exists an ethics proper to the family that, on the basis of its terrestrial morality, relates to the subterranean world and consists in burying the dead.’ (GDT 83; DMT 97) This ethics, although Levinas does not name her, is the ethics that Antigone

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enacts. Levinas does, however, inscribe this ethics under the rubric of the maternal: ‘In death, there is the idea of a return to a maternal element, to a level situated beneath the phenomenological sphere.’ (GDT 86; DMT 101) The key significance for Levinas is the sense in which the act of burial interrupts the work of nature, thereby taking on the death of the other. Thus, the burial of a family member signifies in a way that cuts across the subordination of the family to the state; it interrupts the dominant order, its meaning goes beyond, or exceeds, the hierarchy that places the family at the service of the state. Even though Polynices died a traitor to the state, he still deserves a proper burial according to the law by which Antigone abides. The meaning of the act of burial thus signifies in a way that cannot be recuperated according to the logic of the state as dominant. The ethics of the family refuses to be subordinated to that of the state in the figure of Antigone. One can see how the work of memory and witnessing in the context of survivors of the Holocaust could be read in the light of Levinas’s comments on Hegel. Levinas’s interest in Hegel’s interpretation of Antigone’s ethical sensibility focuses on the sense in which for Hegel, ‘death is not simply a moment playing its role in the thinking of being’ (GDT 80; DMT 94). Ultimately, Levinas thinks that the ‘phenomenal model’ wins out in Hegel, that there is a ‘return to the ground of being’ (GDT 87; DMT 102). But Antigone’s ethics effects a suspension of that ground. It is not surprising that Levinas would appeal to Antigone, whose affinity with death and whose association with the nocturnal is pronounced. Levinas frequently describes the feminine in terms of slipping away from the light, as modesty and hiding. Even if we overlook the traditional connotations of indeterminacy this has, and stress instead its contrast to the grasping movement of light and knowledge, one must still ask, how responsible is responsibility in this account? What are the limitations of Levinas’s infinite responsibility? I suggest that the regime of the feminine supports and facilitates the saying of that text. Without the feminine in the background, there would be no possibility of the hands giving, instead of taking. Antigone performs to perfection the unmarked role that the feminine plays in Levinas’s philosophy: she mediates between humans and the divine. She teaches Creon the unforgettable lesson that the human and the divine cannot be separated from one another, as if one was not implicated in the other. It might not be her intention to teach this lesson, and in this sense she does not present herself as a teacher. Rather, she uses her hands to give her brother a proper burial, putting her body to work in her offering of dust and libations, giving what she alone can give, all that she can give, the only thing that she is allowed to give. As a woman, excluded from politics, Antigone’s function is restricted

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to the familial; in her case, given the incestuous line that she will not allow herself to continue, her function is reduced to performing the rites of the dead. Giving her life, she gives without asking anything in return. Except, perhaps, remembrance. For we are no longer living in ancient Greece, and women are no longer politically circumscribed in the way that Antigone was: how then do we read an ethical philosophy that continues to require women to maintain the marginality they endured in ancient Greece? Is the feminine, for all its potential in feminising Heidegger’s ontology, restricted by its own adherence to a conception of femininity that is still too ancient Greek? Without a body, one cannot give; without bread to give, one cannot give. Levinas recognises this when he says, ‘The here I am signifies a being bound to the giving with hands full, a being bound to corporeity; the body is the very condition of giving, with all that giving costs’ (GDT 188; DMT 216). One might say that for phenomenology, the hand remains one that takes (see EN 160; ENE 166), while for Levinas one has ‘hands for giving.’6 In what sense does the feminine allow hands that take to become hands that give, and how does the body, corporeity, constitute the ‘condition’ (GDT 188; DMT 216) of giving? To what extent do the marginal figures of the feminine that inhabit – or rather haunt, for they are not at home – Levinas’s texts, transform the hand the takes into the hand that gives? There are a number of reasons to be suspicious of Levinas’s invocation of the feminine, not the least of which is the apparent ease with which Levinas casts the feminine in a very traditional way, by associating it with domesticity, passivity, and invisibility. But if one is to maintain a critical stance toward Levinas for his reiteration of such traditional associations in texts such as Time and the Other (1947), Totality and Infinity (1961), and, arguably, Otherwise than Being (1974), how is one to judge the many texts in which Levinas either entirely forgoes any mention of the feminine, or those in which he barely mentions it? Do these texts merely lend support to those critics who remain unconvinced that the theme of the feminine has an important function in Levinas’s philosophy? Or is there a sense in which the feminine facilitates Levinas’s ethical claims even – perhaps especially – in those texts which appear to be oblivious to the feminine, or in a text such as God, Death and Time, in which the feminine, figured as Antigone, occurs without being named? My argument is that Levinas’s philosophy, even when it overtly ignores, excludes, or seems indifferent to the feminine, relies on, appeals to, or is dependent upon the feminine. The feminine is the unthematised, silent, unspoken face of Levinas’s ethics. It is the saying of Levinas’s said. In order to function, Levinas’s philosophy requires the feminine – but it requires that it remain inarticulate.

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2. Abjection The language that I want to use to characterise Levinas’s treatment of the feminine is the language of abjection. There is a sense in which his thought digests the feminine, absorbing its nutritional value, as it were, before spitting it out, expelling it, discarding it, relegating it as waste, as extrinsic to the main effort of his thinking, but not before absorbing, usurping, and appropriating its usefulness. This movement of assimilation, this eating of the other – to borrow a formulation of bell hooks – mimics the very gesture Levinas criticises so relentlessly in characterizing western philosophy as a philosophy of sameness. It is as if the feminine, which occupies a position of alterity, must be consumed so that it can be set aside, cast out, abjected. This operation of consumption, in which alterity is swallowed up but not negated, in which the feminine is defused so that it can be expelled from thought, such that it begins as the condition of thought, and ends as the excluded other that thought cannot reach, transforms it into something masterable, tolerable, identifiable, unthreatening. Transmuted into a possession, made into something that can be called one’s own, transformed into what is henceforth designated, by a masculine subject – unmarked as such, a home, a dwelling, habitation, the feminine itself is lost. It has no place in Levinas’s ethics. Through a conversion of transcendence into immanence, Levinas’s thought thereby dispenses with that which made it possible, in the same move with which it dispenses with conditionality as such. A strange convergence, and one that is not entirely accidental. What does it mean that the feminine functions as a pre-condition, whose pre-conditionality cannot be sustained within the ethics it makes possible? The very operation of thought, according to Levinas, is consumptive. That is, thought, in the form of ideas, consumes the other, and makes it into the same. This way of characterising the mechanism by which philosophy proceeds, by way of the negation of alterity, which thereby comes to be seen as a false alterity, is not unlike the mechanism of narcissism. Orality is characteristic of primary narcissism for Freud, and that eating, the consumption of the other, is the model not only of enjoyment but also of representation for Levinas. In both cases, a mythical dyad subtends an illusion. In the psychoanalytic narrative, what is rendered illusory is the integrity and autonomy of the infant, which discovers itself, after the fact, as having been dependent upon an other, the mother, due to what Lacan calls the specific immaturity of the infans. For Levinas, what is rendered illusory is the innocence with which the naïve individual pursues its happiness, in apparent oblivion of the fact that there are people in the world who are hungry, who have no bread to eat. In both cases maturity or goodness are contingent upon a repudiation of an initial illusion. For Freud, the subject strives for maturity by realising, at least to a relative degree, the autonomy it mistakenly assumed, and in doing so, abjects the mother. This narrative,

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while problematic, at least has the virtue of honesty, in its less delusional moments. With Levinas, things are not so clear. An operative condition of his ethics is the feminine welcome, but this condition is not thought as such. Given the mode in which Levinas characterises thought, to think the feminine as the condition of ethics would be to negate its alterity. But not to think it involves him in an operation that occurs by producing a remainder that remains unthought, such that he produces an ethics by excluding the very thing that has made it possible, the very thing that it would purport to contain. By appealing to an ethical stance vis-à-vis the other that invokes extremity, infinity, obsession, and that is held to be absolute, Levinas’s ethics depends upon a strategic exclusion, an abjection. While Levinas appears to engage an infinitely generous ethics, his stance in fact rests upon the abjection of certain others, women and Palestinians among them. By maintaining a strict separation between ethics and politics, he fails to acknowledge the sense in which his ethics is always already political – that is, political in a way that relegates femininity to the home, to the dwelling, to sexuality, to the carnal, to the maternal, to tropes that have historically contained and confined women to a marginal history. His stance is political in a way that he does not own, and in the sense that it refuses to grant the status of radical alterity to Palestinians – because of the colonial relationship (as Edward Said has argued) that pertains between the Israelis and the Palestinians. These others, women and Palestinians, do not qualify as others, apparently. They are not worthy of my self-abasement. They are always already abjected by an ethics that does not grant them the status of others whose destitution has an absolute claim. Their need is not recognised as such, it is not registered as need, these others are others who are not absolutely other, to whom the masculine I of Levinas ethics is not infinitely obligated. And if we ask why, the answer seems evident: they have already been eaten up by a philosophy that has used them up and spat them out: they are the abjects of Levinas’s ethics. The matter is more complex. If the feminine is a condition of the dwelling, if I must give the bread to the other, take the bread from my mouth, if the other’s mortality elicits from me an ethical act, the question that remains unaddressed by Levinas is: where did the bread I take from my mouth to give to the Other (not the woman, not the Palestinian, but the one who qualifies as Other) come from? Who baked it, who put it on the table, who made the meal, who provided the comforts of a dwelling, in whose land do I dwell? To say that the question remains unaddressed is not quite accurate. Rather it is the mode of address that remains problematic. The mode of address is one in which the Levinasian I subsumes, consumes, and abjects women and Palestinians without noticing, without recognising their faces as faces that demand an ethical response, and without allowing a space in which any such recognition could take place to exist in thought. These other others subsist in a no-place, outside of Levinas’s thought, abjects of his [ethics as first-]

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philosophy. The I becomes an I who has eaten up the other (l’autre), and discarded it as not Other (autrui). To the extent that Levinas addresses this question, he does so under the heading of the feminine as welcoming par excellence. The feminine that does not, he assures us, require the presence of an empirical woman. This feminine being is not the radically other who obligates me, interrupting the complacency of my enjoyable existence. What then is the status of its alterity? The feminine is other without being radically other, other without making any demands on the I that is figured as masculine. The feminine is other, but is discreetly other, invisibly other, and its discretion and invisibility makes it less than challenging, figures it as undemanding, usurps its generosity without describing that generosity as ethical. And yet, at the same time – and it is in this sense that the feminine remains unthought by Levinas – without the feminine there would be no home, no dwelling, no habitation, no enjoyment, and without the Palestinian there would be no land in which to dwell or to enjoy. It is precisely the presence of these feminised and racialised others – not marked as [O]thers – and, therefore, precisely their absence that makes the ethics of the face to face possible. In this precise sense, the feminine and the racialised other provide an unacknowledged conditionality, and at the same time a model of forced hospitality, whose force is not marked, but converted, rather, into the status of a gift. These other others thereby operate as proto-ethical, practising an ethics that does not count as a Levinasian ethic. The feminine welcome pre-empts the ethical relation proper. To put it at its most polemical, the feminine makes a home in the land of the Palestinian other and is figured as discreetly welcoming the masculine Israeli other, a figuring that covers over the violence at the heart of this dwelling in a land of others. The home operates as a front, and a frontier, providing for all his needs, without the feminine registering as needy, and the feminine thereby comes to emasculate the racialised, Palestinian other. The said of Levinas’s own texts have indeed become the truth and law, as Levinasian studies settle into an orthodoxy that allows them to continue to ignore the feminine, and the crucial role it plays. This orthodoxy is notably upset by Derrida, one of the few prominent male critics to have paid close attention to the work that the feminine does in Levinas’s texts, but he has not been followed by many of his admirers in this respect. Similarly, in so far as feminist philosophy has tended indeed to fix on the said of gender, it has ignored, excluded, abjected others by racialising and classing them in ways that it does not acknowledge. In this, it fares no better than Levinas in his abjection of Palestinians and women. We need, in response, to think about the ways in which bodies have been made into signs that indicate race or gender. It is worth recalling that Levinas returns to the Cartesian split between mind and body, that phenomenology saw itself as overcoming, when he affirms a kind of separation between corporeality and thought. This does not negate the fact that bodies signify at the level of representation, that

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they are inscribed by meaning and history. Rather, enjoyment, sensibility, habitation, dwelling, and so on are lived at a level that is not immediately reducible to or circumscribed by thought. What is needed, then, is not a wilful avoidance of bodies, but a thorough and nuanced account of them, and their relationship to symbolic aspects of identity. I mean here to avoid either the social constructionist view, in which the materiality of bodies is underplayed, and at the same time to avoid the implication that there is some biological ground in which bodies can be situated in an uncomplicated way, as if that ground were uncontaminated by theory, society, culture, politics, or history. I mean, in other words, to follow a logic similar to that of Fanon, where he performs a racialised reading of Merleau-Ponty’s corporeal schema, and in doing so, recasts it first in terms of a racio-historical schema, and then in terms of a racial-epidermal schema. He shows how black bodies are seen through a white imaginary mythos invested in pernicious myths about cannibalism, primitivism and barbarism, a historically constructed mythology that operates to obstruct the freedom and agency that whites can assume in their bodily relation to the world. He shows how this racial historical schema inhibits, paralyses, freezes, cripples, fragments, distorts, bursts apart the corporeal schema. When a child points to him and says ‘Look Mama, a negro . . . I’m frightened!’ Fanon can no longer move about the world freely. He finds that his black skin has become a sign of the mythology that has come between himself and the child, that the child has reduced him to the colour of his skin, and in doing so has deprived him of the freedom to move around the world uninhibited, of the freedom to think, of the freedom to create, transform, change history. He has become what the child makes of him. The alienation and objectification and humiliation, and dehumanisation – the abjection – he experiences is a disabling, a disoriention, a disintegration. As Jeremy Weate argues, this last stage of the slippage from the corporeal schema, to the racial historical schema, to the racial epidermal schema can be read as a ‘genealogy of racial essentialism’. Fanon is demonstrating how the black skin becomes a sign of evil, of violence, of a rapist, or cannibalism, and how that sign gets sedimented into a permanent said. His phenomenology of the lived experience of a racialised other is intended to put into question the universalist assumptions of Heidegger, Merleau-Ponty and Sartre. By insisting on the asymmetry of experience, he shows up the false neutrality of the apparently universal phenomenology as based on the invisible priority of whiteness. In doing so, he unfortunately breathes new life into pernicious sexist myths along the lines that women really want to be raped. I won’t rehearse this in detail, as the work has already been done elsewhere. I want merely to point to the dynamic, which I do not think is accidental. In pointing out the racism of phenomenology, Fanon re-instantiates its sexism. In uncovering the abjection of the raced other, he performs an abjection of women reducing women to the property of men, construing women as the passive repositories

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of male desire, and projecting onto women violent fantasies that perhaps enact a displacement of his own suffering. In a similar way, Levinas, as he uncovers the abjection of certain others in Heidegger’s philosophy, and in western philosophy in general, performs an abjection of other others. Is this accidental? I think not. I am interested in the way in which the very attempts to make an inclusive gesture in order to include certain others who have typically or traditionally been subject to exclusion so often end up reconstituting, or reinventing, the abjection of other others. It is as if liberatory gestures are constituted in part by a pervasive blindness. Is this due to their fervour, or is it due to some more sinister tendency to reinvent at another level precisely the gesture that is being remedied at another level? Is there something necessary about the dynamic of abjection that prevents its dissipation, that necessitates that it simply regroups, constituting new others? Must we exclude others in order to be who we are? In setting ourselves up as individuals and communities must we expel others, produce others? Must we make others into outsiders in order to forge and create identities for ourselves, to produce security and sameness for ourselves? Perhaps, but these groups do not have to be constituted along such obviously predictable lines, lines that operate in systematically and institutionally discriminating ways. I have argued that to thematise the role of the feminine in Levinas’s philosophy is to produce a philosophy of mediation and to undercut the radicality of God’s alterity. Unless he wanted to give up his claims for a radical otherness, Levinas’s hands appear to have been tied. In order for the hand that grasps to become the hand that gives, the passage through the feminine cannot be said, except as a betrayal.

Notes 1

Some parts of this paper are a reworked version of a paper published under the heading ‘Hands that Give and Hands that Take: The Politics of the Feminine’. 2 In ‘Philosophy and the Idea of Infinity’ (1957) Levinas says that freedom is nothing but ‘the thinking being’s refusal to be alienated . . . the preserving of his nature, his identity, the feat of remaining the same despite the unknown lands into which thought seems to lead’, Collected Philosophical Papers: Emmanuel Levinas, trans. Alphonso Lingis, (Dordrecht: Martinus Nijhoff, 1987), pp 47–59 see esp. p 48. Any ‘foreign’ term becomes an ‘obstacle’ for ‘philosophical life’ and ‘has to be surmounted and integrated into this life. But truth is just this victory and this integration’ p 49. Thus philosophy, in so far as it consists in a movement that tirelessly identifies the other as the same, becomes a possession, a power of the self over the world. ‘The surrender of exterior things to human freedom’ amounts not only to ‘their comprehension, but also their being taken in hand, their domestication, their possession. Only in possession does the I complete the identification of the diverse. To possess is, to be sure, to maintain the reality of this other one possessed, but to do so while suspending its independence’ p 50. The reduction of the other to the same, and the priority of freedom and autonomy over the other amounts to the ‘conquest of being by man over the course of history’ p 48.

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Levinas, ‘God and Philosophy’, in Of God Who Comes to Mind, trans. Bettina Bergo, (Stanford: Stanford University Press, 1998), pp 55–78, see esp. p 71; Levinas, ‘Dieu et la Philosophie’, in De Dieu qui vient à l’idée, (Paris: J. Vrin, 1982), pp 93–127, see esp. p 117. 4 Levinas, God, Death, and Time, trans. Bettina Bergo, (Stanford: Stanford University Press, 2000), p 187; Levinas, Dieu, la mort et le temps, (Paris: Bernard Grasset, 1993), p 215 – hereafter respectively cited in the text as GDT; DMT. 5 Levinas, Entre Nous: On Thinking-of-the-Other, trans. Michael B. Smith and Barbara Harshav, (New York: Columbia University Press, 1998), see esp. p 147; Levinas, Entre nous: essais sur le penser-à-l’autre, (Paris: Grasset et Fasquelle, 1991), p 158 – hereafter respectively cited as EN/ENE in the text. 6 Levinas, God, Death, and Time, p 188; Dieu, la mort et le temps, p 217.

Part II

Levinas and political theory: a dangerous liaison?

Chapter 4

Levinas’s silence Howard Caygill

‘It is impossible to remain silent. There is an obligation to speak. And if politics, arising everywhere, falsifies the original intentions of the discourse, there is an obligation to cry out in protest.’ (Levinas, Poetry and the Impossible, 1969) ‘I will say to you that there are many things about which I cannot speak because I am not in Israel. I forbid myself to speak about Israel not being in Israel, not living its noble adventure and not running this great daily risk.’ (Levinas, Interview with Poirié, 1987)

1. Levinas’s silence The focus of recent interpretation of Levinas’s work has shifted from ethics and its relationship to phenomenology and ontology to the problem of his political philosophy. The change is in many respects motivated by impatience with the degree of political complacency, even sentimentality, which attended the early reception of the ethics of alterity. Indeed, it has become a cathartic necessity to point to some of the more questionable political moments in Levinas’s life and thought in order to return to his ethical thought with renewed urgency. Yet once it has been acknowledged that there is a problematic and difficult politics in Levinas’s thought, the question of its significance or centrality remains. It might be argued that we know too little about Levinas’s empirical politics to arrive at a responsible assessment of its philosophical significance – the archival work on his judgement of the actions of the State of Israel, for example, is still to be done. It might also be argued that even if complete knowledge of his political judgements was ever attained, this would still be irrelevant for appreciating the significance of his ethical diversion of phenomenology. Both positions, however, overlook the importance of Levinas’s own philosophical reflection on the question of politics and philosophy, one that issued in a recognition of a ‘difficult saying’ and a ‘difficult silence’ beyond the ethical contrast between ‘the saying and the said’ explored in Otherwise than Being or Beyond Essence.

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The gravity of the question of the relationship between politics and philosophy is particularly evident in the case of Levinas’s judgement of the actions of the State of Israel. The question of the philosophical significance of his judgement in this case can be explored in depth through his published writings, but with important reservations. For there is an immediate hermeneutical problem to be faced when reading these texts that is expressed in Levinas’s response in a 1987 interview with Francois Poirié to a question concerning the State of Israel. After a preliminary observation ‘You are touching there on too many strong feelings’, he then evokes a right to silence on this question: ‘I will say to you that there are many things about which I cannot speak because I am not in Israel. I forbid myself to speak about Israel, not being in Israel, not living its noble adventure and not running this great daily risk.’1 This response is problematic for many reasons. First it seems to imply a scandalous abdication of political and ethical responsibility not to speak about a state and its actions on the grounds that one does not live there. Secondly, it also seems to renege on Levinas’s own concept of ‘Israel’ that encompasses both the State of Israel and the Diaspora. Thirdly, and perhaps most problematically, the claim to silence seems to turn its back upon the prophetic, universal vocation of human rights central to Levinas’s ethics and politics, one that he traced to the Jewish sources of Western culture and according to which all rulers may be called ethically to account for their actions. We know from the case of Heidegger that philosophical silences are both difficult to respect and to understand. And indeed, Levinas did speak often about the State of Israel, but in often tormented and frankly strange ways. Indeed, his evasions and use of indirect speech may be traced back to an ambivalence most clearly evident in the 1959 essay ‘How is Judaism Possible?’ republished in the collection Difficult Freedom: Essays on Judaism. The essay opens by invoking the limits of Jewish consciousness in Republican France, limits that Levinas traces to a ‘sense of inequality’ between Christianity and Judaism. Even a professedly secular state such as France is permeated by a Christian atmosphere that has little room for Judaism, confining it to private worship and works of charity. Before these limits set by the Emancipation, Levinas recognised three ‘intermingled events’ that were changing the status of Judaism: ‘the constitution of the State of Israel and the presence of this state to a consciousness; the appearance and development of youth movements; and the renewal of Jewish studies within these movements.’2 They are intermingled insofar as ‘The house of prayer coming out into the world is their common significance. A search for space!’3 This observation upon the emergence of the house of prayer into the world is immediately followed by one of Levinas’s most considered reflections upon the State of Israel: ‘The State of Israel, whatever the ephemeral political philosophy of its greatest workers, is not for us a state like any other. It has a density and

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depth that greatly surpasses its scope and its political possibilities; it is like a protest against the world. And it reflects our thoughts in the vast culture of the visible, which until then had been subjective thoughts.’4 This passage raises a number of questions. The distinction between the State of Israel and the ‘ephemeral political philosophy of its greatest workers’ puts into question the identity of the political philosophy in question. Is this the socialist ideology of the founders of the State such as Ben Gurion or is it Zionism? In both cases a distance is established by Levinas between the significance of this State and the ideology of its founders. Then, if it is not a ‘state like any other’, in what consists its difference, how is it other than ‘other’ states? Levinas answers in terms of a ‘density and depth’, one which does not consist in the rootedness in being of the state, as it is described in Totality and Infinity, but in being a ‘protest against the world’. It is a protest that ‘reflects [répercute] our thoughts’ in the ‘vast culture of the visible’ – a subjective thought issuing into reality, or the ‘house of prayer’ entering the world. The use of répercuter (reflection, deflection, to have a deferred impact) to describe the passage of subjective thought into the visible develops the theme of reflection mobilised immediately before this passage in the text to describe Judaism. Here Levinas insists upon the incommensurability of Judaism – it cannot be defined in the terms of ‘confession’, ‘nation’, ‘state’ or ‘race’ that were historically applied to it. Levinas describes it as ‘the last cold spark of an ancient flame which, for 150 years, has not been fed. All that burns is a strange reflection, lighting nothing and unable to transmit itself: a fire that devours nothing and burns without consuming anything.’5 The emancipation has starved the ‘ancient flame’ of witness leaving a strange play of reflections – ‘dense and deep’ – lighting nothing, devouring nothing and unable to transmit itself. The State of Israel converts an emancipated Judaism, understood as a light reflected upon itself, into a Judaism that has an impact on the world, but one still guided by the ancient flame. Already there is something uncanny about the difference that constitutes the State of Israel, a strangeness that is then compounded in the remainder of the essay. Although nothing more is said directly about the State of Israel, with Levinas shifting focus to Jewish educational institutions, it returns in the strange Aggadah with which the essay ends. Citing a verse from the Second Psalm – ‘Serve the Lord with fear, with trembling kiss his feet’ – Levinas meditates upon the significance of trembling. Trembling occurs ‘when the foundations of the world are rocked, when the identity of things, ideas and beings is abruptly alienated. . .’.6 Trembling occurs when ‘A is no longer A, when B is no longer B’ and, in particular, when ‘Mr B is no longer Mr B’; it occurs when ‘the newspaper you buy buys you, when the word you hear signifies neither what it signifies nor what it refutes.’7 It accompanies the antiHegelian realisation that ‘the lie that exposes itself lies as it exposes itself, without the negation of the negation becoming an affirmation’ and is the

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salient characteristic of modernity: ‘trembling is the whole modern world on both sides of the Iron Curtain, when we see it without curtains or veils.’8 It is also finally revealed as the presence of the ‘other in the self ’ and as the condition of Levinas’s own silence: with the lie deceptively exposing itself as a lie, there arrives the possibility that it is difficult to judge the world – that it is difficult to speak: ‘Trembling is also when we still hesitate to judge the world because – and this is the supreme trembling – through my mouth there perhaps speaks another, an unknown person who has seduced me or bought me, someone I cannot get to coincide with myself.’9

2. Levinas’s ambivalence The possibility that an other may speak through my voice is not necessarily an argument for silence, as it may have been for Levinas when maintaining silence on the actions of the State of Israel, but certainly points to the need for careful, responsible speech. This, however, is not the direction in which Levinas takes his argument. Following the evocation of the supreme trembling, Levinas cites Judaism as promising ‘a recovery, the joy of selfpossession within universal trembling, a glimpse of eternity in the midst of corruption.’10 Strangely enough, Levinas seems here to attribute to Judaism some of the ontological features – self-possession, eternity – that most of his philosophical work was dedicated to undoing. But if, in the opening words of Totality and Infinity, we can be duped by morality perhaps we can also be duped by these aspects of Judaism, and indeed Levinas asks ‘Should we believe it?’ Once again, and perhaps surprisingly, we should, but on the grounds that Judaism is a protest against the world: ‘Up until now it has been the victim of history; it has not taken on its cruelty.’ This protest that is Judaism, and the source of the unique significance of the State of Israel for Levinas, is rooted in the prophetic word: Judaism ‘once knew how to speak a word that stands apart from these swarming insinuations, a word that breaks and unties, a prophetic word’. This word promises self-possession and moral certainty, but it itself is immediately put into question. In so far as Israel once knew how to speak this word, with the implication that perhaps it does not know any longer how to do so, should we credit it now? Levinas answers that nothing is certain, but a chance offers itself. The chance that modern Israel constitutes a protest against the world – a protest that constitutes the difference of the State of Israel from other states – is all that Levinas permits himself. His closing exhortations – ‘Take the chance! Credit it! The signature is not false!’ are desperately ambivalent. Did he not himself just give the anti-Hegelian lesson that a negation of a negation does not constitute an affirmation – that a not-false signature is not necessarily genuine, that trembling continues? The ambivalence that surfaces in ‘How is Judaism Possible?’ sways between the poles of trembling and prophetic certainty, and even the attempt to assert that the latter trembles at key

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moments. What is then the proper attitude to adopt towards the chance of prophetic speech? One that neither trembles nor blindly affirms, but which approaches the chance of prophetic speech with responsibility. Yet in what would such a responsible, difficult speech consist when addressed to the State of Israel? Levinas’s disingenuous claim to silence on this issue seems closer to trembling than responsibility – suggesting that the reluctance to speak arises from a suspicion that when he says Israel is not a State like any other, he knows that it is a State like all the others. The same ambivalence is rehearsed in the essay ‘From the Rise of Nihilism to the Carnal Jew’ which begins with the Nazi murders and the ‘extraordinary fulfilment of the Zionist dream of a State in which to live peacefully is to live dangerously’.11 At one point Levinas gives voice to the enemies of the State of Israel, and performs the conversion of their voice into our voice – precisely the terms of the predicament of trembling described in ‘How is Judaism Possible?’: ‘Our enemies began. They cast doubt on the facts and figures. This continued among ourselves.’ The enemy is internalised – first of all he is our enemy, the first person plural, raising grave issues of identification – and then the enemy voice is adopted, even to the extent that ‘We have reached the stage where Jews are the authors of their own extermination.’12 The ‘voice of the enemy/self ’ is not always so unequivocal, more often it produces doubt, fear and trembling, especially with respect to Israel. In the words of Levinas voicing the words of the enemy, ‘Israel’s independence was called imperialism, the oppression of native peoples, racism. . . The eschatological dream was substituted by the seduction of tourism.’13 The ‘enemy,’ in other words, denies that the State of Israel is any different from any other state – it is a denial, couched in pseudo-progressive language that leaves youth gnawed by doubt, trembling, leading to the outcome that ‘the progressivist language of traitors deceives the traitors themselves.’14 The introduction of the term traitor in place of that of the enemy betrays a hardening in Levinas’s position – traitors are those who adopt the enemy’s voice – Levinas comes close to claiming, indirectly, in the following paragraph that progressive critics of Israel have been duped by anti-semitism. After the assessment of treacherous speech, Levinas moves from trembling to resolute assertion: against the voice of our enemy he claims, ‘The State of Israel, in this sense, constitutes the greatest event in modern Judaism.’15 The ‘sense’ to which he is referring is the argument – drawn paradoxically from the early Heidegger – that authenticity is assured by sacrifice or being-fordeath. In Levinas’s words, the State of Israel is the ‘greatest event in modern Judaism’ because ‘once again we have a Jewish value that, to those most assimilated into it, appears worthy of an ultimate sacrifice.’ The willingness to sacrifice one’s life for the existence of the State of Israel – a constant aspect of Levinas’s political judgement – is taken to justify its difference from other states. Indeed it is probably that which more than anything else identifies it with them – every state in history, even the most tyrannical,

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has found citizens and supporters willing to sacrifice their lives for its continued existence. The difficulty of speaking responsibly about the actions of the State of Israel reaches an extreme level of complexity and ambivalence in the Foreword to Beyond the Verse. Here Levinas approaches the issue of the raison d’être of Zionism by self-citation from an essay of 1969 ‘Poetry and the Impossible’ on Paul Claudel, whose Christian view of the Shoah as a sacrificial passion he had largely adopted. At the outset of examining the claim that the existence of the State of Israel is justified by the Holocaust, Levinas concedes ‘Of course, it is the West, not the Arab world, which bears the responsibility for Auschwitz’ but then qualifies this political judgement with a universal ethical judgement: ‘[U]nless one accepts that the responsibility of men cannot be divided, and that all men are responsible for all others.’16 He then notes: ‘In Difficult Freedom I published the following lines, written more than ten years ago’ and then proceeds to a long citation: ‘What is the suppression of national distinctions if not an indivisible humanity, that is to say, responsible in its entirety for the crimes and misfortunes of the few? . . . Are all human relations reducible to the calculations of damages and interest, all problems to the settling of the scores? Can anyone among mankind wash his hands of all this flesh gone up in smoke? . . . The gesture of recognition which would come to Israel from the Arab peoples would no doubt be replied to by a brotherly zeal such that the problem of the refugees will lose its unknown elements.’17 He does not, however, alert his readers that the cited passage from 1969 partly comprised him writing in the voice of Claudel. The cited paraphrase of Claudel not only calls for a universal responsibility for Auschwitz but also for a ‘gesture of recognition’ from the Arab peoples that, Levinas adds returning to his own voice, would be met with an élan fraternel that would contribute to a solution of the problem of Palestinian refugees. This already indirect speech is further complicated by a number of omissions, some indicated others not, from the 1969 original. The first omission, signalled by an ellipsis, comprises two sentences in which Claudel/Levinas berate the Arab peoples for their lack of a universal conscience for the crimes committed in Europe: ‘The Arab peoples would not have to answer for German atrocities, or cede their lands to the victims of Hitlerism. What deafness to the call of conscience!’18 The Arab peoples in 1969 are shown as being incapable of conscience by not ceding their lands to the victims of the Shoah. This use of ethical discourse to support a political position seems an example of precisely that

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political falsification of ‘the original intention of the discourse’ that Levinas himself berates at the end of ‘Poetry and the Impossible’ claiming the obligation to speak. It is further compounded by the invisible deletion of a passage following the sentence on the ‘settling of the scores’. This passage opens with a slippery double negative: ‘The right to a “birthplace” invoked by Arab refugees can certainly not be treated unjustly’; which does not issue in a Hegelian negation of the negation that the right must be treated justly, but in an ironic aside on the ‘nostalgic value of the church tower (or minaret)’. This is followed by a further, invisibly deleted, sentence that asks: ‘But can the call of the land silence the cries of Auschwitz which will echo until the end of time?’19 Here, the Levinas/Claudel voice makes a political weighing of suffering, a calculation of relative damage, which colludes in a tasteless and instrumental use of the victims of the Shoah in support of a frankly political justification of the expropriation of the Palestinian refugees. The sentence beginning ‘can any human wash his hands’ is followed by a second explicit deletion of two sentences, in one of which Levinas separates his voice from Claudel’s, dissociating himself from a ‘frightening apostrophe’ and ‘excessive phrase’ of the latter, namely ‘What does all this Bedouin caper matter to us?’20 Yet, if this was the attitude of Claudel to the Arab peoples, how was it possible for Levinas seriously to enlist his voice in a universal ethical claim for the latter to sacrifice some of the ‘vast spaces’ they inhabit to the State of Israel? In sum, the Foreword offers a harrowing example of Levinas’s difficulty in achieving responsible speech in the case of the State of Israel. He speaks in the voice of another, owning the voice, but also maintaining a distance from it – speaking while remaining silent. Levinas’s adoption of a paraphrase from a writer who displays evident contempt for the contemporary Arab peoples, his carefully selective practice of citation all undermine the validity of the ethical voice that he is trying to introduce into politics. His protest, the impossibility of remaining silent, seems hollow and partisan. It is vital, however, not to lose sight of the ambivalence surrounding Levinas’s speech. Levinas comments on his citation by saying ‘Today, I will no longer say refugees, but Palestinians’ seemingly recognising the right of the Palestinians to a name.21 He continues that if the State of Israel is to exist, then it must be recognised by the Arab world and be able to enter into its intimacy. Yet the peace with neighbours that is now evoked takes a further ambivalent twist when the ‘inalienable idea’ of Zionism is described in terms of the Jewish people ‘not to continue being a minority in its political structure’.22 The implications of this comment are chilling, for what are the ethical limits to a state that is motivated by the idea that a particular people must always form a majority in its political structure? In ‘How is Judaism Possible?’ Levinas appealed to the prophetic word of Judaism as a means of self-possession in the midst of inauthentic trembling; on the issue of the State of Israel, however, his voice was ambiguous, always

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trembling on the verge of silence. Was this a state unlike any other, a state participating not only in universal but also in holy history, guided by the prophetic word? Increasingly in his later sayings on the State of Israel Levinas introduces an imperative tone. In his response to Sadat’s 1979 peace initiative ‘Politics After’ (one of the three essays collected under the title ‘Zionisms’ in Beyond the Verse) Levinas said that ‘since 1948 this people has been surrounded by enemies and is still being called into question, yet engaged too in real events, in order to think – and to make and remake – a state which will have to incarnate the prophetic moral idea and the idea of its peace.’23 The obligation upon this state to incarnate the prophetic word of peace has within it the possibility that the State of Israel will not observe the prophetic word, and, like any other state, put its interests above peace and justice. What would it mean for Levinas if the State of Israel did not live up to its prophetic vocation? Levinas offered a complex answer to this question in what is perhaps the supreme testament to his ambivalence: the notorious 1982 radio broadcast on the occasion of the massacres of Palestinian refugees in the Sabra and Chatila camps by the Christian Falange in Israeli-occupied Lebanon. In response to Shlomo Malka’s question whether the Palestinian was the ‘Other’ for the Israeli, Levinas disturbingly claimed that ‘in alterity we can find an enemy’.24 The focus on this moment in the broadcast, however, overlooks the powerful critique of Zionism with which the broadcast ends. Levinas spoke there of the ‘calumny’ of Zionism, or the confusion of its message concerning the ‘relationship to the world and to human beings . . . with some sort of commonplace mystique of the earth as native soil’. The suggestion that Zionism might be slandered by the territorial ambitions of the State of Israel is confirmed by Levinas’s citation of the Talmud’s finding that those who malign the land merit death. His reading goes beyond the verse to say: ‘. . if calumny of that which is “but stones and trees” already merits death, then how serious, a fortiori must be calumny relating to human beings . . . A person is more holy than a land, even a holy land, since, faced to an affront made to a person, this holy land appears in its nakedness to be but stone and wood.’25 The Holy Land itself is thus an idol when confronted with human suffering. Once again Levinas is speaking by means of covert self-citation, but here to powerful effect. He is referring to his 1965 Talmudic Commentary ‘Promised Land or Permitted Land’ which offers the most sober judgement on the State of Israel. The reading concerns the law of calumny, of speaking badly. The calumny of the land by the explorers related in the book of Numbers is likened by Levinas to contemporary critics of Zionism: the explorers, like contemporary critics of Zionism ‘have decided, in the name of truth, to confound the Zionists’.26 While the calumny merits death, a worse punishment

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awaits the Zionists who calumny Zionism by not observing prophetic justice, of putting the securing of the land above the life of a person. For Levinas concludes his Talmudic reading by warning that those who would return to the Holy Land must: ‘not only commit themselves to justice but also apply it rigorously to themselves. Already they are potentially exiled. The date of their exile is fixed before that of their conquest . . . They assume a responsibility without indulgence and are summoned to pay for their own injustice with their exile . . . You see, this country is extraordinary. It is like heaven. It is a country which vomits up its inhabitants when they are not just. There is no other country like it; the resolution to accept a country under such conditions confers a right to that country.’ 27 What makes the State of Israel different from other states according to this reading is its commitment to absolute justice. Its right to exist issues from its putting human life above the idols of land and statehood – if it does not, then the price for injustice is expulsion from the land, exile, the end of the State of Israel. The state is ethically and politically obliged. At this point Levinas’s politics is closest to his ethics, his voice most full of prophetic responsibility, the least trembling.

Notes 1 Francois Poirié, Emmanuel Levinas Essais et entretiens, (Paris: Actes Sud, 1996), p 167. 2 Levinas, Difficult Freedom: Essays on Judaism, trans. Seán Hand, (Baltimore: The Johns Hopkins University Press, 1990), p 250. 3 Ibid. 4 Ibid. 5 Levinas, Difficult Freedom, p 249 6 Ibid., p 254. 7 Ibid. 8 Ibid., p 245. 9 Ibid., p 254. 10 Ibid. 11 Ibid., p 221. 12 Ibid., p 222 13 Ibid. 14 Ibid., p 223 15 Ibid., p 225 16 Levinas, Beyond the Verse: Talmudic Readings and Lectures, trans. Gary D. Mole, (London: The Athlone Press, 1994), p xi. 17 Ibid. 18 Ibid., p 131. 19 Ibid. 20 Ibid. 21 Ibid. p xvi.

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22 Ibid., p xvii. 23 Levinas, Beyond the Verse, p 194. 24 Levinas, The Levinas Reader, trans. Seán Hand, (Oxford: Basil Blackwell, 1989), p 294. 25 Ibid., pp 296–7. 26 Levinas, Nine Talmudic Readings, trans. Annette Aronowicz, (Bloomington and Indianapolis: Indiana University Press, 1990), p 56. 27 Ibid., p 69.

Chapter 5

Five problems in Levinas’s view of politics and a sketch of a solution to them 1 Simon Critchley

1. Recent years have seen an explosion of interest in the thought of Emmanuel Levinas. From the relative obscurity in which his work languished until the mid-1980s, Levinas is now widely seen a great philosopher whose influence extends far beyond the professional confines of philosophy. His work is read in religious studies and theology, sociology, aesthetics, literary and cultural theory, and even in political theory. This is all very nice. But the problem with this explosion of interest is that much of the work on Levinas tends to confine itself to exegesis, commentary, comparison with other thinkers and, at its worst, homage. This is finally dull and produces only discipleship and scholasticism. It would be a savage irony indeed if Levinas scholarship suffered the same mind-numbing fate as much Heidegger scholarship. Our relation to a major thinker has to be critical. In my view, politics is the name of a critical point in Levinas’s work, perhaps the critical point or even the Achilles’ heel of his work. To my mind, the question of Levinas and politics is a way of marking both a necessity and a disquietude, a necessity that entails a disquietude. The necessity is that of the passage from ethics to politics. As Levinas writes, and as many of his major commentators have pointed out, ethics as the infinite responsibility of the face-to-face relation described in Totality and Infinity, or ‘the other within the same’ of ethical subjectivity described in Otherwise than Being or Beyond Essence, entails, and has to entail, a relation to politics conceived – and conceived perhaps too traditionally, too narrowly, too abstractly – as the realm of legality, justice, the institution of the state, and everything that Levinas subsumes under the heading of le tiers, the third party. Emmanuel Levinas was not Martin Buber, and the core of Levinas’s critique of Buber’s I–Thou relation is that the abstraction of the ethical relation must be incarnated in the life of the political realm. This much is well known and we do not really require many more miles of sympathetic commentary on the relevant pages of Otherwise than Being or other texts.

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So much for the necessity, but why the disquietude? There is much to say here, but there are, for me, a series of open questions with regard to the passage from ethics to politics. Let me summarise five problems which seem to me to be essential, problems which have recently been sharpened by the appearance Howard Caygill’s Levinas and the Political, a subtle and subtly devastating book which shows the risks and the possibilities of Levinas’s work and how that work might be said to bifurcate around the question of the political.2 So, let me begin with the risks before going on to the possibilities: Fraternity – the conceptualisation of justice, community, legality and le tiers is continually linked to what Levinas calls ‘fraternity’. In terms of the secular trinity of French republicanism, it is the third person of fraternity to which Levinas appeals over the claims to liberty and equality. However, this appeal to fraternity shows, I think, the utterly classical politics of friendship – to coin a phrase – that underpins Levinas’s work. To pick one example amongst many, from Otherwise than Being or Beyond Essence, ‘the other is from the first the brother to all the other men’ (‘Autrui est d’emblée le frère à tous les autres hommes’, pp 201/158).3 That is, at the level of politics, the ethical relation is translated into what I would see as a classical conception of political friendship as fraternity, as a relation between brothers, between free equals who also happen to be male. Monotheism – that is, the linking of fraternity to the question of God, and the idea that political community is, or has to be, monotheistic. As Howard Caygill writes, commenting on Levinas’s work from the 1930s, but it is a constant feature of Levinas’s work, ‘Against the principle of freedom and being as gathering or domination, Levinas seeks protection from elemental evil in the thought of a human dignity emerging from a fraternity in which humans are called by God to responsibility for the other man.’4 In other words, the universality of fraternity is ensured through the passage to God, which incidentally recalls the classical Christian, essentially Augustinian, conception of friendship. That is, the Christian only has friends insofar as that friendship is mediated through the presence of God, which means that all humanity is my friend and no one is my enemy – such is, for Carl Schmitt, the essentially depoliticising logic of Christianity. This is one way of hearing Levinas’s phrase from Otherwise than Being, that it is ‘ ‘Thanks to God’ I am an other for the others’(AE 201/OB 158). Or again, from Totality and Infinity, ‘monotheism signifies this human kinship, the idea of a human race that refers back to the other (autrui) in the face’.5 Thus, there is a strict entailment between fraternity and monotheism, and I take it that universalistic republicanism is simply the secular translation of that entailment, ‘le paradis laïque’ of the French republic. Androcentrism – that Levinas’s conception of ethics, fraternity and monotheism is profoundly androcentric, as scholars like Stella Sandford have shown, where the feminine is thematised as the essential, but essentially

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pre-ethical, opening of the ethical.6 Relations of solidarity between women are only thinkable in analogy with fraternity – hence, sorority is secondary to fraternity, sisterhood is secondary to brotherhood. Filiality and the family – that is, the way in which the androcentric concept of fraternity is linked to what Derrida calls ‘the family schema’.7 Filiality is a key concept in Levinas, particularly in the concluding pages of Totality and Infinity. But the child is either explicitly the son, le fils, or is thought in analogy with the son, and is linked together with the concepts of paternity and fraternity as that which makes ‘the strange conjuncture of the family possible’ (TeI 256/TI 279). It should not be forgotten that Totality and Infinity concludes with an invocation of the ‘marvel of the family’ (TeI 283/TI 306). As such, one might speculate, Totality and Infinity produces a curious reversal of the logic of Hegel’s Philosophy of Right. Where Hegel begins with the family only to end with the state, Levinas begins with the totalising violence of the state only to end with the family. It then becomes a question of linking the pluralism of the family to the political order. Let’s just say that I am not convinced that the family is such a marvel. Israel – Finally, and perhaps most significantly, it would be a question of linking these four themes to what we might call (and I choose my words carefully, thinking of Heidegger) the political fate of Levinasian ethics, namely the vexed question of Israel. In relation to Israel, there is a risk – a risk and not a certainty as Howard Caygill carefully tracks in his book, but a profound risk nonetheless – that the non-place of the ethical relation to the other becomes the place of Israel’s borders. Israel risks functioning as the name par excellence for a just polity, a polity based on the pre-political priority of ethical obligation to the other – Politique après! as Levinas exclaimed in response to President Sadat’s visit to Jerusalem in 1977.8 Israel might be said to have a double function in Levinas’s discourse, as both ideal and real, as an ideal where ethical responsibility would be incarnated in social justice, and as a really existing state where justice is endlessly compromised by violence. The name ‘Israel’ is suspended, possibly fatally suspended, between ideality and reality, between holy history and political history. Might this double function, this glissement de sens, with regard to Israel, explain why, in 1982, Levinas did not feel able to condemn the murder of Palestinians in the camps of Sabra and Shatila?9 Is that why Levinas said that in alterity I also find an enemy? Maybe. One can only wonder (or perhaps worry) what Levinas might have said now when the person required by an Israeli commission of inquiry to be removed from his post as defence minister because of his culpability in a war crime – Ariel Sharon – has served as prime minister of the State of Israel and where the double function of Zion finds its most powerful support from the evangelical Christian right in the USA. One should remember that the Bible is George W. Bush’s favourite bedtime reading, where the neo-imperial project of the US government is intrinsically linked to a Zionist vision. One

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might burst into hysterical laughter if the situation were not so bloody frightening. So, five problems: fraternity, monotheism, androcentrism, filiality and the family and Israel. This is the reason why I spoke of politics in Levinas as both a necessity and a disquietude, a necessity that disquiets. Namely, that it seems to me that there has to be an incarnation of ethics in politics for Levinas, and that the name of this just polity has to be Israel, even when, as Levinas emphasises in ‘Judaism and Revolution’, a fascinating Talmudic Commentary, it is not necessary to conceive of Israel in particularistic Jewish terms. Israel is the name for any people, Levinas insists, any people that has submitted to the Law, non-Jewish as well as Jewish.10 But – and it is such a stupidly obvious but still nagging question – what about people or peoples that do not, or do not choose to submit to law conceived in this manner? What about those whom, in a careless and ill-advised remark on ‘the yellow peril’, Levinas subsumes under the category of the Asiatic, the Chinese and even the Russians insofar as they submit themselves to the ‘paganism’ of communism?11 What about those outside of the influence of the Bible and the Greeks? What about those who simply dance, in Levinas’s frankly racist aside in a 1991 interview. I quote, ‘I often say, although it is a dangerous thing to say publicly, that humanity consists of the Bible and the Greeks. All the rest can be translated: all the rest – all the exotic – is dance’.12 To which I am inclined to say: let’s dance, let’s dance all night, let’s party hearty. And what about those peoples who accept submission to the law – for Islam, of course, means submission – but who stand outside or aside from the Judaeo-Christian inheritance in Levinas’s eyes, even when they stand inside Israel, like Israeli-Arabs or inside the metropolitan European states, like the maghrebins in France? The problem of culture and cultural relativism, at the heart of Levinas’s disagreement with Merleau-Ponty, his opposition to Lévi-Strauss and his peculiar anthropological commitments to Lévy-Bruhl, looms very large. I refer you to Robert Bernasconi’s definitive work in this area.13 One way of apparently softening the charge of Zionism in Levinas is by replacing Israel with France as the major political signifier of his work. This is particularly plausible as the two themes can be traced back to the Dreyfus affair and specifically to the identification of the ideals of the French Republic with the critique of anti-Semitism, something which left a huge impression on Levinas as a student in Strasbourg, in particular through the example of his teacher, Maurice Pradines. With this in mind, it is indeed curious to observe the canonisation of Levinas as a French philosopher after his death and the utterly ugly family (the family again!) wranglings over the executive rights to his estate. In the face of the possibility, raised by Simone Hansel at the prompting of Richard Cohen, of establishing the Levinas archive in North Carolina (an intriguingly weird idea), Michael Levinas wrote in Le Monde in 1996 that ‘the attachment of my father to France was total’ and that any archive must exist in ‘un lieu français et républicain’.14 Also, we

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might wonder as to the machinations behind Jean-Luc Marion’s claim that the only two great French philosophers of the twentieth century (excluding himself, of course, or perhaps reserving himself for the twenty-first century) were Bergson and Levinas, the implication being that other French philosophers – like Deleuze or Foucault or Derrida – were either somehow irrelevant or simply commentators on German philosophy.15 This is obviously a very silly thing to say. Logically speaking, the attempted incarnation of Levinasian ethics in the supposedly concrete universal of the French state is no less repellent than the attempt to do the same in the Israeli state. I recall my palms sweating nervously as I listened to the French Ambassador to Israel make this connection in an otherwise rather eloquent speech before more than a thousand people during the first Levinas conference to be held in Israel, in Jerusalem in May 2002. There is a danger in the canonisation of Levinas as an essentially French philosopher, that is, as some sort of apologist for a conservative republicanism whose vapid universalism would somehow be caught in Levinas’s slogan ‘ethics is first philosophy’. Of course, Levinas is hardly blameless in this identification of his work with ‘une certaine idée de la France’, and in a conversation with François Poirié he notes that he held the rather curious belief, which he still finds reasonable, that the war with Germany was necessary ‘in order to defend the French language’.16

2. In my view, these are the problems that beset the question of Levinas and politics. My hope would be for a non-fraternalistic, non-monotheistic, non-androcentric, non-filial, non-familial and non-Zionist conception of the relation of ethics to politics. This also sounds very nice, but how do we get there from here? I have claimed that Levinas’s work is defined by the disquieting necessity of the passage from ethics to politics. Yet, what if we questioned the nature of this passage? For Levinas, there is a deduction of politics from ethics, from the other to all others, from autrui to le tiers, but what if this did not take place in the way Levinas suggests? On the contrary, might there not be a hiatus between ethics and politics, a hiatus that, far from inducing paralysis or resignation, perhaps opens onto a new experience of the political decision? In raising these questions in this way, I am alluding to Derrida’s Adieu à Emmanuel Levinas, which I would briefly like to address in order to pick out its central argument as it permits a powerful response to the problems we have sketched. In my view, Adieu lets us see the significant distance between Derrida’s and Levinas’s work.17 What I mean is that one way of reading Adieu is in terms of the increasingly close philosophical proximity of Derrida to Levinas, which builds upon Derrida’s 1986 remark where he said, ‘. . . Faced with a thinking like that of Levinas, I never have an objection. I am ready to subscribe to everything that he says’.18 This is an understandable

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reading and I have myself advanced arguments for such a proximity. But despite this undoubted homology, and despite the relative absence of criticism in Adieu, perhaps the latter paradoxically permits us to see that Derrida is much further away from Levinas than might at first appear. Derrida focuses on one seemingly contingent word in Levinas’s vocabulary – welcome (accueil) – which he then links to the theme of hospitality. Derrida shows how the hospitality of welcome defines the various meanings given to ethics in Levinas’s work. In my view, he rightly argues that Levinas’s Totality and Infinity can be read as ‘an immense treatise on hospitality’, where ethics is defined as a welcome to the other, as an unconditional hospitality. Yet the question that Derrida is seeking to explore in this text concerns the relation between an ethics of hospitality and a politics or law of hospitality in Levinas’s work. So the question is whether an ethics of hospitality can, in the classical manner, found the spheres of politics and law? That is, does the formal ethical imperative of Levinas’s work (‘tu ne tueras point’) lead to a determinable political or legal content? Can one deduce politics from ethics? Derrida’s claim, which in my view could be at the very least complicated – perhaps even contested – is that although Levinas sees the necessity for such a deduction, he leaves us perplexed as to how it might be achieved, and his text is marked by a silence on this crucial point (A 197). However, and this is the really interesting move in the argument, rather than judging this hiatus negatively, Derrida claims that the absence of a plausible deduction from ethics to politics should not induce paralysis or resignation. The claim is therefore that if there is no deduction from ethics to politics, then this can be both ethically and politically welcome. On the one hand, ethics is left defined as the infinite responsibility of unconditional hospitality. Whilst, on the other hand, the political can be defined as the taking of a decision without any determinate transcendental guarantees. Thus, the hiatus in Levinas allows Derrida both to affirm the primacy of an ethics of hospitality, whilst leaving open the sphere of the political as a realm of risk and danger. Such danger calls for decisions or what Derrida, citing Levinas, calls ‘political invention’ (A 144), an invention taken in the name of the other without this being reducible to some sort of moral calculus. However, Derrida’s position does not, I think, collapse into a vapid formalism or empty universalism. He emphasises how the very indeterminacy of the passage from ethics to politics entails that the taking of a political decision must be a response to the utter singularity of a particular and inexhaustible context. The infinite ethical demand arises as a response to a singular context and calls forth the invention of a political decision. Politics itself can here be thought of as the art of a response to the singular demand of the other, a demand that arises in a particular context – although the infinite demand cannot simply be reduced to its context – and calls for political invention, for creation. With this in mind, we can, I think, reformulate – indeed formalise – the problem of the relation of ethics to politics in a number of steps:

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(i) Politics cannot be founded because such a foundation would limit the freedom of the decision. In politics there are no guarantees. Politics must be open to the dimension of the ‘perhaps’ or the ‘maybe’ which is the constant refrain of the early and central chapters of Derrida’s Politics of Friendship. For Derrida – and this is a version of his implicit worry about Habermasian discourse ethics – nothing would be more irresponsible and totalitarian than the attempt a priori to exclude the monstrous or the terrible. He writes, ‘Without the possibility of radical evil, of perjury, and of absolute crime, there is no responsibility, no freedom, no decision’ (PA 247/PF 219). (ii) So the relation of ethics to politics is that there is a gap or hiatus between these two domains. And here we confront a crucial qualification of the problem of ethics and politics: namely that if politics is not founded in the classical manner, then it is also not arbitrary, for this would take us back to some libertas arbitrarium and its concomitant volontaristic and sovereign conception of the will. That is, it would lead us back to an undeconstructed Schmittianism, where the possibility of the political decision presupposes the existence of the sovereign subject, defined in terms of activity, freedom, and virility. (iii) To summarise the first two steps of the argument in a question: if politics is non-foundational (because that would limit freedom) and non-arbitrary (because that would derive from a conception of freedom), then what follows from this? How does one think a non-foundational and yet non-arbitrary relation between ethics and politics? Derrida’s claim would seem to be that there is indeed a link between ethics and politics, claiming in Adieu that, ‘This relation is necessary (il faut ce rapport), it must exist, it is necessary to deduce a politics and a law from ethics.’ (A 198) Against Schmitt, Derrida tries to capture this sense of a non-foundational, yet non-arbitrary, relation between ethics and politics with the notion of the other’s decision in me, a decision that is taken, but with regard to which I am passive. On my understanding, this means that particular political decisions are taken in relation to the universality of an ethical demand for action which I approve: infinite responsibility to the other, justice, the messianic a priori or whatever. Although this is not the way Derrida understands it, I would interpret the other’s decision in me as an experience of conscience, where the content of the latter is the other’s demand to which I am infinitely responsible and which counsels me to act in a specific situation.19 (iv) Politics, then, is the task of invention in relation to the other’s decision in me – non-foundationally and non-arbitrarily. But how does one do this exactly? Perhaps in the following way: in a quite banal sense, each decision is necessarily different. Every time I decide I have to invent a new rule, a new norm, which must be absolutely singular in relation to both the other’s infinite demand made on me and the finite context

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within which this demand arises. I think this is what Derrida means, in ‘Force of Law’ and elsewhere, by his qualified Kierkegaardian emphasis on the madness of the decision, namely that each decision is like a leap of faith made in relation to the singularity of a context.20 Such a position might be linked to one of Wittgenstein’s more cryptic remarks in the Philosophical Investigations, where he writes that in following a rule, ‘It would almost be more correct to say, not that an intuition was needed at every stage, but that a new decision was needed at every stage (es sei an jedem Punkt eine neue Entscheidung nötig)’.21 (v) So, each political decision is made experientially ex nihilo, as it were, and is not deduced or read off procedurally from a pre-given moral content, and yet it is not arbitrary, there is a rule that shapes the taking of that decision. The demand provoked by the other’s decision in me calls forth political invention, that provokes me into taking a decision and inventing a norm for the specific situation. The singularity of the context in which the demand arises provokes an act of invention whose criterion is universal. All the difficulty of politics consists precisely in this passage from the universal to the particular. (vi) To recapitulate, what we seem to have here is a relation between ethics and politics which is both non-foundational and non-arbitrary, that is, which leaves the decision open for invention whilst acknowledging that the decision comes from the other. The other’s decision in me is not so much a Kantian Faktum der Vernunft as a Faktum des Anderen, an affective, heteronomous, pre-rational opening of the subject. If the ‘fact of reason’ is the demand of the good that must be consistent with the principle of autonomy, then the ‘fact of the other’ would be the demand of the good experienced as the heteronomous opening of autonomy, the affective source for autonomous political action – which does not at all mean that autonomy is abandoned, it is simply rendered secondary. To conclude this formal argument, in my view there is a universal ethical criterion for action, which has a deeply Levinasian inflection. Yet, I am passive in relation to this criterion, I have a non-subsumptive relation to the Faktum des Anderen, perhaps a little like reflective judgement in Kant’s Third Critique. The specific form of political action and decision taking must be singular, situational and context-dependent.

3. To return to Derrida’s Adieu, this understanding of the hiatus between ethics and politics permits Derrida to make an absolutely crucial move in his reading of Levinas, a move that I would like to retain: on the one hand, it enables him to accept the formal notion of the ethical relation to the other in Levinas – what Derrida calls here and elsewhere a ‘structural’ or ‘a priori’

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notion of the messianic (A 204) – whilst, on the other hand, refusing the specific political content that Levinasian ethics seems to entail, namely the question of Levinas’s Zionism, French republicanism, Eurocentrism or whatever. Derrida writes that: ‘. . . [t]he formal injunction of the deduction remains irrefusable . . . ethics entails politics and law . . . But, on the other hand, the political or juridical content thus assigned remains indeterminate, to be determined beyond knowledge and any possible presentation, concept or intuition, singularly in the speech and responsibility taken by everyone in each situation . . .’ (Derrida, J. Adieu, p 199) Having established this hiatus or discontinuity between the form and content of Levinas’s work, Derrida goes on, a couple of pages later: ‘Moreover this discontinuity allows one to subscribe to everything that Levinas says to us about peace or messianic hospitality, of the beyond of the political within the political, without necessarily sharing all the “opinions” which, within his discourse, arise from an intra-political analysis of real situations or of an effectivity happening today, of the terrestrial Jerusalem . . .’ (ibid., p 202) Derrida makes this formalistic move in order to avoid what I called above the possible political fate of Levinas’s work, which, whilst not simply ‘un nationalisme de plus’ (A 202), continually runs the risk of being conflated with such a nationalism, with its ‘opinions’ on ‘the terrestrial Jerusalem’. However, far from being an anti-political reading of Levinas, we might see Derrida’s Adieu as a hyper-political reading. Derrida’s avoidance of the possible political fate of Levinasian ethics is not done in order to avoid concrete political questions, questions of the specific content of political decisions, but on the contrary to defend what he has elsewhere called in relation to Marx, ‘The New International’.22 Although received with more than a little scepticism by the Derrida faithful, I think the New International is a key notion in Derrida’s recent work, one that is needed today more than ever and which I see, perhaps simply as a way of provoking my Habermasian friends, as a reactivation of the emancipatory promise of modernity. In response to the good old Chernyshevskian question, ‘what is to be done?’, we might say that what is required is, as Derrida writes, ‘. . . another international law, another politics of frontiers, another humanitarian politics, even a humanitarian engagement that would hold itself effectively outside the interest of nation states’ (A 176). Sadly, we seem infinitely far from such a politics at the present moment defined as it is by the endless

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misery of war, a neo-colonial theological moralism of good and evil and a neo-imperialist projection of military power.

4. Let me conclude with a brief plea for an anarchist meta-politics. To my mind, the question of Levinas and politics turns on the issue of the incarnation of ethics in politics, namely whether ethics becomes somehow incarnated in the form of the state, whether France, Israel or elsewhere, or whether it is, as I would contest, a moment of disincarnation that challenges the borders and legitimacy of the state. It is here that Levinas’s thematic of anarchism takes on great interest, particularly the way in which that theme is handled by Miguel Abensour when he speaks of an anarchic disturbance of politics.23 This is the anarchy of the relation of proximity and substitution with the other which introduces what we might call a meta-political moment into politics. In my view, Levinasian ethics is not ethics for its own sake in the manner of what we might call ‘angelic’ readings of Levinas, but nor is it ethics for the sake of the state, which we might think of as the right-wing Levinasian option, whether that is linked to the logic of Zionism or indeed a quasiGaullist, quasi-Chiracian argument for French exceptionalism. In my view, ethics is ethics for the sake of politics. Better stated perhaps, ethics is the meta-political disturbance of politics for the sake of politics, that is, for the sake of a politics that does not close over in itself, becoming what Levinas would call totality, becoming a whole. Following Levinas’s logic, when politics is left to itself without the disturbance of ethics it risks becoming tyrannical. The problem with much thinking about politics is that it is archic, it is obsessed with the moment of foundation, origination, declaration or institution which is linked to the act of government, of sovereignty, most of all of decision which presupposes and initiates a sovereign political subject capable of self-government and the government of others. Such is arguably the intent of a tradition of political philosophy that begins in Plato’s Republic. I would contend that political philosophy in this sense is essentially antipolitical: in Hannah Arendt’s terms it consists in the reduction of the political to the social, or in Jacques Rancière’s terms it is the reduction of la politique to the order or la police. That is, the political manifestation of the people is and has to be reduced to their allotted social function in the state as soldier, worker, guardian or university professor – the social division of labour given in Plato’s Republic that finds a faithful and deeply troubling echo in Heidegger’s Rektoratsrede. What such a tradition of political thinking fears most is the people, the radical manifestation of the people, the people not as das Volk or le peuple shaped by the state, but as die Leute, or les gens, the people in their irreducible plurality. One way of thinking about Levinas and politics, and I think it is the

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most convincing way, is in terms of ethics as an anarchic, meta-political disturbance of the anti-political order of the police. It would here be a question of linking what Levinas sees already in Totality and Infinity as ‘the anarchy essential to multiplicity’ (TeI 270/TI 294) to the multiplicity that is essential to politics. The essence of politics, as far as I’m concerned, consists in the manifestation of the multiplicity that is the people, of the demos. Who are the people? They are not the alleged unity of a race, the citizens of a nation state, the members of a specific class like the proletariat, or indeed the members of a specific community defined by religion, ethnicity or whatever. The people cannot be identified and policed by any territorialising term. Rather the people is that empty space, that supplement which exceeds any social quantification or accounting. The people are those who do not count, who have no right to govern whether through hereditary entitlement like the aristocracy or by wealth and property ownership like the bourgeoisie. If the activity of government continually risks pacification, order, the state and what Rancière refers to as the ‘idyll of consensus’, then politics consists in the manifestaton of dissensus, a dissensus that disturbs the order by which government wishes to depoliticise society.24 If politics can be understood as the manifestation of the anarchic demos, then politics and democracy are two names for the same thing. Thus, democracy is not a fixed political form of society, but rather the deformation of society from itself through the act of political manifestation. Democracy is a political process, what we might think of as the movement of democratisation. In my view, democratisation consists in the manifestation of dissensus, in demonstration as demos-stration, in the street – even dancing in the streets – in London, in Berlin, in New York, but equally in Damascus, in Tel-Aviv, in Cairo, but also in Basra, in Baghdad, manifesting the presence of those who do not count. Democratisation is politicisation; it is the cultivation of what I call forms of ‘dissensual emancipatory praxis’ or what might also be called politicities, sites of hegemonic struggle that work against the consensual idyll of the state, not in order to do away with the state or consensus, but to bring about its endless betterment. Politics is now, and it is many. If we are not to resign ourselves to the finally defeatist position of Rancière and many others that politics is rare, the last great example being 1968;25 if we are not going to bow beneath the fate of contemporary neo-imperial power intoxicated by military moralism (‘you are evil, we will bomb you’); if we are going to be able to face and face down the political horror of the present, and Levinas’s work was always dominated by that horror, then I think politics has to be empowered by a meta-political moment of disturbance, an anarchic ethical injunction and the experience of an infinite ethical demand. Despite all the political problems discussed in this paper, this is our infinite debt to the work of Emmanuel Levinas.

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Notes 1 This paper was written during the first days on the conflict in Iraq, in March 2003 and was to a large extent inspired by the huge and global anti-war protests that preceded the conflict. I would like to thank Stephen White and a stunning anonymous reader for their excellent responses to my paper, which enabled me to focus on a number of issues, even though I have not adequately responded to their criticisms. 2 Howard Caygill, Levinas and the Political (London and New York: Routledge, 2002). 3 Levinas, Autrement qu’être ou au-delà de l’essence (The Hague: Martinus Nijhoff, 1974), p 201. Otherwise than Being or Beyond Essence, trans. A. Lingis (The Hague: Martinus Nijhoff, 1981), p 158. Hereafter AE/OB. 4 Caygill, Levinas and the Political, op.cit. p 31. 5 Levinas, Totalité et infini (The Hague: Martinus Nijhoff, 1961), p 190. Totality and Infinity, trans. A. Lingis (Pittsburgh: Duquesne University Press, 1969), p 214. Hereafter TeI/TI. 6 Stella Sandford, The Metaphysics of Love (London and New York: Continuum, 2000). 7 Derrida, Politiques de l’amitié (Paris: Galilée, 1994), p 12. hereafter PA. Politics of Friendship, trans. G. Collins (London and New York: Verso, 1997), p viii. Hereafter PF. 8 Levinas, ‘Politique après’, in L’au-delà du verset (Paris: Minuit, 1982), pp 221–8. 9 See Levinas, ‘Ethics and Politics’, in The Levinas Reader, (ed.) S. Hand (Oxford: Blackwell, 1989), pp 289–97. 10 Levinas, ‘Judaism and Revolution’, in Nine Talmudic Readings, trans. A. Aronowicz (Bloomington: Indiana University Press, 1990), pp 94–119. 11 Levinas, ‘Le débat russo-chinois et la dialectique’, Les imprévus de l’histoire (Montpellier: Fata Morgana, 1994), p 172. This article is interestingly discussed in Caygill’s Levinas and the Political, op. cit. pp 182–5. 12 Raoul Mortley, French Philosophers in Conversation (London: Routledge, 1991), p 18. 13 See, for example, Levinas, ‘One-Way Traffic: The Ontology of Decolonization and its Ethics’, in Ontology and Alterity in Merleau-Ponty, (eds) G. Johnson and M. Smith (Evanston: Northwestern University Press, 1990), pp 67–80; and ‘Who is my neighbor? Who is the Other? Questioning the “Generosity of Western Thought” ’, in Ethics and Responsibility in the Phenomenological Tradition (Pittsburgh: Simon Silverman Phenomenology Center, Duquesne University, 1992), pp 1–31. 14 Le Monde, July 26, 1996. 15 Jean-Luc Marion, L’arche. Le mensuel du judaïsme français, February, 1996, p 65. 16 François Poirié, Emmanuel Levinas. Qui êtes-vous? (Lyon: La Manufacture, 1987), p 74. 17 Derrida, Adieu à Emmanuel Levinas (Paris: Galilée, Paris, 1997). Hereafter A. 18 Derrida, Altérités (Paris: Editions Osiris, 1986), p 74. 19 The argument for the experience of conscience as the link between ethical responsibility and political action will be presented systematically in a forthcoming book on ethics. 20 See Derrida, ‘Force of Law: The ‘Mystical Foundation of Authority’ ’, in Deconstruction and the Possibility of Justice, D. Cornell et al. (eds) (London and New York: Routledge, 1992), p 25. 21 Wittgenstein, Philosophical Investigations, trans. G. E. M. Anscombe (Oxford: Blackwell, 1958), remark 186.

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22 Derrida, Spectres de Marx (Paris: Galilée, 1994). 23 See Miguel Abensour, ‘anarchy between Metapolitics and Politics’, Parallax, No. 24 (2002), pp 5–18. See also Abensour’s La démocratie contre l’État (Paris: Presses Universitaires de France, 1997). 24 Ref La mésentente (Paris: Galilée, 1995), p.141. 25 Ibid., p 188, ‘La politique, dans sa spécificité est rare’.

Chapter 6

Levinas and the limits of political theory C . Fred Alford

‘Politics left to itself bears a tyranny within itself.’1

Introduction What if the prophet were also a political theorist? What if he didn’t respect the boundaries that divide Athens from Jerusalem? Would we dare to listen to him when he talked about politics? Or are prophets simply too disruptive of all the known distinctions? In one sense, the question is too late. Emmanuel Levinas is already in. Jacques Derrida opened the door, first criticising Levinas, and then eulogising him.2 Since postmodernism is so influential in academia, it is no wonder that Derrida’s endorsement (if that is what it was) made Levinas respectable, a theorist of otherness and difference like a hundred other postmoderns. Or so it might seem. Abstract and evocative, writing in what can only be described as the language of prophecy, Levinas has become everything to everyone. We pretend we get it, writing in much the same style, so as to say whatever we wanted to say in the first place. The Levinas Effect it has been called, the ability of Levinas’s texts to say anything the reader wants to hear, so that Levinas becomes a deconstructionist, postmodern, or proto-feminist, even the reconciler of postmodern ethics and rabbinic Judaism. Fortunately, among political theorists, there is still time to avoid the Levinas Effect. The question is how to do this. How best to think about Levinas as a political theorist without succumbing to the Levinas Effect? How best, in other words, to take seriously the challenge Levinas poses to political theory? One way is by showing Levinas’s incompatibility with a widely known and respected work in political theory, a work with which Levinas’s work would seem to have much in common. The work is Iris Marion Young’s ‘The Ideal of Community and the Politics of Difference’. Like Levinas, Young is a critic of totality, which is said to eliminate otherness in the name of the same. Now, at least one critic has put Levinas and Young on the same page in political theory.3 This is not surprising. For some time now postmoderns and deconstructionists have had an affinity for Levinas.

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The affinity is misleading, however, and Young’s is a case in point. Young and Levinas could not be more different. Levinas poses a threat to political theory as it is conceived by moderns and postmoderns alike; his challenge is concealed by the more familiar debate between communitarianism and liberalism, a debate in which Young’s piece participates, even if it would be more accurate to call Young a postmodern.

1. States of nature; or, how our tidy home is always in a state of nature It may be useful, if at first sight misleading, to think of the difference between Levinas and Young in terms of that familiar trope in political theory, the state of nature. Nevertheless, employing a trope more common to Hobbes, Locke and Rousseau than to those who most influenced Levinas, Husserl and Heidegger, is a way of gaining a little distance on our subject. It is an attempt to create commensurability, which does not mean an identity but a basis for comparison, among Levinas, Young, and political theory. Even so, the image of the state of nature is not alien to Levinas. From beginning to end of his project the image of the Hobbesian state of nature is waiting in the wings, the hell to which men and women are consigned when they live only in and for this world. He concludes his late masterwork, Otherwise than Being, by rhetorically asking whether ‘the egalitarian and just State proceeds from a war of all against all, or from the irreducible responsibility of the one for all?’ And he begins his early masterwork, Totality and Infinity, by asking if Hobbes’s war of all is a permanent state of being (Yes, he answers, which is why we must seek non-being).4 Levinas’s difference with traditional state of nature theorists is that he collapses the state of nature, the state of war and the State itself. For Levinas, there is little difference between these three states, which is why Totality and Infinity equates the state of war with the peace of empires – that is, with the existing world order – not just among but also within states. The state of nature is the realm of contracts and exchange of sentiments, namely the war of all against all by other means. In this order there is war and there is peace. The needs of the citizens of this world ‘relate them to one another and create an “economic” system of mutual satisfaction as well as a political network of resistance, tension, war and peace for the sake of satisfaction. Ruled by universal interest, human history is an alternation of war and peace on the basis of needs.’5 For a moment Levinas sounds like Locke. The difference is that for Locke this state may become legitimate. For Levinas, the state of war, the state of nature and the State are nothing but variations on a common theme, characterised by ‘Cain-like coldness’, which sees the world in terms of freedom or contract. Ordinary human relations of affection and trust are mere ‘transfers

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of sentiment’ as Levinas disparagingly calls them, a selfish exchange in the market of sentiments.6 Three propositions about the State define Levinas’s project: (i) peace is impossible within the State; (ii) peace is possible beyond the State; (iii) going beyond the State to find peace cannot mean leaving the State behind. All three propositions are reflected in the title of an article published shortly after his death, ‘Beyond the State in the State’. The transcendence of the State must somehow take place within it even (or especially) the State of Israel, about which Levinas wrote several essays.7 The question, of course, is whether all this wordplay leads to anything substantial. Imagining that Levinas is writing about the state of nature is one way of answering this question. Thus, I locate Levinas’s state of nature in an apartment, not the most familiar place to locate the state of nature, but one that makes perfect sense once one recognises that Levinas draws no distinction between the state of nature and civilised society. Lest this equation of the state of nature and civilised society seem apt when applied to Levinas, but inapt when applied the traditional state of nature theorists, recall that it is Locke who stressed the continuity of these two states (which is why dissolving the government does not lead to anarchy). Similarly, C. B. Macpherson argues for the virtual identity of these two states as markers not just for markets, but also for the individuals who inhabit them. For Macpherson the mark of possessive individualism, which joins not just Hobbes and Locke, but the state of nature with civil society, is not material acquisitiveness, but the ‘conception of the individual as essentially the proprietor of his own person or capacities’.8 It is precisely this that Levinas challenges. Or rather, it is precisely this with which Levinas agrees, which is why he deems it is necessary to move beyond both state and nature. An apartment is an appropriate place to locate the state of nature for another reason as well. Apartments are generally located in cities. After exploring Levinas’s state of nature, I will turn to Young’s praise of the ‘diverse city’. Does a Levinasian have any right to call Young’s city a vision of hell? That is the challenge Levinas poses for political theory. Is the diverse city merely a more sophisticated version of the war of all against all? Levinas thinks it is, as truly humane relationships (that is, relationships that put the other human first) are banished to the realm of heavenly ideals.9 Levinas brings these ideals back to earth without invoking a traditional (or even untraditional) theology. This is, I believe, the source of his appeal to moderns and postmoderns alike. Though Young’s is a convenient work to compare with Levinas, it is not only, or even primarily, Young whom I am interested in vis-à-vis Levinas. I am interested in the way Levinas seems to provide an ethical basis for the leading categories of postmodernism, difference and the other. ‘I’m ready to subscribe to everything he says,’ Derrida said about Levinas.10 Do most postmoderns really understand what they are getting into when they draw upon Levinas to give ethical sanction to the categories of difference and the other?

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2. Someone rings the doorbell of your apartment Sitting in your apartment (Levinas would call it ‘in a state of nature’ no matter how ‘state of the art’ it looks), suddenly the doorbell rings. What could that portend? As you walk to the door you are distracted, still thinking about your latest project. It takes you a moment to recognise your neighbour at the door, the one who lives upstairs; as soon as you recognise his face you invite him in. You talk for a while. He tells you his problem, you tell him what you might do to help him. You share some pleasant conversation, and soon enough your neighbour leaves. What you originally experienced as an interruption you now experience as a pleasant interlude, in which some understanding has passed between you and your neighbour. Or so it seems.11 Instead of immediately returning to your work, or allowing the memory of a pleasant interlude to linger, Levinas asks that you try to recapture the shock of the other’s intrusion, the moment when you were first confronted with the other person’s face, but before you recognised him. What did you experience in this fraction of a second? You experienced, says Levinas, an encounter with the other in all his or her immediacy, but with none of his or her particularity. The other’s face, says Levinas, is naked and vulnerable, common to all humans and absolutely unique at the same time. The result of your encounter is an experience of unmediated otherness so shocking that for an instant it must have shattered your ego. Was it not an irruption, not just into your life, but also into the order of your world? Did you not feel that a door had been opened into another world, not just into the hallway of your apartment building, but into infinity? It cannot have been an entirely pleasant experience, but perhaps it was not so unpleasant either. The world of your apartment, your desk, and your work is fulfilling, but limited. You soak up the morning sunlight that pours in through the big windows, and at night the sparkling lights of the city make it seem as if you live in an enchanted world, ready to meet your needs. But occasionally the thought crosses your mind that there might be more to life than this. If one were going to characterise your life prior to the encounter at the door in terms of traditional state of nature theory, it would probably come closest to that of Rousseau. Not his ‘noble savage’, but the earliest stages of civilisation that follow, when men and women live together in families and towns, ‘maintaining a golden mean between the indolence of the primitive state and the petulant activity of our vanity’.12 The epigraph that introduces Levinas’s Otherwise than Being is from Pascal: ‘That is my place in the sun. That is how the usurpation of the whole world began.’ This sounds like Rousseau talking about the advent of private property but for Levinas what spoils things is the individual’s belief that he owns himself. Strikingly similar to Levinas’s is Rousseau’s emphasis on the narcissism of this earliest stage of civilisation, in which men and women use each other without acknowledging their dependence, their need for others. It is not just

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property, but mutual dependence, which spoils this idyllic state. Or, as Levinas puts it, ‘in enjoyment I am absolutely for myself. Egoist without reference to the Other, I am . . . outside of all communication and all refusal to communicate.’13 Levinas puts it this way because he wants awareness of separateness without awareness of difference, for that would imply that there is a totality that encompasses self and other through which we know both at once. For Levinas, I know others in my world but they remain part of the wallpaper of my life, present but unnoticed. Until, that is, they frustrate me. Although your apartment hardly sounds like Hobbes’s state of nature, it is not so far away from that construction either. The state of nature is an idea of great subtlety. Regarding Hobbes’s state of nature, Sheldon Wolin writes that it is not so much a place of violence as a state of subjectivity, what Levinas calls humanity’s ‘natural’ narcissism. As he puts it, ‘to describe the state of nature as a state of subjectivity rather than as simply the absence of sovereign power points to Hobbes’s belief that’ what marks the state of nature is not just, or even primarily, war and violence, but the primacy of subjective reason, the reason that sees the world as prey, the subject of my will and reason. This perception is, for Hobbes, naïve, not the result of strategic or scientific thinking, but the narcissistic nature of man. Levinas would agree completely, which is why men and women must be lifted out of nature if peace is to be possible.14 Why seek a peace beyond the self-referentiality of subjective reason? Although you live a satisfying existence in your apartment something is missing from your life and your encounter with the other face at the door reminds you of what it is: the rest of the world, one that extends to infinity. When you heard the doorbell ring it could have been anyone, a world of infinite possibilities at your door. Or at least so you might have imagined for a moment. For a moment the order of your world was exposed to the disorder of infinite possibility. Your neighbour could have been anyone, needing anything, asking everything. It would be a mistake to characterise the encounter with the other as an experience that lifts you ‘out of ’ the state of nature, that is as if one follows the other exactly as in the way that can tell the story step by step, where time is linear. In reality – a reality that is ahistorical – one is always already in thrall to the other. Neither is it true to say that the encounter with the Other at the door reminds one of what one already knew, as in Plato’s anamnesis. Levinas, rather, understands the encounter with the face in terms closer to the medieval nunc stans, an encounter beyond time. The result is not to lift you ‘out of nature’ but to expose your nature to the heavens above. This is what Levinas calls an experience of exteriority: exteriority exposes being to the dimension of unknowable, untheorisable height. Still, it is my ‘nature’ to be a political theorist and even if my image of an apartment is misleading in some respects, in others it is not. Indeed, it is often Levinas’s own image. As Derrida reminds us, Levinas writes about doors a lot, the door almost always representing an opening to infinity, one about

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which we have a choice whether to open or close it (The cover of Derrida’s Adieu to Emmanuel Levinas displays an image of an open door). As Levinas himself puts it: ‘the separated being can close itself up in its egoism, that is, in the very accomplishment of its isolation. And this possibility of forgetting the transcendence of the other – of “banishing with impunity all hospitality . . . from one’s home – attests to the absolute truth, the radicalism, of separation . . . The possibility for the home to open to the Other is as essential to the essence of the home as closed doors and windows.” ’15 About truths and images so abstract and metaphysical they boggle the mind, homey images are essential – for Levinas, and for us all. What is striking – and could constitute the most digestible Levinasian insight for political theorists – is that, for Levinas, even the state of nature is a homey image! Far from representing the hypothetical domain where life is uncivilised, brutish and short, in Levinas’s strange ‘metaphysics’ (though here a more apt term would be proto-physics), the ‘natural state’ is an all-encompassing term including nature, civilised society and its discontents. At the same time, far from agreeing with those who see voluntary submission to the law as the only way out of said discontents, Levinas sees the anarchic experience of infinity, or the command to be-for-the-other, running through nature and history, undoing the artificial distinctions between is and becoming. ‘All the transfers of sentiment which theorists of original war and egoism use to explain the birth of generosity could not take root in the ego were it not, in its entire being, or rather its entire nonbeing,’ subject to infinity.16 Assume, then, that you open ‘your’ door. How might you respond to this experience of the infinite? You feel shocked, maybe a little scared, but according to Levinas you also feel gratitude for being released from your little world of pleasures and worries. It is a defeat of your self-satisfied little world that is ultimately a victory, as you now belong to another, your personal Other. You feel small and insignificant but not devalued because your life now has a purpose: to serve the Other; and by the same token, you are chosen, assigned an individuated fate. For the first time in your life you are singularly free. Not ‘free to do what you want’ but free even to put your very being into question and, faced with the unjustifiability of your existence, to be-for-an-Other. For Levinas that is the true meaning of freedom, the investiture of freedom he calls it, as though you were a knight sent on a sacred quest to serve the other.17 That ethics stands for the calling into question of my freedom, therefore, does not mean that ethics is more important than freedom.18 I find my freedom in serving the other. Freedom is heteronomy, not autonomy. ‘But the calling into question of this wild and naive freedom for itself . . .’ – an implicit reference to Sartre – ‘. . . sure of its refuge in itself, is not reducible to a negative moment. This calling into question of oneself is in

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fact the welcome of the absolutely other.’19 This welcome is your passage to freedom. Prior to your exposure to the other in the face of the Other who rang your bell, you existed in your own little world. Others existed, they met your needs, but they were part of the background. One might say the same thing about your self. It is only with your exposure to the other that you come to exist in freedom. Not, however, by means of what Hegel called the dialectic of mutual recognition, in which you define yourself through struggle with another. Dialectic requires dialogue, contact, even struggle, and across the infinite space that divides us there can be little human contact. Levinas calls this an encounter ‘without relation’, as the Other remains absolutely other.20 The face of my neighbour at my door renders me guilty as one who has done less than he could. This is an infinite guilt because I can never do enough since doing ‘enough’ would require that I know the Other’s needs as I know my own, in which case ‘ethical freedom’ would be as limited as my knowledge. The best I can do to guarantee my freedom, therefore, is to devote myself to serving the Other as absolute other – as one whose true need will forever elude me. Freedom rests on guilt for what I have not done and cannot put right! Responsibility is persecuted subjectivity, the only way in which subjectivity may be known, as the prosecution of the narcissism of the I. ‘The word I means to be answerable for everything and for everyone,’ says Levinas.21 This, says Levinas, is real humanism, one that knows that it is my Other as other who comes first, defining me as the other’s hostage. I am able to experience my own subjectivity only as a hostage to the other. The subject comes into existence only through its one-way exposure to this Other who is other, which is what Levinas means when he defines subjectivity as ‘the other in the same’. ‘The psyche in the soul is the Other in me, a malady of identity.’22 A malady of an identity it may be, but it is also the only way I am identified as singular: a being hostage. I am responsible to the Other because my existence as individuated, selfconscious subject depends entirely on my relationship to the other. Before that I was not much different from a contented cow, but one that drank up the milk of the world. In states of nature, men and women are not much different from cattle for Levinas, like the cattle in The Republic (586a–b), greedily eating one moment, kicking and butting each other with hooves and horns of steel the next.

3. Levinas’s non-liberal defence of liberal individualism ‘We oppose to the objectivism of war a subjectivity born from the eschatological vision.’23 Is not Levinas describing a religious encounter? Should we not keep experiences like this out of politics as the last six hundred years of European history have taught us? Indeed, his work is explicitly an attack on the idolatry of politics instructing us not to derive our political interest

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from the categories of friend and stranger but, instead, from the ethical imperative to heed the call of the other, exemplified in the ‘primordial’ relationship between two humans that I have described in terms of answering the ringing at the door. Confronted with the other, I have but two choices: to kill him, either physically or symbolically, through my indifference, or to serve him. Thereafter, politics, as the antithesis of all-out war or autism, is ontologically derived from ethics rather than interest and indifference, love and hate. Confident that reason can justify and found an objective order that preserves and protects the freedom of all, most political theorists busy themselves applying pseudo-universal laws, which, we all know, invariably are exclusive. The result is called ‘peace’, or, sometimes, ‘justice’. In Levinas’s perspective, said ‘peace’ and ‘justice’ are terms that respectively obscure and justify unethical violence because they are meaningful in discourses that recognise not vulnerable others who must be approached as unique irrespective of difference (the meaning of face, naked, disincarnated, exposed), but types, statuses and roles. By treating everyone the same, for example as ‘citizen’ with equal rights to ‘be different’, such ‘peace’ and ‘justice’ actually are different names for what Levinas calls totalisation, processes that subject individuality and uniqueness to universal categories. Justice as totalisation is the signal virtue of mass democracy. To be sure, treating everybody the same is better than invidious discrimination but it pays lip service to the particularity it purports to uphold since the latter is defended only in so far as it is knowable and comparable. Ethically, however, it is not that you deserve to be treated like everybody else; rather, I must treat you as if uniquely demanding my attention. Ethically, ‘[W]e call justice this face-to-face approach in conversation.’24 What exactly this could mean for the practice of politics is, of course, the question. It seems as if Levinas is implicitly accepting the theoretically dubious, if historically well-established, distinction between the private and public realms in his effort to transcend it. Indeed this seems to be the case in so far as ‘[T]here are . . . tears that a civil servant cannot see: the tears of the Other.’25 Yet, this is not a lamentation. Rather, this impotence of the civil servant as civil servant is, at the same time, his or her ability as ethical subject: ‘[T]he I alone can perceive the “secret tears” of the Other, which are caused by the functioning – albeit reasonable – of the hierarchy.’26 This is, in a nutshell, what might be called, Levinas’s non-liberal defence of liberal individualism. The individual is the greatest value but only because he or she can always already perceive the tears of the other, no matter how formal the setting and irrespective of spatio-temporal or emotional contiguity. If this is the case, then our question becomes: what modifications must our political theory undergo to find a place for this Auf hebung of liberalism in Levinas’s work? On the surface most of Levinas’s political theory is quite uninspiring and even naïve, simply assuming the necessity of such bureaucratic institutions and laws as exist in today’s Western democracies. The need for political

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theory, in sum, arises from the fact that no two people are ever ‘on an island’ of ethics, so to speak, but each is constantly confronted with a multiplicity of demands by many people – evoked in the term ‘the third’ or the other to my Other – whence the need for ‘justice’ based on distinction, comparison and measurement. One seldom thinks of politics with such a deep sense of relief as is felt when turning from Levinas’s sophisticated account of ethics, based on his post-metaphysical version of infinite obligation, to his naïve view of politics; indeed, the tone of Levinas’s politics lacks the hyperbole of his ethics and ‘the third’ almost appears as the white knight who saves us from being consumed by the infinite needs of the singular Other. For I may owe my Other everything, but when there are many others, I must distribute my obligations among them: ‘[T]o the extravagant generosity of the for-the-other is superimposed a reasonable order . . . of justice through knowledge,’ is how Levinas puts it in ‘Peace and Proximity’, his most sustained treatment of ethics and politics.27 Furthermore, when there are many others, I, too, become another, for whom obligations exist. Hence, although I am ethically obligated to sacrifice myself for a particular another, others in general (society, the state etc.) are never ethically ‘justified’ to expect or impose it on me. In reality, with the introduction of ‘the third’ in Levinas’s scheme, the critique of ‘justice’ as the principle of equal treatment becomes more substantial than the mere charge of ‘totalisation’ made above. For one, the notion of distributive justice becomes intelligible without any need for further justification and is not pragmatically pre-determined; for there is never any question of ‘how much’ I owe the other vis-à-vis myself: I owe everything, or rather more than everything since my obligation is infinite in a finite world. That my responsibilities are infinite while my resources, including time and attention, are not does not appear to be a problem. Levinas puts it this way: ‘[C]omparison is superimposed onto my relationship with the unique and the incomparable, and, in view of equity and equality, a weighing, a thinking, a calculation.’28 Calling distributive justice a superimposition, however, is not suggesting that the burden of distribution is not implied in the ‘original’, ethical encounter with the other, for Levinas maintains that ‘the third’ is present all along, flanking, so to speak, my original discovery of responsibility in the for my Other. Because of this, the ‘face’ of my Other ‘appears in solidarity with all others’.29 In sum, the imperative to care for all others is itself part of the original encounter with the personal Other. How this is to be done is the subject of ‘justice as equality’ once it is seen from the point of view of Levinasian ethics. The ‘double structure of community’ is how Simon Critchley refers to this aspect of Levinas’s thought: the community is a relationship among equals, which is paradoxically based on the non-egalitarian moment of the face-to-face ethical relationship. Critchley quotes Levinas as stating that justice is ‘an incessant correction of the asymmetry of proximity’ – that is, the asymmetry of the face-to-face

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relationship. It is, however, not certain that Critichley, following Derrida, is right to conclude from this that, through justice, the ‘I’ becomes the Other’s equal. Did not Levinas incessantly stress the asymmetry before the Other?30 In my view, instead of ultimately arriving at a symmetrical relationship among equals, Levinas constructs an aporia based on the impossibility of becoming as responsible for all as I can be for one Other. As Jeffrey Bloechl puts it, ‘it is not just this one other person who obsesses me, but all the Others too. This is more than an empirical complication: in the human face, I am commanded by all the Others at once.’31 How can I do what cannot but must be done? This is the leading problem posed by Levinas for politics. The introduction of the third, which appeared to be such a relief, turns out to be no such thing. While the third makes me an other to all the others, ensuring that the subject of ethical responsibility should not be sacrificed, the third arguably stands for the infinite number of singular Others whom I must serve obsessively. This is what I understand when Levinas collapses the other and the third by saying: ‘The face is both the neighbour and the face of all faces.’32 If this is the case, then, the function of the third that introduces the need for justice in Levinas’s work is not to transform his idea of responsibility from its hyperbolic ethical signification into a politically intelligible term. Rather, it serves the function of accentuating the sense of aporia to the point that it becomes clear that politics need not fulfil the role it is incapable of fulfilling, that of founding philosophy. ‘The role assigned to philosophy is not to provide solutions, but to prevent the cynicism of political reason from silencing other dimensions of thought.’33 Philosophy, therefore, signifies the impossibility of cynicism as the other side of politics. Here lies, I think, the major contribution of Levinas to political theory. The point can be made less abstractly, and at the same time rendered more complex, by looking at Levinas’s critique of mass democracy. To be sure, one has to look long and hard for this critique, for it is nowhere systematically developed. One finds it in some short pieces on current events written decades earlier, many for Esprit, the voice of ‘progressive, avant-garde Catholicism’, as Levinas put it.34 In ‘Reflections on the Philosophy of Hitlerism’, originally published in 1934, Levinas wrote of the ‘return of paganism’, the forces of race and nature, what he calls the ‘forces of fatality’.35 Moreover, in the 1956 essay, Sur l’esprit de Genève, referring to a summit conference that for a brief moment promised relief from the Cold War, Levinas once again wrote of ‘forces without faces’, by which he ostensibly meant nuclear weapons. In both essays the guiding idea is seemingly entirely Heideggerian: humans are no longer in charge of their history. We have given ourselves over to the forces of a reified nature, the forces of fatality, be they race or atomic energy. ‘For politics is substituted a cosmo-politics that is a physics’.36 Clearly, in his assessment of the ‘new paganism’ Levinas shares much with the Frankfurt School’s critique of the dialectic of Enlightenment. Both

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see reason and progress as leading to a return of the primitive, as the natural world is invested with new powers to reign over man. Here, however, I want to complicate matters by suggesting that, in this part of Levinas’s work, these ‘forces without faces’, against whom humanity is powerless, constitute the hither side of what, elsewhere in his work, is called the ‘third’. The hither side of ‘the third’, that is of human multiplicity that introduces the need for justice, is the alienated, inhuman other that threatens to make human politics obsolete. Seen from this perspective, Levinas’s ‘face of the other’ takes on a new, seemingly melancholic, importance as the last remnant of the human in an increasingly, unavoidably, inhuman world. But this is not just the usual religious mourning for the ‘original fall’ of humanity for Levinas’s critique of the modern ‘forces without faces’ constitutes a specific critique of the re-mythification of nature by the categories of science and pseudo-science. Seen this way, Levinas’s ‘paganism’ sounds like what the Frankfurt School called instrumental reason and that is something that has not received enough attention even if it is probably one of the main reasons why Levinas is so liked by the postmoderns. Where the postmoderns have difficulties with Levinas is, of course, his dedication to the category of the unique ‘individual’. Now, one does not think first of Levinas as a critic of the loss of individuality in mass democracy, but that too is certainly one of his iterations. No defender of liberal individualism, Levinas defends the individual because only the individual can see the tears of the other. Levinas’s ethically individuated ‘individual’, or one-for-the-other, lacks all essence but retains the strong meaning of the one who acts ‘as if ’ unique. Their analyses of the disease of Western thought being so close in tone and content – including in their treatment of the guilt for the self-assertion necessary to exist in this world – it comes as a surprise that Levinas and the Frankfurt School reach such different conclusions. Both are concerned with the tendency toward totalisation, best defined as the reduction of the other to the same, a shorthand for the neutralisation of difference. The moment one looks at their solutions, however, it becomes apparent that they mean something quite different by totality and same. Against totality, Theodor Adorno sets the particular. Levinas sets infinity. Reversing Kantian subjectivity, Adorno would let the object take the lead in defining itself. Yield to the object; do justice to its qualities; refrain from definition. Let the object be, approach it with utmost velleity, help it to become what it is. These are the watchwords of Adorno’s approach, whose utopian goal is, as Martin Jay puts it, ‘the restoration of difference and non-identity to their proper place in the non-hierarchical constellation of subjective and objective forces he called peace.’37 For Adorno, subject and object remain in a tender relationship, almost like a teacher waiting patiently for a child to finish her long story without interrupting. ‘Distant nearness’ Jürgen Habermas has called it, a useful term as long as we remember to emphasise the distance over the nearness. For Adorno, beautiful otherness is principally an aesthetic experience,

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one that requires closeness but not intimacy. Not: distant nearness; but: a ‘relation without relation’ marks the encounter with the other in Levinas’s work. If Levinas has a motto, it is these lines from Dostoevsky’s Brothers Karamazov, which he quotes more than a dozen times throughout his work: ‘Every one of us is guilty before all, for everyone and everything, and I more than others.’ For Levinas, the only ethical relationship between you and me is one in which I become your hostage, persecuting myself for your sins. By contrast, Adorno’s account of distant nearness sounds positively cuddly, a term one would otherwise not associate with Adorno (although Habermas once used the term anschmiegen (snuggle) to describe Adorno’s ideal relationship to nature).38

4. Ethical substitution as inverted individualism Levinas’s apartment, his state of nature, is presumably in the city. Like Socrates, Levinas does not think much of the countryside. For Levinas, awe before nature is a pagan heritage. But if Levinas is a man of the city, this is not the diverse city that theorists like Marion Iris Young idealise in her Justice and the Politics of Difference. How, then, does Levinas’s’ view of the city compare with that of sophisticated critics of communitarianism such as Young? Young argues, and Levinas would presumingly agree, that communitarianism is driven by a totalising impulse.39 Communitarians may not want to make everyone the same, but they want to bring them into a relationship in which subjects are no longer exterior to one another. The ideal of community participates in what Derrida calls the metaphysics of presence and Adorno calls the logic of identity, a metaphysics that denies difference. The ideal of community presumes subjects can understand one another as they understand themselves. It thus denies the difference between subjects. The ideal of community, finally, totalises its conception of social life. Returning to Levinas, community is certainly not his ideal. His scheme being organised around the face-to-face and the third party, which stands for plurality, ‘all social tasks are consequences of, and preparations for, the possibility of adequate face-to-face relationships’.40 Plurality, therefore, remains an abstraction, rendered concrete in his earlier works in the context of the family, but rarely in the form of the community.41 On the contrary, community is always suspect, a human entity more likely to evoke roots and blood than the universal peace of fraternity. If Young and Levinas share so much, why do they not converge on the theme of a diverse city? Consider Young’s criticism of the face-to-face relationship that actually characterises community: ‘It presumes an illusory ideal of unmediated social relations and wrongly identifies mediation with alienation.’42 In Young’s diverse city, by contrast, mediation, not face-to-face, defeats totalitarianism. There are lots of different people belonging to lots of different groups, everyone has a decent job, there are no homeless and no one is stuck forever

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washing the dishes and sweeping the floors. As Young puts it ‘there is equality among socially and culturally differentiated groups, who mutually respect one another and affirm one another in their difference.’43 But even as she writes about people tolerating each other, sometimes enjoying each other’s music and cuisine, it is the city’s diversity of architecture, music, and restaurants that are the attractions most appealing to Young. There is something horrifying about such a city from the perspective of Levinas. Many of the citizens have no face-to-face relationships with each other. And none of them have faces, which is why they can tolerate each other so well – because they keep their distance, even if they eat dinner in each other’s neighbourhoods, respectfully enjoying each other’s way of life. Absent in Young’s vision is not only the cloying closeness of community. Absent is any hint of the obligation to the other that runs through Levinas’s work. Tolerating difference is, from the perspective of Levinas, but another way of not seeing the tears of the other. This is not to say that community is Levinas’s answer. Young and Levinas do not converge because Levinas’s ideal is neither community, nor diversity, nor tolerance, but substitution namely the existential condition of being called to the impossible task of putting myself in the place of the other, answering for everything the other has done, becoming responsible for everything the other needs. Now, substitution is not a type of moral choice as it is pre-conscious, stemming from the primordial experience of the other, which precedes the self ’s relationship with itself. ‘The relationship with the non-ego precedes any relationship of the ego with itself.’44 This does not mean that I am not a separate being, with my own ego. On the contrary, Levinas insists on my separateness. If I were not separate, I could not aspire to substitute myself for my other; I would already be the other, like Sandel’s selves who flow through one another.45 ‘Substitution’ defies the distinction between separate and fused. My other is already in me, closer to me than I am to myself, but the other is not me. The other is my saving grace, an alien presence that allows me to open myself to the world, a foreign body that wedges itself between me and my ego, and so allows me to escape my narcissistic soul by devoting myself to the other in me (l’autre dans le même).46 Levinasian ‘substitution’, I think, is best understood as a form of inverted individualism and inverted liberalism. If the other is already in me (substitution) but also infinitely distant from me (alterity) and since, as we saw earlier, the presence of the third which gives rise to the need for justice does not mitigate my infinite responsibility in my own eyes but in the eyes of others (thus preventing them from asking me to actually sacrifice myself ) then, politically, substitution implies a non-liberal justification of the key assumption of liberalism, the supreme value of the individual. If only the individual can see the tears of the other then the individual must be preserved at all costs; not for the sake of the individual but for the others.47 From the perspective of substitution, therefore, there is only one political

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question: how do I make my infinite obligation to the other social? That is, how do I distribute my infinite obligation to the other in a world of others? As equally as possible seems to be Levinas’s answer although, in his later work, he stresses the obligation to the neighbour, no longer the abstract other but a real person near me. This raises some difficult issues, including that of weighing my obligation to stranger and neighbour. Theoretically my obligation to each is infinite; practically that cannot be. How to parse the difference? Levinas will not answer. Doing so would require a universal ethics like Kant’s, or at least a universal formula. All Levinas will do is state that there is no solution, only a unique obligation to a multiplicity of others. There is no solution because Levinas’s entire project is to challenge principles, contracts and the like as instances of a totalising tendency, the tendency to reduce the individual to an instance or status. Instead of universal principles, justice is founded on the infinite responsibility of each for all the others. It is the task of politics, in conjunction with tradition, to ‘work out the details’. The last sentence puts it too simply. Custom, law and habit are the frames within which we act on our responsibilities. Without these frames, we could not act on our responsibilities because we could not act in a calculable, reasonable and predictable way. This is what Levinas means when he writes of ‘beyond the state in the state’. Levinas’s conservatism is real, and entirely practical. On the other hand, it is the whole point of the face that it is anarchic intrusion into the world, shattering all frames and forms. Think here of the word of the prophet. In The Symbolism of Evil, Paul Ricoeur writes of prophecy in terms of the tension between infinite demand and finite commandment. We think of the prophet as the one who utters a demand aimed at the sinful human heart. Consequently, it is a demand that can never be met. The result is to place God at an infinite distance from man, the One who accuses. But, that is not the whole story. For a long time, he points out, Biblical critics failed to recognise this rhythm of prophetism and legalism and in fact displayed an excessive contempt for legalism. This tension between the absolute, formless, demand and the finite law, which breaks the demand into crumbs, is essential. At the moment when ‘Moses is supposed to promulgate the moral and cultural charter . . . it is to the inner obedience of the heart that he appeals (Deuteronomy 6, 11, 29, 30).’48 Levinas is no lawgiver. Levinas is a prophet in precisely that sense explicated by Ricoeur, albeit one who adopts a series of increasingly abstract formulations: not only for the word of God but for the experience of God. An anthropomorphic God is transformed by Levinas into an abstract experience of excess so extreme that it shatters all my categories. The story about answering the doorbell is an attempt to characterise this experience: God as a shattering experience of otherness. Behind this experience, or rather shadowing this experience of the Other, is an encounter with Illeity (illéité), a neologism coined by Levinas, and formed on the Latin or French for he.

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Illeity is God, and God is the opposite of mere being.49 More than that we cannot say, even as we surround an ineffable He-ness with a thousand stories. One of these stories concerns the everlasting tension between Jerusalem and Athens. ‘Both the hierarchy [by which Levinas means law, state, and bureaucracy] taught by Athens and the abstract and slightly anarchical ethical individualism taught by Jerusalem are simultaneously necessary in order to suppress violence,’ says Levinas, referring not just to physical violence, but to every way of living that does not put the other first. But, while hierarchy and ethical individualism are both necessary, Levinas significantly concludes that in our era the ‘protest against hierarchy’ must take precedence.50 In our age, violence is more likely to be the result of the smoothly functioning system than its breakdown. Ethical revolution is today more important than building up the institutions of law and justice, even as there might come a day when this was not the case. The tension between prophecy and justice, the claims of the other and the claims of all the others, abides. There is no solution, no answer, just ‘permanent tension and ambiguity,’ as Bloechl puts it.51 Justice remains a dangerous business, as likely to subdue the particular as serve it. But what is the alternative? It seems too easy to conclude, as one commentator does, that for Levinas’s ‘philosophy serves justice by both thematising difference and reducing the thematised to difference’.52 To be sure, it is Levinas himself who says this, always a good source for a sympathetic critic.53 But that does not automatically make it right. Levinas downplays the radicalism of his own teaching, making it more symmetrical than it is, contributing to the formalism to which Caygill refers. Not symmetry but impossibility is the mark of Levinas’s political theory, in which philosophy serves justice by reminding us that its task is impossible – to treat each and every other as though he or she were my world. Levinas would teach us to live with this impossible task without telling us how. Young’s diverse city avoids the aporias of Levinas’s political theory, but only because it makes few demands but tolerance. Young’s ideal has been criticised for having no place for politics, that is, no account (and no place for an account) of what happens when one group faces off against another in competition for resources. By contrast, for all its strangeness, Levinas’s account has room for politics. Politics is important because politics is not just about the administration of things, but the rationalisation of justice – the calculation and weighing of infinite responsibility, no small matter. Levinas put it this way in a late interview: Ricoeur, in Le Monde, speaking of the recent English elections, expressed his sorrow that, in England, a majority of people, having what they need, vote as landlords, as no one is concerned about the poor. [This is] one of the dangers of democracy: the permanent exclusion of a minority that always exists.54

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This is not the teaching of an apolitical man, even if his conclusion is not merely political. On the contrary, in an implicit reference to the state of nature theorists, Levinas argues that the state exists for those who cannot fight for their own being, who are absent from the state.55 Derrida interprets this as meaning that the justice of the state is measured by how well it cares for the alien, the metic, the non-resident. However, Annabel Herzog seems closer to the spirit of Levinas (and Ricoeur) when she writes that Levinas is first of all thinking of the poor, the hungry, the naked, and the homeless. From this perspective, the distinction between citizen and non-citizen is blurred, and that comes closer to Levinas’s own thinking.56 Not citizen versus non-citizen, but person who can represent him or herself (his or her being) versus person who cannot. That is Levinas’s basic political distinction, one not lacking in subtlety. Here is the dilemma. The state should feed, clothe, and house the poor. For the state to care for the poor, the poor must be made subject to bureaucracy, rendered faceless, less than fully human. If the state does not do this, the poor may go hungry, naked, and homeless. There is no solution, only ‘a reversal of the order of things!’57 Somehow the state must become the place where individuals, one by one, become hostage to those in greatest need. About this ‘somehow’ Levinas neither elaborates nor offers examples. It is this ‘somehow’ state that I have called inverted liberalism. Levinas and his followers have used the terms utopia, surplus, and even ‘democracy to come’ to characterise this same state. Young’s essay is entirely compatible with political theory as it is currently practised, to say nothing of the lives of political theorists, which she invokes in her account of the pleasures of showing visiting friends around Boston or San Francisco or New York.58 Levinas, by contrast, threatens political theory. Diversity and tolerance for otherness, coupled with a political commitment to eliminating the permanent underclass, are good things, but they don’t rock the boat. Many citizens like diversity and otherness. It means they do not have to get too close. Dedicating oneself to the infinitely other, while imagining that politics is about organising our infinite responsibilities to others: that rocks the boat. These things might even sink the boat, if that boat is political theory. The lives of saints are no longer the province of political theory, it might be argued, and that is what Levinas is concerned with when he writes of lives of infinite responsibility for others. I do not agree, but that it is a serious objection measures the challenge Levinas poses to political theory. Indeed, it is not clear that political theory, as opposed to the ethical practice of politics, remains a distinct enterprise in Levinas’s account, though presumably each of us needs help in the rigorous weighing of our infinite responsibilities to others – not exactly the stuff of philosophy and public policy studies, though perhaps it should be. The term ‘each of us’ may surprise, as though the task of political theory were to help each of us, one by one, to be more responsible for others. This comes closer to the mark for Levinas. Though Levinas is no liberal, aspects of his political theory come

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surprisingly close, as I have suggested. The reasoning, though, is entirely different. Against ‘liberalism’, Levinas opposes none of the usual categories, but ‘secrecy’, a surprising choice. With the term ‘secrecy’ he is not talking about privacy or isolation, but the ‘secrecy, which holds to the responsibility for the other’.59 Responsibility is an intimate relationship. While it maybe rationalised, even bureaucratised, Levinas suspects that in the end it is mass society, in all its guises, liberal and totalitarian, that is the great enemy of responsibility, for mass society compromises the privacy of the soul. Were Young to write about how the diverse city protected the soul (and it might), her work might come closer to that of Levinas. But soul has not been a political category for some time now. We are not necessarily better for it. Would liberal democracy change its institutional structure, or only its meaning, under Levinas’s political theory? Evidently only its meaning. If the individual is valuable because only the individual can see the tears of the other, then everything changes, and everything remains the same as far as liberalism is concerned. It would be as if one scooped out the old liberal structure, filling it up with new substance, the experience of being hostage, even as the structure continued to look the same from the outside. From the outside liberal democracy looks the same because its goal remains the same: to protect the autonomous individual, which includes allowing him or her some say in how he or she is governed. What has changed is the meaning and purpose of individual existence: not to serve or express oneself, but to serve others. For this the individual still needs to be fostered and protected much as before, albeit for different reasons – so that he or she can dedicate him or herself to the tears of the other. Wittgenstein said that philosophy leaves everything as it was. Levinas would leave the institutions of liberal individualism much as they are, so that everything else might change.

Notes 1 Levinas, Totality and Infinity: An Essay on Exteriority, trans. A Lingis (Pittsburgh: Duquesne University Press, 1969), p 300. 2 Jacques Derrida, ‘Violence and Metaphysics’, in Writing and Difference, trans. A Bass (Chicago: University of Chicago Press, 1978). Jacques Derrida, Adieu to Emmanuel Levinas, trans. P-A Brault and M Naas (Stanford: Stanford University Press, 1999). The other slightly less-well-known piece by Derrida referring to Levinas is ‘En ce moment même dans cet ouvrage me voici’, in Texts pour Emmanuel Levinas, (ed.) F. Laruelle (Paris: Jean-Michel Place, 1980), pp 21–60. 3 Iris Marion Young, ‘The Ideal of Community and the Politics of Difference’, in Feminism/Postmodernism, (ed.) L J Nicholson (New York and London: Routledge, 1990), pp 300–23. I refer at the same time to Young’s book, Justice and the Politics of Difference (Princeton: Princeton University Press, 1990). Ed Wingenbach puts them on the same page in ‘Refusing the Temptation of Innocence: Levinasian Ethics as Political Theory’, in Strategies, vol 12 (no 2, 1999): 219–38, p 237. 4 Levinas, Otherwise than Being: Or Beyond Essence, trans. Alphonso Lingis (Pittsburgh: Duquesne University Press, 1998), p 159. ‘L’État égalitaire et juste’ is

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how Levinas puts it in the French original, Autrement qu’être ou au-delà de l’essence (Paris: Livre de Poche, 1990), p 248. Levinas, Totality and Infinity, pp 21–30. Adriaan Peperzak, To the Other: An Introduction to the Philosophy of Emmanuel Levinas (West Lafayette, Indiana: Purdue University Press, 1993), p 19. I am quoting Peperzak, not Levinas, but their views here (and generally) are identical. Levinas, ‘Cain-like coldness’, in Of God Who Comes to Mind, trans. Bettina Bergo (Stanford, CA: Stanford University Press, 1998), p 71. ‘Transfer of sentiments’, in ‘Substitution’, in Basic Philosophical Writings, (ed.) Adriaan Peperzak, Simon Critchley, and Robert Bernasconi, 79–96 (Bloomington and Indianapolis: Indiana University Press, 1996), p 91. Levinas cites Hobbes as an example of this way of thinking in the note (36) to this passage. Levinas, ‘Beyond the State in the State,’, in New Talmudic Readings, (ed.) R Cohen (Pittsburgh: Duquesne University Press, 1999), pp 79–107. A couple of Levinas’s articles on Israel can be found in a collection of mostly religious readings by Levinas titled Beyond the Verse: Talmudic Readings and Lectures, trans. G. Mole (London: Athlone Press, 1994). C B Macpherson, The Political Theory of Possessive Individualism: Hobbes to Locke (Oxford: Oxford University Press, 1962), p 3. Though Levinas is a critic of humanism, it is on the grounds that humanism has not been humanistic enough. Instead of abandoning humanism we should create a new humanism, a humanism of the other human, a humanism that puts the other person first. See his ‘Transcendence and Height’, in A Peperzak et al. (eds) Basic Philosophical Writings (Bloomington and Indianapolis: Indiana University Press, 1996), pp 11–31, p 14. See too Levinas’s Humanisme de l’autre homme (Montpellier: Fata Morgana, 1976), pp 11–16. On the hellish quality of even civilised human relations see Levinas, Otherwise than Being, trans. Alphonso Lingis (Pittsburgh: Duquesne University Press, 1998), p 4. Derrida, Altérités (Osiris: Paris, 1986), p 74. Derrida elaborates, saying that while of course he expresses himself differently from Levinas, what he shares is the double tradition of phenomenology and Judaism. Simon Critchley has a fine discussion of their apparent similarity in The Ethics of Deconstruction: Derrida and Levinas, 2nd edn (West Lafayette, Indiana: Purdue University Press, 1999), pp 9–10, and passim. This is my version of Levinas’s example in ‘Enigma and Phenomenon’, in Basic Philosophical Writings, pp 65–78. Levinas is fond of images of dwellings and doors, as Derrida points out in ‘Welcome,’ in Adieu to Emmanuel Levinas, 15–123, pp 26–7. The story about answering the doorbell, as well as my comparison between Levinas and the Frankfurt School, are drawn from my book, Levinas, the Frankfurt School and Psychoanalysis (Wesleyan, CT and London: Wesleyan University Press and Sage, 2002). Jean-Jacques Rousseau, ‘Discourse on the Origin and Foundations of Inequality among Men’ (Second Discourse), in The First and Second Discourses, translated by Roger Masters and Judith Masters, 77–228 (New York: St. Martin’s Press, 1964), pp 150–1. Levinas, Totality and Infinity, p 134. Sheldon Wolin, Politics and Vision (Boston: Little, Brown and Co., 1960), p 258. Levinas, Otherwise than Being, p 81. Levinas uses the term narcissism frequently and casually, to capture humanity’s utter self-centredness in the state of nature. I use it in the same casual way here. Levinas, Totality and Infinity, pp 172–3; quoted in Derrida, ‘Welcome’, in Adieu, p 96. The question Derrida raises for Levinas in this essay (Derrida has always

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raised the hardest questions for Levinas) is whether in the act of opening the door and welcoming the other I have appropriated the space on which the other stands. To receive another is to say ‘you are welcome in my place’. But what makes it mine to begin with? Levinas, ‘Substitution’, in Basic Philosophical Writings, 79–96, p 91. Levinas, Totality and Infinity, pp 302–4. Levinas, Totality and Infinity, p 43. Levinas, ‘Meaning and Sense’, in Basic Philosophical Writings, 33–64, p 54. Levinas, Totality and Infinity, p 80. Levinas, ‘Substitution’, p 90. Levinas, Otherwise than Being, p 69. Levinas, Totality and Infinity, p 25. Levinas, Totality and Infinity, p 71. The statement is italicised in the original. Levinas, ‘Transcendence and Height’, in Basic Philosophical Writings, 11–31, p 23. Levinas, Otherwise than Being, p 157. Levinas, ‘Peace and Proximity,’ in Basic Philosophical Writings, 161–9, p 169. Levinas, ‘Peace and Proximity’, p 168. Levinas, Totality and Infinity, p 280. See too Otherwise than Being, pp 16, 160. Levinas, Otherwise than Being, p 158. Simon Critchley, The Ethics of Deconstruction: Derrida and Levinas, pp 46, 231. Ed Wingenbach, ‘Refusing the Temptation of Innocence: Levinasian Ethics’, pp 226–7. Jeffrey Bloechl, ‘Ethics as First Philosophy and Religion’, in The Face of the Other and The Trace of God: Essays on the Philosophy of Emmanuel Levinas, (ed.) Jeffrey Bloechl, 130–51 (New York: Fordham University Press), p 143. Bloechl made a number of helpful comments on an earlier version of my manuscript. I think he would still disagree with my conclusion. Levinas, Otherwise than Being, p 160. Colin Davis, Levinas: An Introduction (Notre Dame, Indiana: University of Notre Dame Press, 1996), p 144. Howard Caygill, ‘Levinas’s Political Judgment: The Esprit Articles’, in Radical Philosophy, no. 104 (November/December, 2000): 6–15, p 7. Translations from the Esprit articles are Caygill’s unless otherwise noted. Levinas, ‘Reflections on the Philosophy of Hitlerism’, in Critical Inquiry 17 (Autumn, 1990): pp 64–71, translated by Seán Hand. Levinas, ‘Sur l’esprit de Genève’, in Les imprévus de l’histoire (Montpellier: Fata Morgana, 1994), 159–65, p 164. Theodor Adorno, Negative Dialectics, trans. E. B. Ashton (New York: The Seabury Press, 1973), p 43. Martin Jay, Adorno (Cambridge: Harvard University Press, 1984), p 68. Habermas, Theorie des kommunikativen Handelns (Frankfurt a.M.: Suhrkamp, 1981), vol. 1, p 512. Young, ‘The Ideal of Community and the Politics of Difference’, p 30. Young’s criticism of communitarianism, involving an encounter with Seyla Benhabib’s standpoint of the concrete other, and Carol Gould’s internal relationships, is thoughtful. The difficulty with Young’s critique is that she writes as if communitarianism were primarily a metaphysics, not a practice. If concepts such as self and other are opposites, then their reality must be too, or so Young assumes. Peperzak, To the Other, p 31. Levinas, Totality and Infinity, pp 278–80. Young, ‘The Ideal of Community and the Politics of Difference’, p 313. Young, Justice and the Politics of Difference, p 163.

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44 Levinas, Otherwise than Being, p 118. 45 Michael Sandel, Liberalism and the Limits of Justice (Cambridge: Cambridge University Press, 1982). 46 Levinas, Otherwise than Being, p 111. 47 To be sure, Levinas writes about ‘a freedom in fraternity . . . through which the rights of man manifest themselves concretely to consciousness as the right of the other, for which I am answerable’, in Outside the Subject, trans. Michael B. Smith (London: the Athlone Press, 1993), p 125. But the fraternity about which Levinas writes has little to do with the French revolutionary fraternity of ‘liberty, equality, and fraternity’. Not just because Levinas transforms fraternity from comradeship to solidarity with the victim, but because substitution is not fraternity, but a much more distant nearness. ‘A relation without relation’, Levinas calls it, and that seems about right. 48 Paul Ricoeur, The Symbolism of Evil, trans. Emerson Buchanan (Boston: Beacon Press, 1967), pp 54–62, 59–61. 49 One way to think about Illeity is in terms of its relationship to the il y a. Il y a means ‘there is’, and for Levinas refers not just to an experience of being, but to an experience of being trapped in being, with no way out. See Levinas, ‘There is: Existence Without Existents’, in The Levinas Reader, (ed.) Seán Hand (Oxford: Blackwell Publishers, 1989), pp 29–36. It is a leading theme of Levinas. Commenting on the linguistic connection between Illeity and the il y a, Edith Wyschogrod asks simply, ‘might one then infer that the il y a mimes the transcendence it occludes?’ in Emmanuel Levinas: The Problem of Ethical Metaphysics, 2nd edn (New York: Fordham University Press, 2000), p xiii. 50 Levinas, ‘Transcendence and Height’, in Basic Philosophical Writings, p 24, his emphasis. 51 Bloechl, ‘Ethics as First Philosophy and Religion’, p 144. 52 Critchley, The Ethics of Deconstruction: Derrida and Levinas, p 235. 53 Levinas, Otherwise than Being, p 165. 54 Levinas, ‘Dialogue on Thinking-of-the-Other’, in Entre nous: On Thinking-ofthe-Other, trans. Michael B Smith and Barbara Harshav (New York: Columbia University Press, 1998), 201–6, p 205. 55 Levinas, At the Time of Nations, trans. M B Smith (Bloomington, Indiana: Indiana University Press, 1994), p 61, 56 Derrida, ‘Welcome’, in Adieu, pp 71–4. Annabel Herzog, ‘Is Liberalism “All We Need”? Levinas’s Politics of Surplus’, in Political Theory, vol. 30, no. 2 (2002): 204–27, pp 218–19. 57 Levinas, Time of Nations, p 61. 58 Young, ‘The Ideal of Community and the Politics of Difference’, p 317. 59 Levinas, Ethics and Infinity: Conversations with Philippe Nemo, trans. Richard Cohen (Pittsburgh: Duquesne University Press, 1985), p 79–81.

Chapter 7

Politics and transcendence 1 Brian Schroeder

A transcendence that is therefore not the simple failure of immanence, but the irreducible excellence of the social in its proximity: peace itself. Emmanuel Levinas2

Introduction The question of politics in Levinas’s philosophy is complicated by the term ‘transcendence’, which he uses to designate, among other things, the asymmetrical character of the ethical or ‘metaphysical’ relationship. Politics, and by extension law, necessitate an operative sense of reciprocity in order to be effective in any democratically based framework. Levinas’s notion of ethics, however, is predicated on the non-reciprocity of the ethical demand that the Other places on the self, a non-reciprocity that expresses itself most forcefully in terms of substitution, the ‘one-for-the-Other’. The heart of Levinas’s thinking can be summarised perhaps by his dictum ‘ethics is first philosophy’,3 thus binding his premise of the primacy of ethics to questions concerning the status of origin and creation, and hence of alterity and difference, concepts long linked historically to that of transcendence. Levinas’s radical rethinking of the meaning of transcendence as principally ethical invites a plethora of difficulties, especially in this time of late modern or postmodern configuration, and constitutes perhaps the most significant obstacle toward developing a political reading or, better, application of his philosophy. In considering the idea of an ethical politics, a relation of terms that for Levinas is fundamentally ‘allergic’ in character, I will address the question of transcendence by relating it to the difference between the concepts of ‘politics’ (la politique) and ‘the political’ (le politique) delineated in the philosophy of Philippe Lacoue-Labarthe and Jean-Luc Nancy, in order to conjoin a thinking of ethical transcendence with the latter’s reflections on ‘political transcendence’.4 The dimension of transcendence, claim Lacoue-Labarthe and Nancy, is precisely what is lacking in present conceptions and expressions of politics and what needs to be recouped in considering the meaning of the

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political. Reading Levinas, Lacoue-Labarthe and Nancy alongside one another opens the possibility for formulating an ethical conception of politics that both preserves the asymmetrical ethical signification of absolute alterity while widening the domain for the reciprocity of intersubjective exchange in the sociopolitical arena. It is a matter for all three of thinking beyond the traditional opposition of immanence and transcendence, not in the sense of positing a trajectory toward a transcendent being or exteriority, but rather in terms of advancing a movement toward the standpoint of being radically exposed, wherein the common ‘ground’ of ‘singularity’ is revealed (to borrow and modify a term frequently employed by Levinas) as the proper dimension of an ethical approach to political being.

1. Anarchy, creation, interruption Far more than that of Levinas, the philosophy of Lacoue-Labarthe and Nancy takes up a decidedly political orientation, and for them this orientation, following Aristotle’s lead, is directly connected to the question of ‘first philosophy’. Aristotle construes praxis primarily as the relation between politics and ethics and situates praxis as the foundation of practical knowledge (phronêsis); but he also designates theôria the highest form of praxis, and so establishes in thinking the ontological priority of first philosophy (protê philosophia). Thus the question becomes the status of the philosophical, that which concerns both the beginning and the end of metaphysics. The matter at hand is ‘gaining access to the origin’,5 writes Nancy, which is simultaneously a refusal of access to the origin as such, since the origin – concealed in the plurality of being – is always a matter of being other than what can be conceived as either being or the other. ‘Finitude is the origin, that is, the infinity of origins. “Origin” does not signify that from which the world comes, but rather the coming of each presence of the world, each time singular.’6 In other words, the world is the actual other, not some other beyond or outside the world. Nancy develops this thought: ‘If “creation” is indeed this singular exposition of being, then its real name is existence. Existence is creation, our creation; it is the beginning and end that we are. This is the thought that is the most necessary for us to think. If we do not succeed in thinking it, then we will never gain access to who we are, we who are no more than us in a world, which is itself no more than the world – but we who have reached this point precisely because we have thought logos (the self-presentation of presence) as creation (as singular coming). This thinking is in no way anthropocentric; it does not put humanity at the centre of “creation”; on the contrary, it cuts across [traverse] humanity in the excess of the appearing that appears on the scale of the totality of being, but which also appears

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as that excess [démesure] which is impossible to totalise. It is being’s infinite original singularity.’7 What is significant in this passage is Nancy’s attempt to rethink the meaning of creation, not as ex nihilo, the fiat of a divine other, or as the unfolding of Being’s essence, but in a manner perhaps most reminiscent of Nietzsche’s will to power, which both possesses life and is possessed by it. Here is a thinking of the meaning of metaphysics that goes beyond a Heideggerian approach and yet differs from the Levinasian formulation that defines metaphysics principally in terms of desire for the absolutely other: ‘Rather, [metaphysics] is wide open, opened by its very completion and by the power that makes the logos confront itself by its end and limit.’8 In this confrontation, philosophy exposes itself to the very exposure that is singularity, the meaning of which, for Nancy, is ‘in excess of signification’, but nevertheless always in the present. ‘This is why,’ he writes, ‘we do not have to signify a “future”, but, rather, have to make ourselves available for the thought of our time – and, to this extent, we are not going toward a future whose meaning we would project but are instead making ourselves present to what never fails to happen, to what is always to come and does not come from signification. This task is always a philosophical one.’9 Despite their not inconsiderable differences, Levinas and Nancy converge on the question of first philosophy, construed as both the origin of being and of ethics. Levinas’s hermeneutic of the idea of infinity and the absolutely other which this non-totalisable idea (not concept) signifies does not preclude the ‘excess’ that Nancy identifies as appearing in the totality of being, but rather preserves the possibility that the Infinite ‘overflows’ (déborde)10 the totality. What is fundamental and crucial to both is the meaning of a non-totalisable concept of creation or origin. The question that presents itself here is the possibility of developing a viable political ontology that retains a sense of the universal without lapsing into a totalising framework. Despite his reflections on God as the absolutely other, which on the surface might lead one to think that he has not fully rejected onto-theology, through the thesis of the a-theistic will11 it is possible for Levinas to think creation as our own, even to the extent of being realised as ‘an ipseity, in the fundamental phenomenon of enjoyment’. In fact, he continues, ‘One can call atheism this separation so complete that the separated being maintains itself in existence all by itself, without participating in the Being from which it is separated.’12 Moreover, the concept of metaphysical ‘anarchy’,13 which attends this atheism, does not follow from onto-theology, which is wed to the concept of the ‘return’,14 rejected by both Levinas and Nancy as the source of the signification of being. Anarchy results in an ‘interruption’15 of essence or being preventing the closure of the said, the ultimate end of metaphysics, of philosophy, and consequently of politics having the final say. This notion of interruption is crucial for preventing what Levinas identifies as the totalisation of being, or what Lacoue-Labarthe and Nancy term ‘immanentism’.

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2. Ground, community, exposure Much recent French philosophy is denoted by an emphasis on the concept of difference, a difference that is often construed as the very antithesis of universality itself. Levinas interprets universality as the ‘way of the same’16 an essentially violent way of thinking and being insofar as it subsumes the other under the category of the same. This construal and subsequent critique of universality is predicated on a perspective that contests both the predominant logic of a traditional Either–Or and the more radical Both–And of idealist dialectics. But if both of these logics are inadequate, then what other logical possibility is there other than one that advocates an essential and necessary relation between the concepts of difference, otherness, and universality that is neither purely oppositional nor dialectical in a positive, idealist sense? Such ‘logic’ would be ‘inoperative’. Nancy’s concept of ‘the inoperative community’ (la communauté désoeuvrée), as opposed to traditional (or operative) interpretations of political organisation based on a concept of universality or identity, transcendent or otherwise, serves as a possible new ground for rethinking the meaning of the political. This is a ‘ground’, however, that refuses any traditional definition of ground (Grund ) and resists the totalising impetus of such classically construed concepts as substance and transcendence. ‘It is a groundless “ground”, less in the sense that it opens up the gaping chasm of an abyss than that it is made up only of the network, the interweaving, and the sharing of singularities: Ungrund rather than Abgrund, but no less vertiginous.’17 This revalued ground of the political, writes Nancy: ‘does not consist in the transcendence (nor in the transcendental) of a being supposedly immanent to community. It consists on the contrary in the immanence of “transcendence” of finite existence as such, which is to say, of its “exposition”. Exposition, precisely, is not a “being” that one can “suppose” (like a substance) to be in community. Community is presuppositionless: this is why it is haunted by such ambiguous ideas as foundation and sovereignty, which are at once ideas of what would be completely suppositionless and ideas of what would always be presupposed. But community cannot be presupposed. It is only exposed.’18 Paralleling Levinas’s notion of the exposure of the Other and linking it with the concept of interruption,19 which alone makes being-with, or ‘coappearing’ (comparution)20 possible, Nancy argues that community does not comprise individuals conforming to an already realised idea of community, but is rather composed of singularity, which is necessarily and always understood only as a plural.21 Simply stated, ‘We are others.’22 Though seeming to border here on an equation that Levinas steadfastly refuses, namely, the Hegelian notion of the particular I as a universal We, substance as subject,

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Nancy makes it clear that this is decidedly not the case: the radical exposure of singularity that is also the constitution of singularity means there is no prior essence or signification to being; what is common in being (and there is nothing in being that is not common) is the ‘sharing out’ (partage)23 that allows the self and the other to ‘co-appear’ (comparaît)24 and therein become social. It is here that Levinas and Nancy are drawn both into close proximity and yet stand apart in their thinking, as befits singularities. This is seen, for example, in the concept of ipseity to which both thinkers take recourse in describing the independence of singular being, a concept that Derrida reminds us not to confuse in the philosophy of Levinas (and one could say also in Nancy) with ‘identity’.25 Though signifying principally for Levinas the ‘glory’ (gloire) of separated creation, Nancy understands ipseity as ‘itself constituted by and as sharing,’26 thereby arguably not so much opposing the former’s construal of radical alterity as extending its reach into the domain of intersubjective or rather intersingular being. This is a move that Levinas would not in principal contest, for as he writes, in a statement that cannot be overemphasised for interpreting his thinking as a whole: ‘The absolutely other is the Other’ (L’absolument autre, c’est l’autrui).27 Yet while for Levinas being, or the totality, is not meaningful in itself, there is nevertheless a ‘pre-originary’ ethical signification, the trace of what is ‘otherwise than being’ that interrupts and disturbs being, producing the disjunction or separation between the same and the other that preserves the asymmetrical ‘height’ (hauteur)28 of the other and founds the freedom of the self. And though this pre-original alterity constitutes the source of ethics, it also produces the allergy with politics. The problem that haunts Levinas’s thinking is how to incorporate this sense of the ethical into political existence in a way that truly transforms politics without diminishing the power of the ethical demand placed on the self by the Other. The crux of the matter is whether the meaning of political transcendence one finds in the thoughts of Nancy and Lacoue-Labarthe is capable of effecting a genuine transformation in community without diminishing the absolute character of Levinas’s ethical transcendence. Any viable discussion of community necessitates a consideration of the origin and function of politics. Though fundamentally different, particularly from a Levinasian perspective, politics and ethics are, and must remain, inseparable if a genuine sense of community is to flourish. To absolutely oppose politics and ethics, to posit freedom as wholly superordinate to justice, is to deny the pre-originary, anarchic signification of the face to face relationship, the groundless ground of the possibility of all discourse. At issue is how to resist or overcome the totalising tendencies of ontology and conventional politics. Nancy offers a provocative solution to this problem, and one that is framed in the language used by Levinas, whom Nancy invokes several times in The Inoperative Community:29

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‘Only a being-in-common can make possible a being-separated. “To be exposed” means being “posed” in exteriority, having to do with an outside in the very intimacy of an inside. Or again: having access to what is proper to existence, and therefore, of course, to the proper of one’s own existence, only through an “expropriation” whose exemplary reality as that of “my” face always exposed to others, always turned toward an other and faced by him or her, never facing myself.’30 One finds expressed here, on the one hand, a conception of community that not only allows for difference but is also predicated on it, a conception of the inoperative, or political, community that neither opposes universality and difference nor collapses them into an ontologically comprehensible unity. On the other hand, though, such a community inverts Levinas’s stance on separated being as that which makes being-in-common possible, an inversion that subsequently radicalises the idea of transcendence as a fully immanent transcendence. Yet this inversion is neither a simple negation nor is it anything resembling a Hegelian Aufhebung, in the sense of transcending or sublating such separation while preserving it as singularity. Nancy’s notion of transcendence parallels Levinas’s, rather, insofar as it is also primarily a movement toward the other, though not compelled by a metaphysical desire (either désir or Begierde). And while for Nancy ‘community is the community of others,’31 transcendence is radical exposure to the limit of existence, which is finitude itself. In this shared space of finite being singularities are able to form community though their mutual exposure. What Levinas offers provisionally to Nancy’s political transcendence is the sense of absolute ethical responsibility that accompanies the nudity and defenselessness of the Other – the other that, for Nancy, we all, as singularities, are.

3. Difference, identity, neither–nor The question is how to bring about a radical shift in thinking so that we understand ourselves in terms of singularity and not as individuals and citizens defined and organised by either a transcendent or a transcendental concept of common identity. What is needed then is the popular recovery of a genuinely political sensibility, not merely a more active involvement in present politics. Correlatively, becoming open to the political necessitates a like openness to the philosophical and not merely to philosophy.32 The distinction between politics and the political, philosophy and the philosophical, and ethics and the ethical corresponds roughly to the Heideggerian distinction between the ontic and the ontological. The difference between these terms serves as starting point for the present analysis, though another conception of difference, a difference between the ontological difference articulated by Heidegger and the metaphysical difference found in the thought of Levinas, is being pursued. This concept of difference is found in the work

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of Nancy and Lacoue-Labarthe, which is significantly influenced by Heidegger and to a lesser degree by Levinas, wherein both the ethical neutrality of the Heideggerian difference and the anthropocentrism of the Levinasian difference are arguably overcome or at least avoided. Nancy and LacoueLabarthe offer a third way to construe difference that is decidedly oriented toward the political but without relinquishing the ethical significance of transcendence. Indeed, it is the very recovery and retention of transcendence, on their account, that precisely enables the thinking of the political. In Being Singular Plural, Nancy directly engages the philosophy of Heidegger and, to a lesser extent, those of Hegel and Marx in rethinking transcendence and Being as being-with (Mitsein). Though Levinas is absent in most of Nancy’s work, including his collaborative endeavours with Lacoue-Labarthe, this is not because Levinas is, as one might initially suspect to be the case, a philosopher of ‘the Other’, with the capitalized ‘O’ that Nancy refuses in Being Singular Plural. Despite the appearance of certain Levinasian terms that pervade the said work (for example, ipseity, the il y a, proximity, the instant, the trace, the face, transcendence), Levinas is mentioned only once specifically in the text – but in a very telling manner. Declaring, ‘In sum, being-with is Being’s ownmost problem. The task is to know why and how this is so,’33 Nancy appends a note: ‘In a sense, Levinas testifies to the problematic in an exemplary manner. But what he understands as “otherwise than being” is a matter of understanding “the ownmost of Being”, exactly because it is a matter of thinking being-with rather than the opposition between the other and Being.’34 Nancy is obviously aware of the enormous difficulties that are posed by the thesis of absolute alterity, a position that on most interpretations would seem to be the very antithesis of his complete emphasis on Being. Yet both Nancy and Levinas refuse the logics of Both–And and Either–Or, opting instead for a standpoint of Neither–Nor that exposes the groundless concept of anarchy attending the thought of creation, albeit in significantly different though remarkably similar ways. In other words, in anarchy one finds the possible basis for a third standpoint that accounts for the paradoxical event of singularity, a radical otherness the meaning of which is found only in the sameness of Being, without collapsing that alterity and sameness into a knowable and hence manipulable totality. At hand is the task of thinking a new ‘ground’ for a conception of universal praxis that will in turn inform the development of a future politics. This call for a shift in the modus operandi of the current world dominant political regime, the capitalist-techno-military machine, necessitates a concurrent alteration in thinking. This latter shift is what is meant by, to employ the Heideggerian distinction evoked earlier, the ontological concepts of the philosophical, political, and ethical as opposed to the ontic events of philosophy, politics, and ethics.

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4. Paradox, proximity, politics An inoperative community signals a reconceptualisation of sociopolitical arrangement as a community of difference, an ‘unworking’ (désoeuvrement)35 that rejects any ground that is either ontologically substantial or totally immanent – in other words, that refuses any sense of transcendence. Can a conception of inoperative community predicated on the primacy of the notion of difference, however, actually be genuinely communal? Is it is possible to realise an effective understanding of transcendence that is both ethical and political and yet avoid the pitfalls of a totalising universality? As used here, the term ‘universality’ is synonymous with the model of an operative or conventional politics which invariably manifests itself, according to Lacoue-Labarthe and Nancy, as totally immanent and lacking in transcendence. Philosophically, the operative interpretation of politics is perhaps most strongly exhibited in the absolute idealism of Hegelian thinking that subordinates all difference (for example, religious, cultural, political) to the achievement of the homogeneous State. ‘Idealism completely carried out reduces all ethics to politics,’ writes Levinas, wherein ‘language loses all social significance; interlocutors renounce their unicity not in desiring one another but in desiring the universal.’36 The idealist desire for universality signifies not transcendence but a lack or need (besoin) of commonality of individual existents, and as such ultimately refuses a community of difference which does signifiy transcendence, as it denotes singularity, which is always the plurality of singularities. It is precisely the respect for and maintenance of such plurality that constitutes the essence of the ethical relation, for Levinas, since justice enters the world only with the introduction of ‘the third’ (le tiers). On this account, the plurality of singularities is alterity itself and the metaphysical One the social multiple. Levinas opens his first major work, Totality and Infinity, with a critique of the ontological foundation of political being and the violence inherent therein, explicating the disjunction between politics and ethics and developing a theory of intersubjectivity predicated upon this difference. In his second major work, Otherwise than Being or Beyond Essence, he turns, however, from ethics to politics (or, better, in keeping with the line of thinking drawn from Lacoue-Labarthe and Nancy, from the ethical to the political) in an effort to concretise the more abstract account of the face to face relation proffered in his earlier writing. This is a significant move as it indicates that ethics is not an unattainable transcendental condition, rendered so by the absolute obligation imposed on the self by the Other. Rather, ethics is now understood as the demand placed on politics to account for itself and its totalising tendencies by unceasingly commanding itself to question its own freedom for the sake of justice toward the Other. Thus, ethics is neither an end nor a beginning in Levinas, but instead, in a move that haunts his work repeatedly, an echo of Hegelian mediation. Derrida observed this

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aspect in Levinas shortly after the French publication of Totality and Infinity in 1964 and Otherwise than Being (1974). The similarity, however, is only in content and not in form, for this semblance of mediation lacks the positivity of an absolute dialectical framework and is contingent upon the unpredictable response of the self to the Other, and vice versa, and is, therefore, not bound to an objective determining logic. There is also the dimension of paradox, recognised by both Levinas and Nancy that unravels the logic of speculative dialectics. Despite the element of surprise that attends alterity and perpetually disrupts the self ’s attempt to comprehend and encapsulate the other as the same, ‘the other is thinkable, and must be thought, beginning from that moment when the self appears and appears to itself as a “self” ’, maintains Nancy. ‘This is really not much more than a transcription of Hegel . . . And yet, the logic of this constitution is paradoxical, since it involves simultaneously the opening of the self to the other and its closure . . . A dialectic of the same and the other, of the same in the other, of the same as other, undoes this aporia, but this undoing comes at a price, the price of the dialectic in general.’37 This is an important passage to bear in mind, particularly with respect to Levinas, who emphasises that the absolutely other cannot be thought, and it is precisely this inability that imbues the Other with ethical significance. The relationship with the other, however, can and must be thought, and moreover acted on, if the ethical relation is to be concretised, that is, taken up as the infinite responsibility of the self for the Other: the one-for-the-Other. There is another paradox here but one that also undoes the dialectic, and corroborates the nonrational ‘logic’ of the singular plural and the plural singular: that which Levinas identifies as the enigma of the ‘other in the same’, wherein the concept of mediation is replaced, or disposed, by that of proximity. And Nancy locates still another paradoxical aspect to the phenomenon of proximity, or what he terms the ‘nearby,’ and the logic of the with: ‘the “nearby” of the with, the simultaneity of distance and close contact, the most proper constitution of the cum-, exposes itself as indeterminateness and as a problem. According to this logic, there is no measure that is proper to the with, and the other holds it there, within the dialectic of the incommensurable and common intimacy, or within an alternative to it. In an extreme paradox, the other turns out to be the other of the with.’38 Thus, on Nancy’s reading, the other to whom one is infinitely responsible for is not only the Other whom one faces but also the brute facticity of one’s absolute finite exposure; in other words, as Levinas emphatically iterates, being responsible for the Other is inseparable from being responsible for oneself. In short, Levinas reads the history of philosophy as being largely the promotion of the notion of freedom at the expense of the concept of

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justice – the calling into question by the self, under the accusation of the Other, of the self ’s own freedom, in response to the passive ethical demand imposed by the Other through the face-to-face encounter in which the satisfaction of the purely autonomous life is perpetually disturbed, interrupted, by the presence of heteronomy. If one can speak of a ‘ground’ of community in Levinas, this would be it: the condition of being before others, the infinite sense of responsibility and obligation that the self encounters in its relation with the Other. Whereas Lacoue-Labarthe and Nancy appear to abandon the concreteness of politics (la politique) in favour of the seeming abstraction of the political (le politique), Levinas (who, in turn, is susceptible to the criticism that his account of the face is also abstract) offers a possible alternative for politically realising ethical transcendence. Though often naively construed both by his critics and sympathetic readers as being decidedly antipolitical or at least apolitical, Levinas offers a way out of the aporia presented by Lacoue-Labarthe and Nancy that seems to preclude the possibility of a return to politics as an invariable return to the immanentism of totalitarianism. Levinas contends that all politics originates as ethics. In other words, the immanent totality of political being occurs in the space left open by the originary and continual interruption of the ethical transcendence of the Other. Politics is not the antithesis of ethics, as Totality and Infinity might seem to suggest, but rather the concrete space perpetually opened by the irreducible, irrecuperable difference of alterity. The move from ethics to politics is a move from the dyadic face-to-face encounter to the plurality signified by the absent presence of the third, which is brought into play in the double movement of the intersubjective relation. This metaphysical doubling simultaneously signifies the nonreciprocal asymmetry of the ethical relation and the reciprocity requisite for the working of social justice, wherein the measure of equality, expressed not in the language of responsibility and obligation but in that of rights, is determined. Levinas is arguably the needed antidote or corrective to the dilemma posed by Lacoue-Labarthe and Nancy. Ethics is meaningless unless it is concretised within historical experience. On the scale of realpolitik, ethics is often reduced to politics, expressed generally as the will of the nation-state, the very sociopolitical form that lends itself most readily to totalitarian tyranny. If defenders of ontological totality, however, can argue that totality and totalitarianism are not necessarily commensurate, then it is equally the case that metaphysical anarchy is not commensurate with social and political anarchy. Unfortunately, Levinas does not provide his readers with an adequate political philosophy; indeed, a troubling aspect of his philosophy is the lack of a tangible programme in this area, or even the bare outline of one. Yet even if he does not supply a political theory, Levinas does offer a revitalised notion of transcendence that aims to concretise the political relation. And if a Levinasian ethical politics must disavow itself of a conceptually totalising ground, then it must commence

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with alterity as the starting point. But what would the face or scope of such a new politics be?

5. Singularity, sharing, political transcendence Nancy draws a critical distinction between ‘being-in-common’ and ‘commonbeing’.39 Being-in-common is correlative to the ‘emergence’ of singularities as opposed to the individualism characteristic of a common-being. Politically, this necessitates not only a rejection of communitarian and communist ideals, but also of the neoliberal individualist values of capitalist culture. All three agendas promote economic productive practices that reveal an ultimately immanentist predilection, writes Nancy, and which are detrimental to or even preclude the possibility of realising a genuinely inoperative community. While the movement of Western thinking has led to an increasing development of the concept of individualism, it has lacked an effective understanding of singularity, which differs from individuation in that it does not emerge from any rationally known ground or original unity. Emerging together from an anarchic origin, singularities are finite beings that co-appear in a sharedout space of ‘originary sociality’. ‘Community means, consequently, that there is no singular being without a singular being, and that there is, therefore, what might be called, in a rather inappropriate idiom, an originary or ontological “sociality” that in its principle extends far beyond the simple theme of man as a social being (the zôon politikon is secondary to this community).’40 In other words, singularities (not subjects) are conjoined by a common ‘experience’41 of community, though not because being communal, that is, having a common-being, is intrinsic to their identity as, for example, Aristotle argues. All singular beings are exposed to each other, and in this mutual exposure, or sharing out, community is rendered inoperative or unworkable precisely because there is no stable identity or substance that unites singularities in a completely immanent way. This absence of identity and substance is nothingness. If ‘meaning is itself the sharing of Being,’42 then it is because ‘the nihil of creation is the truth of meaning, but meaning is the original sharing of this truth.’43 This realisation occurs not through a consideration of politics as such, but as a result of thinking through the meaning of the political, which is synonymous with the common sharing out, or unworking, of the community. If this is indeed the case, as Nancy claims, perhaps then one should investigate whether Levinas’s move from ethics to politics might better be construed as a move from the ethical to the political. Simon Critchley has addressed this issue, making it clear that he is concerned above all with preserving or, better put, instantiating, albeit in the peculiar sense that Levinasian transcendence as a non-rational (not irrational) movement dictates, a non-totalitarian sense of politics that is open to the possibility of democracy, perhaps for the very first time in history. Critchley’s criticism of

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Lacoue-Labarthe and Nancy rests on what he sees as their total exclusion of the concrete social field or terrain on which intersubjectivity transpires.44 Is Levinas also implicated in this critique, or does he truly open the possibility for a radical reengagement with politics, in a way that either corroborates or breaks free from Lacoue-Labarthe and Nancy’s efforts? Drawing on Heidegger’s position regarding the end of metaphysics and the emergence of global technological domination, Nancy and Lacoue-Labarthe argue that the present is denoted by a ‘closure of the political’ (la clôture du politique). The inevitable consequence of politics (la politique) is totalitarian immanentism, in other words, a conception of community that is (theoretically, though in actuality often not) completely transparent, an organisational arrangement legislated by an operative logic of identification that renders difference and otherness null and void and susceptible to policing and socioeconomic manipulation. Certainly democratic theory, which claims to preserve and defend the rights of the autonomous subject, offers important insight into this problem, and in many respects is completely compatible with the concept of the inoperative community. But as history has repeatedly demonstrated, democracy ironically often falls prey to the very tyranny and despotism it tries to avoid precisely because it grounds itself in the notions of totality or the social whole, which in turn tends to be grounded in purely rational terms, and therefore often closed to the necessary inoperative feature of transcendence. It is by now of course an easy matter to eschew traditional notions of monarchic, aristocratic, or oligarchic sovereignty. And socialism and communism, too, even though they give a much needed and at times tangible voice to the afflicted and oppressed numbers of society in the name of justice, must be viewed with a certain scepticism as they are theoretically and historically grounded in the very ontology that gave rise to its principal socioeconomic nemesis, namely, late or corporate capitalism, or globalisation. While authoritarian, dictatorial regimes immediately come to mind when thinking of totalitarian politics, Lacoue-Labarthe and Nancy also include, in what initially appears to be a surprising move, the various existing models of liberal democracy, albeit as ‘more insidious’ and ‘softer’.45 The immanentist agenda and movement of capitalist societies is virtually invisible, however, due to the overwhelming predominance of mass-market economics that dictate the make-up of the sociopolitical structure, enfolding the general populace under a surreptitious homogenisation subtended by the somewhat illusory freedom of consumerist choice. And though Western-style democracies do not generally experience the gross injustices of totalitarian regimes, Lacoue-Labarthe and Nancy maintain that the increasing capitalist technologization indicates a movement toward the uniformity inherent in totalitarian forms and the complete withdrawal or ‘retreat’ (retrait) of the political from politics. ‘In speaking of the retreat, we meant that something draws back into (or from) what, both in order to speed things along as well as to provoke,

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[we] will call the modern city. In the constitution of the enormous and complex unity which one can no longer even call the State – neither in the Machiavellian nor, perhaps, in the Hegelian sense – something like the city, or like the ‘civility’ of the city precisely pulls back.’ In this drawing back resides the potential for a ‘new totalitarianism’, characterised ‘first of all as the retreat of transcendence or of alterity’. But it is not a question of ‘ “regaining” a remote transcendence, but of wondering how the retreat compels us to displace, re-elaborate and replay the concept of “political transcendence” . . . it is indeed a question, in the name of “the essence” of the political, of a transcendence and an alterity. That is why the question cannot be an empirical one’.46 In other words, once again, the heart of the question is philosophical; it is the question – retraced and rethought – of first philosophy, of coming to terms with taking up the Yes-saying task of creation. If Lacoue-Labarthe and Nancy’s analysis and critique of politics are correct, then a crucial task for philosophy is stemming the reduction of the political to politics. The question here is whether it is possible to instil a sense of ethical transcendence into politics and thereby bring about an actual positive transformation of the political. Conjoining Nancy’s attempt to formulate an inoperative political ontology with Levinas’s theory of ethical transcendence is a useful segue for engaging the question of grounding praxis in a way that is sensitive to the dangers of the essentialising and substantialising metaphysics and world views that still hold sway today in the current echelons of polity decision making.

Notes 1 Part of the present essay was published previously as ‘The Inoperative Earth,’ Studies in Practical Philosophy 4, 1 (2004): 126–45, and is reprinted here with the permission of Lexington Books. This essay refines and further develops the engagement between Levinas, Lacoue-Labarthe, and Nancy, and does not take up the earlier essay’s attempt to conjoin this analysis with the issue of developing an eco-political ontology. 2 Emmanuel Levinas, ‘Uniqueness,’ in Entre Nous: On Thinking-of-the-Other, trans. Michael B Smith and Barbara Harshav (New York: Columbia University Press, 1998), p 194. 3 Emmanuel Levinas, Totality and Infinity, trans. Alphonso Lingis (Pittsburgh: Duquesne University Press, 1969), p 304. Also see ‘Ethics as First Philosophy,’ trans. Seán Hand and Michael Temple, in The Levinas Reader, (ed.) Seán Hand (Oxford: Basil Blackwell, 1989), pp 75–87. 4 Philippe Lacoue-Labarthe and Jean-Luc Nancy, ‘The “Retreat” of the Political,’ in Retreating the Political, (ed.) Simon Sparks (London and New York: Routledge, 1997), p 129. 5 Jean-Luc Nancy, Being Singular Plural, trans. Robert D Richardson and Anne E O’Byrne (Stanford: Stanford University Press, 2000), esp. pp 10–15. 6 Ibid., p 15. 7 Ibid., p 17; translation modified slightly.

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8 Jean-Luc Nancy, The Gravity of Thought, trans. François Raffoul and Gregory Recco (New Jersey: Humanities Press, 1997), p 51. 9 Ibid., p 52; emphasis added. 10 Levinas, Totality and Infinity, p 25. 11 Ibid., pp 58–9. 12 Ibid., p 58. 13 This term recurs throughout Levinas’s writings, but for his most developed treatment of this concept see ‘Humanism and An-archy’, in Collected Philosophical Papers, trans. and (ed.) Alphonso Lingis (The Hague: Martinus Nijhoff, 1987), pp 127–39. 14 Levinas writes: ‘The eternal return of idealism does not result from a capricious preference for the theory of knowledge on the part of philosophers. It rests upon solid reasons which found the privilege of the Same in comparison with the Other’; Emmanuel Levinas, ‘Transcendence and Height,’ trans. Simon Critchley, in Emmanuel Levinas: Basic Philosophical Writings, (ed.) Adriaan T. Peperzak, Simon Critchley and Robert Bernasconi (Bloomington: Indiana University Press, 1996), p 12. On the concept of return in Nancy, see The Gravity of Thought, esp. pp 13–25. 15 Emmanuel Levinas, Otherwise than Being or Beyond Essence, trans. Alphonso Lingis (The Hague: Martinus Nijhoff, 1981), pp 169–71. 16 Ibid., p 38. 17 Jean-Luc Nancy, The Inoperative Community, trans. Peter Connor (ed.), Lisa Garbus, Michael Holland, and Simona Sawhney (Minneapolis: University of Minnesota Press, 1991), p 27. Also, cf. Lacoue-Labarthe and Nancy, Retreating the Political, pp 132–3. 18 Nancy, The Inoperative Community, p xxxix. 19 Ibid., p 60–1. 20 See Jean-Luc Nancy, ‘La comparution/The Compearance: From the Existence of Communism to the Community of “Existence”,’ trans. Tracy B Strong, Political Theory 20, 3 (August 1992): pp 371–98. 21 Nancy, Being Singular Plural, p 32. 22 Jean-Luc Nancy, The Birth to Presence, trans. Brian Holmes (Stanford: Stanford University Press, 1993), p 155. 23 Jean-Luc Nancy, ‘Of Being-in-Common’, trans. James Creech and Georges Van Den Abbeele, in Community at Loose Ends, (ed.) Miami Theory Collective (Minneapolis: University of Minnesota Press, 1991), pp 7–8. I will follow François Raffoul and Gregory Recco’s translation here for the reasons outlined in the ‘Translator’s Preface’ to The Gravity of Thought, p xxiii. 24 Nancy, The Inoperative Community, p 28f; also, Nancy, ‘La comparution/The Compearance’. 25 Jacques Derrida, ‘Violence and Metaphysics: An Essay on the Thought of Emmanuel Levinas’, in Writing and Difference, trans. Alan Bass (Chicago: University of Chicago Press, 1978), p 109. 26 Jean-Luc Nancy, The Experience of Freedom, trans. Bridget McDonald (Stanford: Stanford University Press, 1993), p 70. 27 Levinas, Totality and Infinity, p 39. 28 On this concept, see especially Levinas, ‘Transcendence and Height’. 29 Nancy, The Inoperative Community, pp 104–5, 113, 117–18, 120–1, 124, 129, 136. 30 Ibid., pp xxxvii–xxxviii. 31 Nancy, The Birth of Presence, p 155. 32 Acknowledging Heidegger’s delimitation of metaphysics, Lacoue-Labarthe and Nancy write, ‘our “philosophical” is actually the same thing: it is metaphysics. If

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36 37 38 39 40 41 42 43 44 45 46

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you prefer: the philosophical designates a general historico-systematic structure – which, up until recently, one could have called the West – of which philosophy is each time the thematisation, the prefiguration or the anticipation, the reflection (critical or not), the contestation, etc., but which largely overflows the basically restricted field of operations of actual philosophising’ (Retreating the Political, p 124). Nancy, Being Singular Plural, p 32. Ibid., p 199 n. 37. Nancy borrows this term from Blanchot, who uses it in the context of describing the infinite process of writing, a process that resists a totalisable concept of the work as book-writing. See Maurice Blanchot, The Infinite Conversation, trans. Susan Hanson (Minneapolis: University of Minnesota Press, 1993), pp 422–34. Levinas, Totality and Infinity, pp 216–17. Ibid., pp 77–8. Ibid., p 81. Nancy, ‘Of Being–in–Common’, pp 1–12. Also, cf. Nancy, The Inoperative Community, p xxxviii. Nancy, The Inoperative Community, p 28. Ibid., p 26f. Nancy, Being Singular Plural, p 2. Ibid., p 3. Cf. Simon Critchley, The Ethics of Deconstruction: Derrida and Levinas, 2nd ed. (Lafayette: Purdue University Press, 1999), Ch 5, ‘A Question of Politics: The Future of Deconstruction’. Lacoue-Labarthe and Nancy, Retreating the Political, p 128. Ibid., pp 129–30.

Part III

Levinas and the law: a welcome intrusion

Chapter 8

Here I am: illuminating and delimiting responsibility Desmond Manderson 1

. . . God did tempt Abraham, and said unto him, ‘Abraham’: and he said, ‘Behold, here I am.’ . . . And Isaac spake unto Abraham his father, and said, ‘My father,’ and he said, ‘Here am I, my son.’ . . . And the angel of the Lord called unto him out of heaven, and said, ‘Abraham! Abraham!’ and he said, ‘Here am I.’ – The Bible, King James Version 2

1. Introduction The ethics of Emmanuel Levinas and the law of negligence are in many ways surprisingly well suited. Levinas offers a sustained meditation on the relationship of ethics, responsibility and justice, and he does so using precisely the language of the duty of care, of neighbourhood, and of proximity. ‘Perhaps because of current moral maxims in which the word neighbour occurs, we have ceased to be surprised by all that is involved in proximity and approach.’3 Here then is a philosopher, largely unknown to doctrinal legal theory, who at last speaks the language of torts. The resonance between the two is not coincidental. Levinas was writing about duty and responsibility just as the law, too, was grappling with them anew. His work, and its reception into English – Otherwise Than Being was first translated as late as 1981 – suggest the relevance of these questions to many disciplines. Meanwhile, first in the English cases of Hedley Byrne v Heller, Dorset Yacht Co., and Anns v London Borough of Merton, and then particularly in a great line of Australian cases stretching from Jaensch v Coffey, and Sutherland Shire Council v Heyman, to Gala v Preston, Burnie Port Authority v General Jones, Pyrenees Shire Council v Day, and Perre v Apand, the legal understanding of our relationship to others was undergoing a radical though poorly explicated re-evaluation.4 It seemed then as it seems now that the most crucial question in the world was the question that the law of negligence has taken for itself: why should we care for others? and how much? And in attempting to answer this question it is not too much to suggest that the High Court of Australia seemed at times to have been unwittingly

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inspired by the secret breath of Levinas. To draw forth these parallels, and to try and provide them with a more secure basis, recognises and gives greater depth to the context that informed the work of the Court. Proximity is the key word that connects Levinas’s explanation of the parameters of ethics to the High Court of Australia’s explanation of the parameters of the duty of care. For Levinas, this implies a closeness to others who can be approached but never reached. We are never exactly the same as another person, and in the trauma of that distance lies summoned our soul.5 Levinas means by proximity something fundamental to who we are and why we have a responsibility to others; something which furthermore cannot be reduced to logic or knowledge or rules. Proximity is an experience, emotional and bodily, and not an idea.6 Astonishingly, in and after 1984, the Australian High Court was on the same track. Particularly in the influential judgments of Justice William Deane, who later, as Governor General of Australia, was to become a figure of enormous ethical power across a range of controversial social issues, the Court sought to give new content to the duty of care by reference to the concept of proximity, ‘the general conceptual determinant and the unifying theme of the categories of case in which the common law of negligence recognises the existence of a duty to take reasonable care’.7 The notion of proximity was a radical and controversial jurisprudential development that led to innovation after innovation in the Court’s judgments. In the first place it allowed the court to reflect on the actual connections between parties that might found a duty of care, without ever reducing those connections to ‘the strait-jacket of some formularized criterion of liability’.8 Instead the Court remained infinitely responsive to the unpredictable complexity of circumstances: it took proximity as an experience not a rule. Secondly, proximity steadily drove the Court’s analysis of personal responsibility from an emphasis on the conscious choices and elections of the defendant, or conscious reliance by the plaintiff,9 to the control exerted by one and the vulnerability of the other, phenomena of which the parties themselves might be entirely unconscious: the court took responsibility as a predicament not a choice.10 When I first read these judgments it seemed to me that the Court, and Justice Deane in particular, was groping towards a new idea of the nature and the legitimacy of our ideas of responsibility. Then when I read Levinas some years later, I came to appreciate much more clearly what they might have wanted to say and why it mattered. The Court’s emphasis on proximity seemed in the two ways I have just mentioned strikingly close to Levinas’s ideas of asymmetrical, non-consensual, infinite and imprescriptible responsibility. The conjunction of these two discourses, each in their own ways uniquely positioned to reflect deeply on the essence of our responsibility to others, and the connections between the language they each used, seemed to me so remarkable as to demand a sustained analysis.

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What Levinas brings to this discussion is a very detailed understanding of proximity as a kind of relationship that gives rise to responsibility, that cannot be codified, fixed, and determined, and yet must inevitably find expression in words (legal or otherwise) whose function is to define and to conceptualise. In the period under review, the High Court of Australia struggled with and eventually failed to come to terms with the very same paradox, ultimately rejecting proximity just because it was ‘a legal rule without specific content, resistant to precise definition and therefore inadequate as a tool . . .’.11 Indeed, following the departure of Justice Deane from the bench, the concept rapidly declined in significance. In 1998, Justice Kirby went so far as to conclude ‘it is tolerably clear that proximity’s reign in this Court, at least as a universal identifier of the existence of a duty of care at common law, has come to an end.’12 Yet here Levinas points to the way in which the Court missed the point. Instead we need to insist on the role of this paradox in the law – the value of an approach that is not reducible to a rule – and to demonstrate that proximity’s incapacity of a priori definition does not strip it and indeed is the source of its ethical power to shake and transform the law. In other words, with the help of Levinas we can begin to see, on the level of substance, the outline of a different idea of responsibility; and on the level of method, that the fear of ‘judicial activism’ misunderstands the very nature and role of ethical judgment in law. Furthermore, these two ideas – what it is to be responsible and what it is to judge – are in fact integrally connected. This is the general outline of an argument I make at greater length elsewhere.13 Nevertheless, despite this connection in spirit and vocabulary, there are considerable problems in engaging an applied ethics through Levinas’s optics.14 In the first place, we are faced with Levinas’s own relative silence on the question of law itself. In his major works, he says very little about the relationship of law to the ethics of alterity, and what he does say suggests that he thinks of law as an entirely positivistic, codified, and rule-bound structure. In other words, law seems for Levinas to be synonymous with politics and justice synonymous with rules.15 This seems to me a fundamental mistake about the nature of legal discourse, though a very familiar one. As the common law of negligence makes abundantly clear, and the propaganda of some lawyers and judges to the contrary, we simply cannot characterise law as the application of ‘rules’. Furthermore, as Sarah Roberts writes, ‘if one takes seriously Levinas’s claim that asymmetrical ethical responsibility is the origin of justice then one must also reject Levinas’s suggestion that justice [merely] involves viewing persons and responsibility as comparable and symmetrical.’16 The more conceptual difficulty lies in his insistence on treating the ethical realm, in which responsibility is unique, unbidden, and infinite, as entirely incommensurable with the political realm, in which responsibility is made subject to definite, finite, rules, and moreover subordinated to the pragmatic

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demands of the State and social policy.17 Questioners like Derrida, Rose and Habermas have wondered how it could ever be possible for Levinas’s notion of an ethics of absolute and ‘infinite responsibility’ towards others to communicate with a political world inevitably governed by regulation on the one hand and constrained by the need to balance and limit our responsibilities on the other.18 Nevertheless I remain committed to the possibility of a relationship between law and ethics – Levinas and torts – in which neither corrects or replaces the other, but rather sheds new light on their meaning and their possibilities. Such relationship is best characterised not by their sameness or difference, but by the transformative and enriching potential afforded by their juxtaposition – indeed, as Levinas would put it, by their proximity. No doubt there will be those who think the muddy process of application – to something as concrete as legal doctrine, what’s more – demeans Levinas’s sublime ideas. One might even suppose that Levinas himself falls into that category.19 Yet on further reflection, if Levinas set his face against one thing all his life, it was purity, a hermetic closure that, in defence of sublime perfection, sets itself up as a totality resistant to all external influences. Ethic purity is no better than any other kind. Levinas believed in contamination, in imperfection, and in knotty and chaotic failure. In this chapter I want particularly to take up the question of limitation in law and ethics. Responsibility in law (at least) is not universal and unbounded. This drawing of lines – judgment – has proved a difficult question for the law of torts, particularly in those areas in which there has been no direct physical contact between the parties – where words and not actions cause harm; or where physical injury has been inflicted on the victim by a third party. In each case, the courts are concerned to determine the extent of our responsibilities to others. Surprisingly, perhaps, given the way in which Levinas has often been read, we will find that Levinas’s language of ‘illimitable responsibility’ can nevertheless help us understand where and how to think about the drawing of boundaries.

2. From said to saying: responsibility and words A friend clears his throat: ‘Can I ask you a question?’ The phone rings. There is a knock at the door. A child is born.20 In none of these cases do we know the content of the demands to be placed upon us, but we put ourselves forward in order to establish the condition for such a relationship to commence. These are all examples of that little phrase, me voici, here I am. For Levinas, this statement of responsibility and vulnerability consecrates and makes possible our relation to others. It ‘opens me to the other before saying what is said . . . Here I am! The accusative here is remarkable: here I am, under your eyes, at your service.’21 Thus when Abraham answers God’s call and says ‘here I am, here am I’ he cannot know what is being asked of him,

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nor even who it is who truly speaks. Who God ‘really is’ is a mystery; but then who any of us really is remains a mystery. Me voici is the opening gambit that declares itself ready to take on an unknowable responsibility – a statement of presence as a promise of duty. ‘It is without words, but not with hands empty.’22 Now for Levinas the danger is that any determination or definition of this responsibility, by consolidating the experience into a form of words, operates as a reduction that destroys its initial relational readiness. If language begins with the promise of trust, Levinas is concerned that any semantic analysis of the content of a statement will only serve to destroy it. Yet as Derrida pointed out, Levinas had to face the problem that his own language – and any language that attempted to explain just such an argument – would in the process fall foul of its own critique. In ‘Language and Proximity’,23 and then in Otherwise than Being, Levinas responded by focusing on the distinction between the ‘saying’ and the ‘said’.24 Me voici is not for Levinas a thing we say or do not say; it is the voice that initially makes all those other things – our ideas, plans, and relationships – possible. ‘Is language the transmission of and a listening to messages which would be conceived independently of this transmission and of this listening, independently of communication? . . . Or on the contrary, would language involve a positive and antecedent event of communication which would be an approach to and a contact with the neighbour, and in which the secret of the birth of thought itself and of the verbal statement that bears it would lie?’25 All language betrays, through its necessary reduction to specific, abstract, and generalisable signifiers, the unique relationship that first gave rise to it. Nevertheless, behind the words that we use lies a ‘trace’ of that initial gesture of welcome; like a blackboard that can never be entirely wiped clean or a ghost that disappears the moment we look for it.26 ‘In this “said”, we nonetheless surprise the echo of the saying.’27 Levinas’s references to the ‘trace’ and the ‘saying’ of language reminds us of the initial responsibility to another that speaking constitutes. The dimensions of this closeness cannot be pinned down like some lepidopterist’s specimen. In Hahn v Conley,28 the Australian High Court was asked to attribute meaning to the words and gestures spoken to a three-year-old child. Anne was staying on her grandparents’ farm in South Australia. She had wandered off from the ‘womenfolk’29 in the house, and now she found herself alone and cried out. Her grandfather called to her, saying exactly this: ‘Here I am’. So (and it is this ‘so’ that is the heart of the case) Anne set out for him, first walking and then, as she drew near, in a trot. As she crossed the road, Anne was struck and badly injured by a fast-moving car. The driver had clearly been negligent. He in turn argued that the grandfather ought to bear

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a proportion of the damages since he too was responsible for the child’s injury.30 The majority excused the grandfather from all culpability. Barwick CJ, in particular, analysed the unfolding drama moment by moment, parsing each utterance and fragment of time to determine if anything in the relationship between the two had changed. ‘I doubt if there is really any evidence that the appellant did call the child to him. I think the predominant conclusion from the evidence is that the appellant’s response to the child’s cry was no more than a reassurance to her that she was not alone.’31 For Barwick, an utterance is something said, whose meaning lies in the objective propositions it contains. Starting from what was at the time (and in many cases still is) the orthodox premise that responsibility cannot be imposed unless it is actively accepted, he focuses exclusively on the intention of the utterer.32 Did the grandfather consciously accept this responsibility to care for Anne; did he consent to be trusted and if so, to precisely what extent? This is the orthodox way in which the common law understands our responsibility in cases of omission.33 ‘Here I am’ must mean something in particular: our job as judges is to work out what it is. It is that objective meaning – a level of responsibility correlative with consent – that determines the relationship. Even the dissenting judgment of Menzies J in the High Court (with whom Walsh J agreed) conceded that the call of the grandfather founded no duty of care: ‘She was not in his charge. Had he then called the child to cross the road to him, that would have been negligent because, by so doing, he would both have exercised control over her and exposed her to danger . . . The appellant’s early call to the child has not that character.’34 According to a majority of the High Court, when Anne’s grandfather said ‘here I am’, he was not making a promise; he was merely stating a fact. Perhaps they did not remember the story of Abraham and Isaac. But there is a poverty of imagination here. Why, exactly, was the child crying though ‘not’, apparently, ‘weeping or in distress’? Barwick CJ himself describes the grandfather’s response as ‘no more than a reassurance to her that she was not alone’.35 Reassurance against what? Against the sense of vulnerability and abandonment that Anne undoubtedly felt. She did not want to know simply as a fact that she was not alone; she wanted to feel differently about it; she wanted to be kept safe. Otherwise, her movement towards her grandfather, first a walk and then a trot, makes no sense. There was therefore already a promise of some kind, of closeness and of care, inherent in the grandfather’s statement. The word ‘reassurance’ implies as much. Anne’s grandfather may or may not have meant to inaugurate an act of responsibility, but the responsibility came toddling towards him, nonetheless. Responsibility, as Levinas insists, is something that happens to us whether we choose it or not. It is not a product of our intentions but of the vulnerability of the other. Indeed, in later years, the High Court went some way towards recognising all this by insisting that the connection which gives rise to a duty of care derives

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from the two parties’ proximity, by which is at least arguable that they meant a phenomenological experience created by the vulnerability of the one and not the consent of the other. We see here the actual effect of the ‘saying’ (dire) of language on a child who does not have the kind of semantic competence that Barwick presumed. Is there a comfort that language first provides? Just this: the presence of another to take care of you; another who can be trusted; another who welcomes you. Just to say ‘here I am’ is already to invite a movement in response to a promise. Anne was a child of three. She understood the saying, and not the said. And it was that saying, that voice, that quite literally drew her to the other. To speak, to clear one’s throat and begin, is sometimes already a responsibility that cannot be reduced to a specific signification. The troubling aspect of this conclusion was not the argument but its consequences. The driver had insurance; the grandfather, in all probability, did not. A decision that the grandfather was partly responsible for the child’s injuries would have had the perverse effect that more of the burden, rather than less, would have fallen on Anne’s family. Windeyer J attempted to circumvent the invidious problem in another way. He argued that the grandfather did have a responsibility for the child.36 But Windeyer J concluded that the grandfather’s behaviour was nevertheless reasonable. ‘There is no evidence that motor traffic on the road was so frequent that any crossing must have been hazardous. If the appellant had gone to the child when he first saw her, she would not have been hurt. When he decided to do so it was too late. But he is not to be said to be a tortfeasor simply because he did not prevent the accident.’37 A duty of care was owed, but not breached. The point is at least arguable, and though Windeyer J might be said to have stretched his reasoning to reach the desired outcome, he does not destroy the entire structure of tort law in the process. Barwick CJ came to the same result, but by a process of expedient consequentialism that misunderstood the very nature of the duty of care. The difference between the two approaches can be readily appreciated if we transfer the setting from a country road to a city street. For Barwick, since there is no duty of care in relation to the child in the first place, the result must be the same, while for Windeyer the inaction is this time surely negligent. Yet it cannot be the case that a grandfather – or indeed a stranger – who calls to a little child in such a situation owes no responsibility to her.38 Perhaps the distinction between the fact of my proximity to others, and whether my response to that responsibility was reasonable, might not matter if the law of negligence were simply an instrument to allow the compensation of injured parties, but it is not. Its value, if it has any, is as a social and public discourse by which the nature of our responsibility to others is explored and deepened. That is why the law matters and why its articulations of the responsibility are a process by which we do not just apply something, but learn something. The

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other, as Levinas also said, is my teacher, and this is, or at least ought to be, profoundly true of the law.39 If we accept an approach to negligent words that pays attention to the promise of its ‘saying’ and not just what has been agreed to in the ‘said’, then certain opacities that have endured since the path-breaking House of Lords decision in Hedley, Byrne & Co v Heller can be clarified.40 The fundamental notion persists in this area of the law that a responsibility for words, in order to be recognised, must have been consciously accepted by the defendant. In that case, the bank’s response to a request for advice was clearly headed ‘without responsibility on the part of the bank’ and that refusal was ultimately enough to abrogate any duty to its recipient that might otherwise have followed.41 Yet the categorical distinction suggested here has become progressively harder to maintain. In Shaddock, for example, Stephen J expressly indicates that in some circumstances a local council might still be held responsible for their advice even were they to disclaim any responsibility for it.42 Of course, it is not to be supposed that one would always be held responsible for the provision of bad information. It is not negligent to indicate ignorance or uncertainty before or instead of expressing an opinion. But in Shaddock the Council was being asked about their own plans and policies, and they alone had the capacity to find out certain information and to disclose it to the plaintiff.43 It is the saying and not the said that establishes the proximity of the parties. The Council having placed itself in the position of saying, in effect, ‘here I am’ – I and I alone, ‘under your eyes’ and ‘at your service’ – cannot fall back on the strict construction of its disclaimers, for behind those words necessarily lay an unavoidable relationship of promise and of dependence. To insist on the priority of the saying over the said emphasises instead the same factors that have proved relevant in many other cases, such as the power to control information on one side, and the utter vulnerability to it on the other.44 And these are factors which Levinas reminds us, time and time again, are phenomena giving rise to our response–ability regardless of whether we like it or not. We can see the implications of such an approach if we consider the work of, for example, a Bureau of Meteorology. It is easy to imagine that their careless words – let us say, a failure to provide a timely storm warning to boats at sea45 – might lead to both physical and economic injury. Within the framework of Hedley, Byrne & Co v Heller, the question is whether the Bureau actively agreed to take on a legal responsibility to those who listen to them and the answer is: ‘not bloody likely’. Within the framework of proximity, vulnerability, and control, the question is the fact of an unavoidable closeness and dependence created by the ‘saying’ and not the ‘said’ of their words. What can the boat do but rely on these words? What can avert such a disaster but a timely announcement by the metereological service? An organisation like the weather service offers many speculative interpretations and no one would imagine them negligent for failing to forecast the rain. But it also

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presents and guarantees specialised data on which such speculations are based. The question in such cases is whether there has been an initial offering of trust – me voici, here I am – and, if so, to whom. Both for Levinasian ethics and in the common law, the question is one of proximity (a relationship that surprises) not privity (a relationship created by consent), responsibility (a relationship founded on vulnerability) and not agreement (a relationship founded on equality).

3. Matters of limitation: responsibility for third parties For Levinas, the vulnerable other singles us out. By holding us hostage or, to put it more positively, by entreating our hospitality, l’autrui breaks our eternal slumber of dull self-referentiality, and makes us, at last, distinctly individual, fully conscious human subjects.46 Yet al.though Levinas demands a great deal of us – may command that we rescue a person with whom we have no prior relationship or obligation at all – this singularity is neither absolute nor unlimited: the supplicant ‘yet distinguishes himself from every other existent’.47 It is on this point that Levinas is often misunderstood. When Levinas speaks of responsibility as infinite, he does not mean that it extends equally over everything it encounters, like some monstrous sump of duty. It is infinitely deep, not infinitely wide. Responsibility is infinite in the sense that it is insatiable, so to speak, but not in the sense that it is indiscriminate.48 Neither is it simply the fact of my vulnerability to harm, but my subjection to you in relation to it that draws forth your responsibility. ‘It obliges me as someone irreplaceable and unique, someone chosen . . . Irreplaceable in responsibility I cannot, without defaulting, incurring fault . . . escape the face of a neighbour.’49 This is what limits the meaning of proximity and thus makes Levinas relevant to law, rather than yet another homily for the universal brotherhood of man. For example, the call for charity, though it is made by or on behalf of persons who are in their own situation just as vulnerable, does not single me alone out in such a way. I am statistically responsible, socially implicated, but that is precisely the kind of reasoning that, though it is undoubtedly relevant in certain circumstances, does not form the basis of an ethical (or tortious) obligation. The courts have been especially cautious not to overburden the extent of our responsibilities not just to others, but for the actions of others. Liability has been typically confined to cases in which there has been some pre-existing relationship of ‘special’ control over the actual actors.50 In the Australian High Court, matters came to a head in Modbury Triangle Shopping Centre v Anzil.51 The case powerfully illustrates the cautious and perhaps retrograde approach to responsibility that has begun to characterise the court’s reasoning since they turned their back on proximity in 1998. The employee of a video store at Modbury Triangle, a suburban shopping centre, was severely

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injured when three men assaulted him. Tony Anzil had finished business at ten o’clock, and then proceeded to close the till and lock up. Around 10:30 p.m., on the way to his car, he was attacked, probably in the course of a robbery. Despite consistent complaints from the manager of the video shop as to the safety of the premises, the shopping centre management had programmed the lights in the car park to switch off promptly at 10:00 p.m. By the time that Anzil began to leave, the shopping centre was dark, deserted, and dangerous. He was accosted in the ten metres between the shop and his car. The High Court rejected the responsibility of Modbury Triangle despite what appears to have been their blithe disregard for the safety of their tenants’ employees,52 expressly rejecting any supposed ‘duty to control the criminal conduct of others’.53 ‘In those cases where a duty to control the conduct of a third party has been held to exist, the party who owed the duty has had power to assert control over that third party. A gaoler may owe a prisoner a duty to take reasonable care to prevent assault by fellow prisoners. If that is so, it is because the gaoler can assert authority over those other prisoners.’54 As Gleeson CJ explicitly argues, the fact that the shopping centre had the capacity to make the environment safer does not mean that they had assumed the responsibility to do so. Neither can it be said that Modbury Triangle had the least ‘control’ or ‘knowledge’ over the criminal behaviour that actually caused the injury.55 But the Court’s steadfast refusal to couch the question in the language of proximity led them seriously astray. Proximity – in the Australian High Court’s extensive meditations on the moment that gives birth to our responsibility to another, as much as in Levinas’s intensive meditations on it – is a relationship that gives rise to a duty of care, and the relationship in which the language of control and vulnerability ought to have been considered was that of the employee and the shopping centre – not that of the criminals and the shopping centre. Modbury Triangle’s exclusive ability to control the lighting of the car park made Anzil vulnerable to attack in a situation in which he was himself powerless to do anything about it. He could not avoid that vulnerability. Neither he nor indeed the video shop could protect him. And it is this relationship that singled out Modbury Triangle. The High Court, in forgetting the relational nature of the duty of care, abstracted the question of control from the person over whom it was – in fact – exercised. Indeed, in an earlier case, dealing with a separate area of responsibility, the High Court had come close to recognising the basic principle of proximity that they had been struggling to articulate for many years. Burnie Port Authority likewise concerned the nature of a responsibility not over actions but over an environment.

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‘One party to that relationship is a person who is in control of premises . . . The other party to that relationship is a person, outside the premises and without control over what occurs therein, whose person or property is thereby exposed to a foreseeable risk of danger . . . In such a case the person outside the premises is obviously in a position of special vulnerability and dependence. He or she is specially vulnerable to danger if reasonable precautions are not taken in relation to what is done on the premises. He or she is specially dependent upon the person in control of the premises to ensure that such reasonable precautions are in fact taken.’56 But this is not simply about ‘special relationships’. It is about what it means to be proximate to someone and why we are responsible for them. Unfortunately, with the abandonment of the term ‘proximity’, this insight was lost. The judges were concerned that if Modbury Triangle were responsible for Anzil, then they would have been obliged, at the very least, to ‘leave the lights on all night’.57 ‘If the appellant owed [Anzil] a relevant duty of care, it was to take whatever steps were reasonable in all the circumstance to hinder or prevent any criminal conduct of third persons which injured the first respondent or any person lawfully on the premises.’58 After all, the shopping centre was also home to an automatic teller machine which might attract customers much later than 10:30 in the evening.59 ‘There was, in the circumstances, no relevant difference between the duties owed to other lawful entrants upon the car park and the respondents.’60 In short, the court sees nothing distinctly vulnerable in the situation of Tony Anzil, and nothing to connect that vulnerability to the control exercised by Modbury Triangle. Not so. The ATM’s customers can always decide to get their money somewhere else. They can always decide to come back in the daylight. They can have their friends or family come with them, late at night, if they wish. They have a freedom to come or to go that attests to the fact that Modbury Triangle is on no account in control of their fate. This is the limit of responsibility – when the defendant is not thereby uniquely singled out or ‘called in question’ – to which Levinas’s arguments in fact lead us. But it is clear that an employee finds themselves in a circumstance of distinct and peculiar vulnerability. He cannot, realistically, choose to work elsewhere. He cannot decide to wait until the morning to leave. There was only one way out, and he had to take it, and he had to take it then. Mr Anzil was vulnerable in a way quite different from others who might come and use the shopping centre’s facilities; and the only one who could allay that vulnerability was Modbury Triangle. This being the fact or experience that establishes the requisite proximity of Modbury and Anzil, the shopping centre’s reluctance to accept it or do anything about it does not have the effect of waiving their responsibility but of betraying it.

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Neither was the problem merely Modbury’s failure to leave the lights on, which might indeed have affected every visitor to the shopping centre equally. The specificity of Anzil’s predicament was not appreciated by any of the judges in the case, including Kirby J’s eloquent dissent. It was not a question of darkness but of light. Anzil was trapped. He was a spot-lit target, all too easy to observe as he completed his work in a pool of light, surrounded by a darkness that readily concealed both the observers and their conduct. He could not see them as they waited, but they could see him, a problem that was only exacerbated when he left Focus Video for the low light to which his eyes had not yet adjusted but which suited his attackers admirably. In short, it was the ideal environment for a lying-in-wait. There was only one way home: through the darkness that Modbury Triangle had created, and that they alone could remedy. Once again, the Court’s failure is therefore primarily imaginative, not conceptual. Proximity, during the period of its ascendancy from 1984–1999, was rightly criticised for its over-generalized logic, but that was never its real value. Certainly, for Levinas, proximity founds responsibility not on logic but experience. It offers not one rule amongst others, but instead a necessary moment in which to understand our relationship to others as coming from a phenomenal connection between persons that arises out of a particular predicament that binds together the vulnerability of one to the response ability that singles out another. Without reference to proximity, it is not our law’s reasoning that will suffer, but its empathy – and that, says Levinas, is what makes reasoning possible.

4. Me voici: politics and the challenge of responsibility The real implications of such an understanding of responsibility are not always palatable. Even Levinas has been guilty of political hesitancy when confronted with the specific implications of his arguments, in circumstances which parallel the questions confronted by the High Court in Modbury. 16 September 1982 was a Thursday. Israeli Defence Forces (IDF) had occupied West Beirut 48 hours previously in response to the assassination of the President of Lebanon, in order to ‘prevent any possible incident and to secure quiet’. Yet according to the Israeli government’s commission of inquiry, that same evening groups of Lebanese Phalangist militia were in fact permitted to enter the Palestinian refugee camps of Sabra and Shatila, supposedly in order to clear out suspected terrorists and fedayeen. The IDF did nothing to prevent the indiscriminate violence that occurred that night and throughout the following day. Despite growing reports of atrocities, and discussions at the highest level of the Israeli government, the IDF stood back and refused to intervene until Saturday morning. By then, upwards of seven hundred people had been killed.61

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There are good reasons to doubt the Likud government’s protestations of innocence. The Commission of Inquiry chaired by the Supreme Court President, Justice Yitzhak Kahan, revealed clear evidence of knowledge at the highest levels as to what was going in the camps, from as early as Thursday evening.62 Indeed the Commission, which conducted its work with unstinting honesty, ultimately forced the resignation of Ariel Sharon.63 But the central question was not factual. It was about the nature of responsibility. Was the IDF responsible for the acts of ‘third parties’ notwithstanding that it did nothing except fail to intervene? If one were to adopt an approach similar to that advanced in Modbury Triangle, one might wonder. There we have seen the Court insist that only exceptional circumstances impose a ‘duty to control the criminal conduct of others’.64 One might certainly argue that the action of the defence forces, in entering West Beirut, avowedly in order to maintain control of a volatile situation, had ‘assumed responsibility’ for the situation. But the emphasis in Modbury would appear to suggest that the right question to ask is whether they had ‘assumed’ control over the criminal conduct, and here the IDF clearly and expressly did not. They said just the opposite, over and over again. Sabra and Shatila ought to offer us a paradigm for the nature of responsible action, and not an exception. If instead it looks like a ‘hard case’, then I think that what has gone wrong is our initial theory of the origin and direction of that responsibility. In this climate of shame and accusation Emmanuel Levinas was interviewed by Radio Communauté. As the interview proceeds, Levinas appears to become increasingly confused. On the one hand he speaks of the ethical responsibility that ‘constitutes every man’s responsibility towards all others’, owed even by those ‘who have done nothing’. On the other hand he acknowledges the political responsibility for the difficult survival of Israel, which constantly requires the balancing of interests and the weighing-up, for example, of one’s commitment to the security of the State against the personal security of others. Shlomo Malka asks, ‘Emmanuel Levinas, you are the philosopher of the “other” . . . and for the Israeli, isn’t the “other” above all the Palestinian?’ Levinas prevaricates. ‘But if your neighbour attacks another neighbour or treats him unjustly, what can you do? . . . We are faced with the problem of knowing who is right and who is wrong, who is just and who is unjust.’65 The implication would appear to be that this is no longer a question of ethics, but of politics, the two unmixable as oil and water. But is this good enough? The application of Levinas’s writings to questions of politics has been a central task of recent scholarship. It has proved exceptionally difficult to apply an ethics of infinite responsibility, faced with particular institutions – parliaments, the army, the law – each operating according to their own closed system of logic and each with their own agenda. This is perhaps the central difference between ethics and politics. Politics applies a logic that allows institutions to measure and balance conflicting demands against determined criteria of success in a particular

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field. Ethics refuses to trade us off against each other. Neither has the attempt to relate ethics and politics been helped by Levinas’s own ambivalence.66 Between the critique of the State in ‘Place and Utopia’, and his enthusiastic support in ‘The State of Israel and the Religion of Israel’, not to mention the Zionist elements to be found in certain essays in Difficult Freedom, there is clear evidence that Levinas found no easy reconciliation between his ethical and political impulses.67 Indeed, several of his other attempts at political commentary are shockingly simplistic.68 At the very least we can conclude that Levinas found the transition between the two no easier than the rest of us. Levinas certainly concludes that ‘there is also an ethical limit to this ethically necessary political existence,’69 and he locates this limit in our souls, in the light of which ‘a person is more holy than a land, even a holy land.’70 This is a fierce argument, and one which the hawks of the Israeli cabinet, then and now, could hardly have welcomed. But there is an aporia here through which Levinas does not so much pass as side-step. It is the question of judgment, of how we are to discriminate between our doing nothing here and our doing nothing somewhere else, between this neighbour and that neighbour, the other and all the ‘other others’.71 And that is the essential problem at the heart of trying to understand responsibility as specific and as limited in a way that will be cognisable in law. Every time Levinas speaks of responsibility as generalised ‘towards all others’, as limitless, or as implicating even ‘those who[m] we call innocent’, he appears to efface the distinction that law requires for its functioning. But our study should by now make it abundantly clear why discrimination remains possible even within an ethical framework. The IDF were responsible because their proximity to the camps ‘called them in question’, not generally, not ontologically, but specifically and uniquely. Those in the camps were utterly vulnerable. They had no capacity to escape or modify their destiny. And while it ought never to be forgotten that the Phalangist gunmen inflicted their deaths, they were only able to do so because of the control or lack of control exercised exclusively by the IDF. Responsibility is not a zero-sum game. It does not lessen the moral culpability of all those who pulled the triggers that night to note that the camps of Sabra and Shatila were a tinderbox awaiting a spark. What distinguished those in the camps was the capacity of Ariel Sharon to altogether prevent the fire that instead he chose to fan. No doubt the IDF appears to have done rather more than just stand by. Once again, it was a question not of darkness but of light, not of concealment but of exposure. The IDF provided illumination of the refugee camps all through Thursday and Friday nights.72 Nevertheless, it is the capacity to light, and not the lighting itself, that matters: on or off, a floodlit camp or a pitch-black shopping centre, they establish a capacity for good and for ill: the power to shelter and the power to expose. The nightlights of the IDF gave the residents of Sabra and Shatila nowhere to hide, enforcing and enhancing their awful vulnerability. But these lights finally illuminate the defence forces

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themselves, singling them out as uniquely response-able.73 The light says what responsibility always says: here I am, at your service. On the contrary, to speak of Sabra and Shatila as ‘the place where everything is interrupted . . . where everyone’s moral responsibility comes into play, a responsibility that concerns and engages even innocence, unbearably so’74 only serves to efface these distinctions. ‘Everyone’s responsibility,’ insists Levinas.75 But responsibility is not everyone’s at every moment. It does not single us out by our consent or our expectations, as orthodox theories would have it and as we saw in Modbury Triangle and Hahn v Conley. It singles us out by the dynamic of vulnerability and capacity that creates hospitality. Those who insist on the unassimilable nature of ethics do not agree, to the extent that any such ‘singling out’ or ‘calling into question’ – the specific acknowledgment of personal responsibility – can be taken to involve a judgment of others and not only a kind of self-reflection and self-questioning.76 The act of judgment seems the most problematic for an ‘applied ethics’, and might even imply that the project is a contradiction in terms. That is why Derrida observed that one cannot ever stay with ethics.77 Instead, we find ourselves forced to move from asymmetric ethics to symmetrical judgment. That is why we will always need recourse to ‘laws and – yes – courts of law, institutions and the state . . .’.78 One might even say that judgment itself, in its severity, its balance, and its haste, is discomfitingly unethical. Such a critique misses two points. The first is this: the grave responsibility of judging others and evaluating their response ability is a fundamental part of our responsibility for the state of the world. Not only is judgment a necessary part of the project of law; it is also surely a necessary part of the meaning of being responsible. The second is this: the politics of judgment that ensues is not uncontaminated by the ethics that inspires and precedes it. A ‘trace’ remains, unassimilable to the systems of judgment but still capable of calling those political calculations in question by another light. In taking seriously an ethics that does not put our priorities and paradigms first, but instead forces us to consider the actual vulnerability of others to our actions and omissions, and that furthermore understands responsibility as a predicament and not a choice, we immediately ‘trouble’ the standard ways of thinking about political ends and means, of power and responsibility – including the standard ways in which the Israeli army thought about just these questions.79 It is true that we are destined to betray our ethical ideals the moment we try to operationalise them or put them into practice, the moment we are called upon to judge and to decide. The ‘saying’ subsides into the ‘said’ yet again. But that too is a responsibility from which we cannot hide. The safe haven of a pure ethics is undesirable and its betrayal is welcome if we are not to totalise our ethics as much as we totalise our politics. Judgment, with all its partiality, imperfection, and pollution, is a central part of the troubling power of ethics. Certainly there are intimations, even in Levinas’s cautious interview, as to

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what is involved in such a judgment. Although he appears to suggest sometimes that we are all neighbours, all indistinguishably ‘close to me’, he also insists here on our obligations to ‘those closest to us’. When he claims that ‘you personally are implicated each time that somewhere humanity is guilty’ he adds, crucially but parenthetically, ‘especially when it’s somewhere close to you.’80 The word ‘especially’ ought not to be treated as an afterthought, but on the contrary expresses the condition that summons proximity into existence.81 If judgment contaminates ethics, which it does, then at the same time ethics contaminates politics. What one saw in the bitter recriminations and intense parliamentary inquiry that followed the massacre, was just how ethics – even though it betrays its purity by the judgment that it forces upon us – can work to question politics; just how it can it sweep away the expedient logic and disavowals that typically shield callous indifference from light, and demand an acknowledgment of a deeper and abiding sense of responsibility. No doubt this ethical crisis cannot be said to have transformed the Israeli army. Still, it is abundantly clear that, haunted by Sabra and Shatila, these ethical scruples continue to be used to scrutinise the army and to hold it to standards of personal responsibility as well as of mere efficiency, demanding that it consider ‘the hunger of the other’ as well as its own goals and criteria. There is a long, long way to go, but I do not think it right to say that the radical discourse of ethics has made no difference at all to the political realm.82 No one in the IDF today can claim to be entirely immune from the ghosts that haunt it. Furthermore, the ethical relationship with the vulnerable is the very condition of trust that must begin before trust is established; and indeed necessarily in the absence of trust. A political community must start with a sacrifice before any political negotiations are even possible. Ethics, then, begins with a pledge not a contract.83 The saying – nothing more than that little phrase ‘here I am’ for you – precedes the said and puts us already in relation with the other. This entails its own risks. Yitzhak Rabin, Prime Minister of Israel, was assassinated in November 1995 precisely because he seemed prepared to sacrifice pride on the altar of peace, and not the other way around.84 But the ethic of sacrifice and of responsibility is a necessary precondition for the foundation of what we might call ‘normal politics’. Perhaps this is the real value of something as banal and normal as law. Despite all its judgments and balances, the duty of care, particularly where it has been inspired by the discourse of proximity, has sought to articulate the importance of the everyday sacrifices we offer up to others; has recognised the necessary asymmetry of our relationships; and has conceived of responsibility as something already drawn forth from us, involuntarily and unbidden. The common law here offers to us a different language of responsibility, and connects the most ordinary of our interactions with the most profound, enabling us to recognise them each in each. This distinct register of responsibility founds both a sense of self and a

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sense of relationship, and it is these in turn which create the very possibility of agreement and justice – ‘even the little there is in this world, even the simple “after you, sir” ’85 Under the logic of contract, there can be no end to violence, for every reprisal merits its exchange and every exchange demands a further reprisal. The Middle East demonstrates the unceasing tragedy of such a history. Instead, it is proximity, not privity, that first connects us.86 The duty of care, in law and in ethics, imagines the possibility of a ‘non-allergic relation, an ethical relation’.87 Such a relationship, as we have seen, is not formal but particular, not conceptual but experiential, not equal but unequal. It begins with those few words that light us up as human subjects, subject us to responsibility, and which give tort law its ethics and its voice: Here I am.

Notes 1 Desmond Manderson holds the Canada Research Chair in Law and Discourse at the Faculty of Law, McGill University, Montreal. This essay derives mainly from Chapter 6 of a much longer work exploring the duty of care in law and its relationship to Levinas’s philosophy: Proximity: Levinas and the Soul of Law (Montreal: McGill-Queen’s University Press, 2006). Permission to reproduce is granted by the publishers and acknowledged with thanks. 2 Genesis 22: 1–12. 3 Emmanuel Levinas, Otherwise Than Being, or Beyond Essence (OBBE), trans. Alphonso Lingis (The Hague: Martinus Nijhoff, 1981), p 5. 4 Hedley, Byrne & Co. Ltd v Heller & Partners Ltd [1964] AC 465; Dorset Yacht Co. Ltd v Home Office [1970] AC 1004; Anns v London Borough of Merton [1978] AC 728; Jaensch v Coffey (1984) 155 CLR 549; Sutherland Shire Council v Heyman (1985) 157 CLR 424; Caltex Oil (Australia) Pty Ltd v The Dredge ‘Willemstad’ (1976) 136 CLR 529. 5 Levinas, Otherwise Than Being, pp 100–1. 6 See in particular ibid., pp 63–97. 7 Stevens v Brodribb Sawmilling Company; Gray v Brodribb Sawmilling Company (1986) 160 CLR 16 at 52–3 per Deane J. 8 Sutherland Shire Council v Heyman (1985) 157 CLR 424, p per Deane J. 9 Hawkins v Clayton (1988) 164 CLR 539; Hill v Van Erp (1995–1996) 188 CLR 159. 10 Burnie Port Authority v General Jones (1994) 179 CLR 520; Perre v Apand [1999] HCA 36. 11 Ibid., per Kirby J. 12 Pyrenees Shire Council v Day; Eskimo Amber Pty Ltd v Pyrenees Shire Council (1998) 192 CLR 330, 414 per Kirby J. 13 See Manderson, Proximity. 14 For recent work, see Robert Bernasconi, ‘The Trace of Levinas in Derrida’, in David Wood and Robert Bernasconi, (eds), Derrida and Différence (Evanston: Northwestern University Press, 1988); Robert Bernasconi, ‘Deconstruction and the Possibility of Ethics,’ in John Sallis, (ed.), Deconstruction and Philosophy: The Texts of Jacques Derrida (Chicago: University of Chicago Press, 1987); Sarah Roberts, ‘Rethinking Justice: Levinas and Asymmetrical Responsibility’ (2000) 7 Philosophy in the Contemporary World 5; William Paul Simmons, ‘The Third:

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Levinas’s Theoretical Move from An-archical Ethics to the Realm of Justice and Politics’ (1999) 25 Philosophy and Social Criticism 83. For example, the discussion of justice in Levinas, OBBE; see also Simmons, ‘The Third’, pp 93–7. Roberts, ‘Rethinking Justice’, p 5. This is a point carefully elaborated in Marinos Diamantides, The Ethics of Suffering: Modern Law, Philosophy and Medicine (Dartmouth: Ashgate, 2000). Jurgen Habermas, The Philosophical Discourse of Modernity, trans. Frederick Lawrence (Cambridge, Mass.: MIT Press, 1991); Gillian Rose, The Broken Middle: Out of Our Ancient Society (London: Blackwells, 1992); Jacques Derrida, ‘Violence and Metaphysics: An Essay on the Thought of Emmanuel Levinas’, in Writing and Difference, trans. Alan Bass (London: Routledge, 1978), pp 97–192. Levinas, Otherwise Than Being, pp 153–62; see also Gillian Rose, Judaism and Modernity: Philosophical Essays (Oxford: Blackwells, 1993), e.g. p 23. Emmanuel Levinas, Totality and Infinity (TI), trans. Alphonso Lingis (The Hague: Martinus Nijhoff, 1969), pp 278–80. Levinas, Otherwise Than Being, p 170. For further on the implications of the accusative tense, see Adriaan Peperzak, ‘The One for the Other: The Philosophy of Emmanuel Levinas’, (1991) 24 Man and World 427, 445. Ibid. Emmanuel Levinas,’Language and Proximity’, in Collected Philosophical Papers, trans. Alphonso Lingis (Dordrecht and Boston: Martinus Nijhoff, 1987), p 109. Levinas, Otherwise Than Being, pp 143–9, 37–43. Levinas, ‘Language and Proximity’, p 125. Levinas, ‘Meaning and Sense’ in Collected Philosophical Papers, pp 102–7. Levinas, Otherwise Than Being, p 170. Hahn v Conley (1971) 126 CLR 276. Ibid., 278 per Barwick CJ. Ibid., 290 per Windeyer J; Wrongs Act 1936 (SA), s 25(c). Ibid., per Barwick CJ. Ibid., 291–2 per Windeyer J. Peter Cane and John Gardner, (eds), Relating to Responsibility: Essays for Tony Honoré on his eightieth birthday. (Oxford: Hart, 2001); Peter Cane, Responsibility in Law and Morality (Oxford: Hart, 2002); Tony Honore, Responsibility and Fault (Oxford: Portland, 1999); Tony Honore, ‘Are Omissions Less Culpable?’ in Peter Cane and Jane Stapleton, (eds), Essays for Patrick Atiyah (Oxford: Clarendon Press, 1991). Hahn v Conley (1971) 126 CLR 276, 288 per Menzies J. Ibid., 285 per Barwick CJ. Ibid., 294 per Windeyer J. Ibid., 295 per Windeyer J. Justice McTiernan’s short concurring judgment appears to make a similar argument. R. Balkin and J.L.R. Davis, The Law of Torts, 2nd edn (Butterworths: Sydney, 1996), p 215. Richard Gibbs, ‘The Other Comes to Teach Me: A review of recent Levinas publications’, (1991) 24 Man and World 219. Hedley, Bryne & Co v Heller [1964] AC 465. Ibid., 599 per Lord Devlin. Shaddock & Associates Pty. Ltd. v Parramatta City Council (No. 1) (1981) 150 CLR 225, 242 per Stephen J. Ibid., 242 per Stephen J. Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; Pyrenees Shire

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Council v Day; Eskimo Amber v Pyrenees Shire Council (1998) 192 CLR 330; Perre v Apand Pty Ltd. (1999) 198 CLR 180. See N.S.W. Coroner’s Report (1999) into the 1998 Sydney–Hobart Yacht Race in which six people died; Bureau of Meteorology Annual Report 2001–2. Levinas, Totality and Infinity, p 26. Ibid., p 177. Ibid., p 244; see also p 200. Levinas, ‘God and Philosophy’ (1975) in Collected Philosophical Papers, pp 153–73, 167. Slight grammatical modifications to the Lingis translation. Smith v Leurs (1945) 70 CLR 256, 262 per Dixon J. See also Dorset Yacht Company v The Home Office [1970] AC 1004 per Lord Morris of Borth-y-Gest (hereinafter Dorset Yacht Company). Lord Diplock speaks similarly of the ‘legal right to control’ at 1063. (2000) 176 ALR 411. Ibid., 434 per Kirby J. There were other problems with the case, particularly concerning the issue of causation, which I have discussed elsewhere: see Manderson, Proximity, Chapter 6. See example, ibid., 440 per Hayne J. Ibid., 439 per Hayne J. Ibid., 417–18 per Gleeson CJ; 439 per Hayne J. Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520, para. 37 per Mason CJ, Deane, Dawson, Toohey and Gaudron JJ. Modbury Triangle Shopping Centre v Anzil (2000) 176 ALR 411, 418 [29] per Gleeson CJ. Ibid., 438 per Hayne J. (italics in original). Ibid., 438 per Hayne J. (italics in original); 419 per Gleeson CJ; 419 per Callinan J. Ibid., 419 per Callinan J. Commission of Inquiry into the events at the refugee camps in Beirut, Final Report (Yitzhak Kahan, Aharon Barak, Yona Efrat, Commissioners), in Abba Ebaan, The Beirut Massacre: The Complete Kahan Commission Report (Princeton and New York: Karz-Cohl, 1983), pp 9–45. For a higher estimate of casualties, see Robert Fisk, Pity the Nation: The Abduction of Lebanon (New York: Atheneum, 1990). Commission of Inquiry, in ibid., pp 22–7. Ibid., pp 69–73. Modbury Triangle Shopping Centre v Anzil (2000) 176 ALR 411, 440 per Hayne J. Emmanuel Levinas, Difficult Freedom, trans. Seán Hand (London: Athlone Press 1990), p 294. Ibid., p 291; Howard Caygill, Levinas and the Political (New York: Routledge, 2001), pp 2–5, 85–8. Ibid., pp 85–8, 162–76; Bernasconi, ‘Different Styles of Eschatology’, pp 13–15. See Emmanuel Levinas, ‘Place and Utopia’ and ‘The State of Israel and the Religion of Israel’ in Difficult Freedom; ‘The State of Caesar and the State of David’, in Beyond the Verse: Talmudic Readings and Lectures, trans. Gary Mole (London: The Athlone Press, 1994), p 177; ‘Assimilation and New Culture’, in The Levinas Reader, (ed) Seán Hand (Oxford: Basil Blackwell 1989). See further Diane Perpich, ‘A Singular Justice: Ethics and Politics between Levinas and Derrida’ (1998) 42 (Supp.) Philosophy Today 59–70. Caygill, Levinas and the Political, pp 183–4 discusses, for example, ‘Space is not One Dimensional’ (1961) and ‘The Russo-Chinese Debate and the Dialectic’ (1960). Levinas, Difficult Freedom, p 293.

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70 Ibid., pp 296–7. 71 Jacques Derrida, The Gift of Death/Donner la mort, trans. David Wills (Chicago: University of Chicago Press, 1995), p 68. 72 Commission of Inquiry, Final Report, in Ebaan, The Beirut Massacre, p 21. 73 Levinas, Totality and Infinity, p 192: ‘A light is needed to see the light.’ 74 Levinas, Difficult Freedom, p 293. 75 Ibid. 76 For a particularly interesting analysis of and ultimately insistence upon this incommensurability in a legal context, see Marinos Diamantides, ‘Ethics in Law: Death Marks on a still life’, (1995) 6 Law and Critique 209–28; and The Ethics of Suffering. 77 Derrida, ‘Violence and Metaphysics’, pp 185, 189. 78 Quoted in Simmons, ‘The Third’, p 97. 79 Caygill, Levinas and the Political, pp 144–5. 80 Levinas, Difficult Freedom, p 290. 81 Roberts, ‘Rethinking Justice’. 82 Indeed, it is frequently the case that spokesmen for the Israeli government complain that they are held to higher standards than other countries. This, for Levinas, was precisely the point. The State of Israel, through its supplement, the religion of Israel, was given a conscience as well as a government: see Levinas, ‘The State of Israel and the Religion of Israel’; Caygill, Levinas and the Political, pp 175–6. 83 Simon Critchley, The Ethics of Deconstruction: Derrida and Levinas, 2nd edn (Oxford: Basil Blackwell, 1999), pp 194–7. 84 See Dan Kurzman, Soldier of Peace: the life of Yitzhak Rabin, 1922–1995 (New York: HarperCollins, 1998). 85 Levinas, Otherwise Than Being, p 117. 86 Adam Zachary Newton, The Fence and the Neighbor: Emmanuel Levinas, Yeshayahu Leibowitz, and Israel Among the Nations (Albany: SUNY Press, 2001). 87 Levinas, TI, p 51.

Chapter 9

Who has the right to die? Drucilla Cornell

1. The law’s inability to recognise a right to die After suffering from an incurable lung disease for over twenty years, my mother Barbara June Cornell exercised her right to die by following a suicide recipe provided by the Hemlock Society. She ingested barbiturates prescribed by her doctor with the precise amount of alcohol described in the recipe. My mother insisted that she was exercising her right to die, knowing full well that what she was doing was illegal. In 1997, the year before her death, the Supreme Court of the United States in Washington v. Glucksberg had upheld as constitutional the State of Washington’s prohibition on assisted suicide. Three people with illnesses that left them in agony and desperate to die had joined with four doctors to challenge the constitutionality of Washington’s ban that kept doctors from legally helping the terminally ill to end their lives. They all died before their case ever reached the Supreme Court. Presumably, as my mother thought, they died with all the pain and suffering from which they had prayed for relief. Or so thought my mother. Their plight haunted her and she worried that other men and women would be deterred from taking action that was against the law. She was intent on asserting her moral right above and beyond the law; to make an example of herself so as to give courage to other ‘law abiding people’. She read the decision carefully; it morally enraged her. While the judges in the various opinions were stumbling over the meaning and definition of the right to die and what it might mean to legalise it for everyone, my mother had already succinctly defined the moral right: ‘I become my own person in the manner of my death, in the way I make it my own, my own death.’ This essay is but an elaboration on my mother’s insight into the moral basis of the right to die. And because it is that, an elaboration on her insight, I feel compelled to take back a statement I wrote in the book she asked me to write. On the day of her death my mother asked me to write a book witnessing to the dignity of her death, make it understandable to her bridge class, and to dedicate it to her. In the preface of that book I wrote that it would have to fall to others, others whose mother had not exercised the right to die, to defend the right as such. As I understood

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it I had been asked for an act of devotion in my mother’s request for the book, an act of devotion that demanded that I judge that she had done the right thing for her. I had to leave aside the impulse to rationalise, in retrospect, the moral right to die. As Levinas movingly writes, ‘[r]esponsibility for the other man, being answerable for the death of the other, devotes itself to an alterity that is no longer within the province of re-presentation. This way of being devoted – or this devotion – is time. It remains a relationship to the other as other, and not a reduction of the other to the same. It is transcendence.’1 The time of devotion can take many forms, but the demand that is put on the one chosen to be by the side of the other in their death is that they take the time to do that as the person asks of them. As her chosen assistant in the ritual of her death, as her chosen witness to the dignity of her death, I felt that devotion called me to declare for her as she claimed this right and fearlessly carried out what it demanded of her as she saw it. I felt I had to do this as a matter of the justice that she demanded of me. Again to quote Levinas here: ‘[j]ustice would not be possible without the singularity, the unicity of subjectivity. In this justice subjectivity does not figure as formal reason but as individuality: formal reason is incarnate in being only in the measure that loses its election and its equivalent to all others. Formal reason is incarnate only in a being who does not have the strength to suppose that, under the visible that is history, there is the invisible that is judgment.’2 As I listened to the tapes I made of our last conversations, however, it was only too clear that my mother also wanted me to bear witness to the rightness of her decision. For in her death she had chosen to vindicate nothing less than that rightness and her definition of it, over and against the Supreme Court’s decision. The majority opinion in Washington v Glucksberg written by Chief Justice Rehnquist, defines the right to die as the right to commit suicide with another’s assistance. He then forcefully argues that a right so defined runs afoul of seven hundred years of history of Anglo-American common law, which sternly and forthrightly forbids suicide, considering it self-murder. This history is legally relevant because for Rehnquist, the Court has a two-stage procedure for determining what are fundamental liberties under the due process clause of the Fourteenth Amendment. First the court looks exactly to that history to determine whether or not the liberty interest at stake is ‘deeply rooted in this Nation’s history and tradition’.3 Second, the Court demands a careful description of the asserted liberty interest. Rehnquist sarcastically recites a series of definitions of the right to die in the amici briefs and in the Ninth Circuit en banc decision which struck down the Washington prohibition: ‘the right to die’, ‘the right to choose a dignified and humane death’, and ‘the liberty to shape death’. He concludes that the only

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sense one can make of these vague definitions is that they seek to demand an open-ended right to suicide which includes a right to assistance in doing so. His conclusion is that such a broadly defined right runs afoul of the second requirement for a ‘careful description’ and that the liberty interest in the ‘right to die’ can be effectively distinguished from the interest in refusing medical care, which the Court had found constitutionally supportable, and which some of the amici briefs defending the right to die held out as precedent for the recognition of the liberty interest in such a right. Rehnquist, for example, distinguished Cruzan, which did hold for the right to refuse lifesustaining medical treatment as follows: ‘In Cruzan we considered whether Nancy Beth Cruzan, who had been severely injured in an automobile accident and was in persistive vegetative state, “ha[d] a right under the United States Constitution which would require the hospital to withdraw life-sustaining treatment” at her parents’ request.4 We began with the observation that “[a]t common law even the touching of one person by another without consent and without justification was battery.”5 We then discussed the related rule that “informed consent is generally required for medical treatment.”6 After reviewing a long line of relevant state cases, we concluded that “the common law doctrine of informed consent is viewed as generally encompassing the right of a competent individual to refuse medical treatment.”7 Next we reviewed our own cases on the subject, and stated that “[t]he principle that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment may be inferred from prior decisions.”8 Therefore, “for purposes of [that] case we assume[d] that the United States Constitution would grant a competent person a constitutionally protected right to refuse lifesaving hydration and nutrition.”9 We concluded that, notwithstanding this right, the Constitution permitted Missouri to require clear and convincing evidence of an incompetent patient’s wishes concerning the withdrawal of lifesustaining treatment.’10 Some critics have forcibly argued that the attempted moral distinction Rehnquist draws here between refusing medical treatment and actively killing oneself cannot be meaningfully sustained. Instead what is crucial is whether the action taken was meant to hasten death. If a person refuses treatment in order to die, then that can reasonably be considered a form of assisted suicide.11 Further, Rehnquist’s reliance on the common law of battery also does not seem convincing as an argument that the legal history of refusal of medical care necessarily precludes the expansion of the liberty interest to cover the right to die. Justice Stevens disagrees with Rehnquist’s interpretation of that history in his concurring opinion. Justice Stevens writes, ‘Thus, the common law right to protection from battery,’ which included the right

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to refuse medical treatment in most circumstances, did not mark ‘the outer limits of the substantive sphere of liberty’ that supported the Cruzan family’s decision to hasten Nancy’s death.12 Those limits have never been precisely defined. They are generally identified by the importance and character of the decision confronted by the individual.13 Whatever the outer limits of the concept may be, it definitely includes protection for matters ‘central to personal dignity and autonomy’.14 It includes, ‘the individual’s right to make certain unusually important decisions that will affect his own, or his family’s destiny. The Court has referred to such decisions as implicating “basic values”, as being “fundamental”, and as being dignified by history and tradition. The character of the Court’s language in these cases brings to mind the origins of the American heritage of freedom – the abiding interest in individual liberty that makes certain state intrusions on the citizen’s right to decide how he will live his own life intolerable.’15 Justice Stevens’ conclusion is that there is a liberty interest at stake even if it cannot be interpreted as an ‘open-ended right to commit suicide’.16 It is the definition of the right as defined by the majority that Stevens rejects. Drawing an analogy to the death penalty that the State of Washington accepts, Stevens argues that the state’s recognition of the sanctity of human life does not lead to the conclusion that it must always be preserved. Instead, ‘the state must acknowledge that there are situations in which an interest in hastening death is legitimate. Indeed, not only is that sometimes legitimate, I am also convinced that there are times when it is entitled to constitutional protection’.17 For Stevens, the history of prohibitions that Rehnquist summarises only addresses the ‘open-ended’ right. Terminally ill patients can be distinguished without being devalued from other persons who might want to commit suicide because, as Stevens points out, such people are faced ‘not with the choice of whether to live only how to die’.18 Stevens ultimately concurs, however, with the majority opinion that the statute in Washington is not invalid on its face. Yet given the importance of the liberty interest involved he leaves open the possibility that a more particularised challenge to a statute that refused patients the right to hasten their death might succeed. Justice O’Connor is also troubled by Rehnquist’s use of a broad brush in defining the right at stake in the case. As O’Connor writes: ‘[t]he Court frames the issue in this case as whether the Due Process Clause of the Constitution protects “a right to commit suicide which itself includes a right to assistance is so doing”,19 and concludes that our Nation’s history, legal traditions and practices do not support the existence of such a right. I join the Court’s opinions because I agree that there is no generalized right to “commit suicide”. But respondents urge us to address a narrower question whether a mentally competent person who is experiencing great suffering has a constitutionally cognizable interest in controlling the circumstances of his or her imminent death. I see no need

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to reach that question in the context of the facial challenges to the New York and Washington laws at issue here’.20 O’Connor ultimately thinks that a more narrowly defined liberty interest should be hammered out in the state legislatures, in part because of the difficulties of defining that interest narrowly enough so that it would remain within acceptable parameters. For O’Connor a sufficiently narrow liberty interest would have to include mechanisms that would effectively address what for her are the overriding state interests ‘in protecting those who are not truly competent or facing imminent death, or those whose decisions to hasten death would not be truly voluntary’.21 But it is also clear that she thinks that the very issue of defining who is a terminal patient is a complicated one. And she is right to do so. My mother’s doctors disagreed not only over whether or not her illness was terminal but what a terminal illness itself was and even who should decide what it meant for an illness to be terminal. The doctor who ultimately gave her the pills did so because he was convinced that the ultimate decision of when her illness had become terminal had to lie with my mother. Given the precariousness of this definition, O’Connor wants it to be debated as fully as possible in state legislatures. Until these debates take place the prohibitions in the Washington statute should be held to meet constitutional muster. Ultimately, Stevens’ debate with O’Connor over the issue of whether the actual definition of the right to die should be left in the hands of state legislatures actually underscores a disagreement over the definition of the right itself. O’Connor is more concerned than Stevens with how to distinguish those persons who have the right, that is the terminally ill, from those who do not and therefore must be protected from committing suicide. Stevens is also less convinced that there are not better and even more effective ways than outright prohibition of assisted suicide for the state to protect its legitimate concerns, concerns that range from protecting the integrity of the medical profession to preventing the abuse of the right in the hands of incompetent patients or in their surrogates who do not have their best interest at heart. But his real difference with O’Connor has to do with his insistence on how people are very different when it comes to making this kind of terribly personal decision. And this means for Stevens that the right has to have a subjective component that allows the dying person to decide for herself when her illness is terminal, her pain unbearable, and her continuing existence a torture. As Stevens writes: ‘Allowing the individual, rather than the State, to make judgments about the “quality” of life that a particular individual may enjoy does not mean that the lives of the terminally ill, disabled people have less value than the lives of those who are healthy. Rather it gives proper recognition to the individual’s interest in choosing a final chapter that accords with her

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story rather than one that demeans her values and poisons memories of her’.22 Stevens’ definition comes closest to the definition of the liberty interest defended in the philosophers’ brief that was presented as an amicus brief to the Supreme Court. The philosopher’s brief argued that at the very heart of the notion of a liberal state is the idea that individuals and not the state should be free to make the most basic decisions about what is good for them unless such decisions actually infringe on the freedom of others to do the same. How one dies, at least according to their argument, is one of those crucial decisions inevitably caught up in evaluations as to how different people think they should live and die, since death as the end of life is part of the person’s life story. ‘Most of us see death – whatever we think will follow it – as the final act of life’s drama, and we want that last act to reflect our own convictions, those we have tried to live by, not the convictions of others forced on us in our most vulnerable moments.’23 The brief argues that the state’s concern about possible abuses of the right, whether in the form of a troubled teenager’s easy access to lethal pills or patients succumbing to pressure from their families, could be handled by reasonable procedures formulated to prevent such abuses. The brief does not offer a definition of terminal that answers O’Connor’s worry that it is extremely difficult to define, given modern technology, and that without such an accepted definition abuses cannot be adequately outlined. The question inevitably arises: what if someone experiences their depression as ‘terminal’, as Virginia Woolf clearly did? Nor do the philosophers in their brief defend a notion of the person that effectively justifies the importance of control over how one dies, in the sense that we need to narrate and imagine for ourselves the significance of our death. They assume that it is enough to argue for the liberal proposition that the state should allow individuals to make crucial decisions about how they understand what is good for them and that death is one of those decisions. But the right they actually defend is not for everyone, but only for terminally ill patients, hence the problem arises as to what makes this group an exception to the overall rule against suicide embodied in the Anglo-American legal history Rehnquist so painstakingly rehearses. There is a serious and real problem of how one limits the respect for subjectivity that is the very basis of the right. O’Connor can only see a solution to this problem by giving the right over to the ‘will of the people’ who can then hammer out its limitations. But as Stevens points out, this goes against the subjective nature of the right which necessarily recognises that people will define very differently the meaning of being terminally ill. And yet once we allow the patient to decide that their life is unbearable because of illness, how do we, in a principled way, define the limits on the right so as to be consistent with its justification, which is that very respect. Both Stevens and the philosophers in their brief never argue that the right to die is reducible to the

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desperate need to escape pain but, stems, instead, from the need to make sense of one’s life by making one’s death one’s own. Despite his sarcasm which seems so disrespectful of the plight of the terminally ill, Rehnquist is correct in noting that definition of the right, at least as it has been defended and justified, would seem to have to be open-ended and include, as integral to it, the right to assistance.

2. The right to die and philosophy The long history against suicide to which Rehnquist refers is also deeply rooted in Anglo-American political philosophy. The transfer of the means of violence, including the means of death, to the state in the name of the protection of the lives and security of its citizens is basic to divergent versions of social contract theory. Thomas Hobbes of course famously wrote that in an imagined state of nature, human beings would be left in a war of all against all. The limitations on our liberty, including our liberty to engage in violence with one another, are acceptable because they guarantee our survival. Thus, allowing self-murder would disrupt the logic of the exchange that is the basis of the imagined social contract. It is precisely the disruption of this logic that is of concern to the judges. If we cannot turn the right into an exception that is carefully and effectively delineated, then the exception threatens to not overcome just one rule, but the basic principle of the social order itself. Kant famously wrote against Hobbes that the social contract is not based on our recognition of the need to survive. The social contract is acceptable in that it expresses in law three moral relationships: the freedom of every member of a society as a human being, his equality with every other as a subject, and the independence of every member of a commonwealth as a citizen. But freedom for Kant must not include the right to suicide. Kant’s position on suicide is that one must respect one’s humanity, which is not based in our actual existence as human beings but in our moral freedom. Yet moral freedom only enters this world through us and only stays in the world as long as we do. Therefore, every individual has a duty to his or her humanity to stay alive until death takes him or her. To quote Kant, ‘A human being cannot renounce his personality as long as he is a subject of duty, hence as long as he lives; and it is a contradiction that he should be authorised to withdraw from all obligation, that is to freely act as if no authorisation were needed for this action. To annihilate the subject of morality in one’s own person is to root out the existence of morality itself from the world, as far as one can even though morality is an end in itself. Consequently, disposing of oneself as a mere means to some discretionary end is debasing humanity in one’s person (homo noumenon) to which the human being (homo phaenomenon).’24 I am not sure that Kant would have made an exception for the terminally ill, at least not on the basis that they were suffering. Kant is stern, insisting that

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the meaning of our life lies in our moral freedom. We could be required to endure the suffering of illness because it is only as a phemomenal being that we suffer. Our ‘higher self ’ calls us to stay alive in the name of our fidelity to our humanity. For Kant suicide is always a case of self-love, the very self-love that usually promotes life. As a result, Kant argues in the Ground Work of the Metaphysics of Morals, the moral right to die could never be turned into a maxim that one could will as if it were a law of nature. A law that would destroy a life on the same basis that it propels us to live would be contradictory. Thus, if we are to bring Kant to the side of the right to die, we must make an argument from the moral need for such a right. We cannot base it on our physical suffering. An argument from compassion is not enough for Kant, because even if we cannot control our bowels, we are still morally free. The philosophers’ brief often conflates dignity with a sense of feeling dignified; we need to die when we have lost control over our bodily functions, when we feel ourselves to be helpless, when we are in pain. These are all reasons from what Kant would have called self-love. If we have the right to shape our death as crucial to what it means to claim ourselves as a person – and this is a different claim than the one that asserts the need for escape from pain – then we need to rethink the ideal of the person as this demands that we rethink death. At first glance Heidegger, with his themes of existential authenticity, would seem a natural ally in the effort to affirm a right to death. As we will see, however, he both is and is not. The central critical imput of his philosophy to the question at hand derives from the centrality it accords to death and its relationship to freedom. Heidegger famously tackled the philosophical silence over death, caused by the realisation that death cannot be known since it does not exist, by arguing that it is exactly in being toward what cannot exist that we find the freedom of ‘man’ to be Dasein, the being that puts at stake nothing less than the question of the being of existence. A Dasein that announces itself to itself as ‘being-towards-death’ does so as mine-everytime (Jemeinigkeit). Thus, individuation and freedom from the control of the ‘they’ rests on enduring our being-towards-death and, with it, the possibility of being differently in our inevitable historicity. Our being-in the-world qua being-toward-death, toward the possibility of our own non-being, pulls us toward the future of what we cannot know, death itself. To quote Heidegger, ‘With Death, Dasein stands before itself in its utmost potentiality for being. This is a possibility in which the issue is nothing less than Dasein’s being in the world . . . If Dasein stands before itself as this possibility, it has been fully assigned to its own most potentiality for Being. When it stands before itself in this way, all its relations to any other Dasein has been undone.’25 For our purposes here I wish to stress that Heideggerian authenticity analyses a mode of being in the world in which I anticipate death in the courage of anxiety, breaking the hold of the comforting but ‘inauthentic’ evasions of everyday social life. As Heidegger writes, ‘. . . the particular Dasein in its everydayness is disburdened by the “they”. Not only that; by this disburdening it of

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its Being, the “they” accommodates Dasein if Dasein has any tendency to take things easily and make them easy. And because “they” constantly accommodates the particular Dasein by disburdening it of its Being, the “they” retains and enhances its stubborn domination.’26 This departure from the ‘they’ (Eigenglichkeit) is an event or, more accurately, an advent in the world of a being in which being, not being-with, is at stake. Understanding the event of being as being in the world of Dasein which foregrounds the question of its being, therefore, shifts philosophy from theories of ‘man’ to existential analysis. We only understand the event of this being through adverbial modalities that Heidegger calls ‘existentials’: being-there-in-theworld, being-with-others, being-for-death. The analysis of these existential modalities is what existential analysis offers as a more sophisticated alternative to any theory of what or even who man is. Yet existentialism is still a humanism, for it is only Dasein who can be-for-death because it is only Dasein that can name death even as it cannot know death. Animals perish. Only Dasein dies. Again to quote Heidegger, ‘[m]ortals are they who can experience death as death. Animals cannot do this. But animals cannot speak either. The essential relation between death and language flashed up before us, but remains still un-thought.’27 In sum, Heidegger’s existential analysis gives us the essence of ourselves as to how we are toward death, which awaits us as both that which is not and as that which marks our being toward a beyond of being, as possibility to name this emptiness, this beyond being knowing that it is only a name, us imagining what logically is not. Yet, while nothing could be more important to us than how we die, Heidegger resisted, indeed vehemently resisted, giving meaning to death precisely because of its radical un-knowability. Thus, there can be no ethics of death for Heiddeger. It is precisely this that prompted Levinas’s rebellion against the severity of Heideggerian authenticity. Death is other but we are with one another in the otherness of death. In Heiddeger’s being-towards-death, Levinas finds an unalienable belonging to a self while, for Levinas, death points us to the Other who can come to us as a threat or greet us in peace. As Levinas beautifully writes: ‘[d]eath threatens me from beyond. This unknown that frightens, the silence of the infinite, spaces that terrify, comes from the other, and this alterity, precisely as absolute, strikes me in an evil design or in a judgment of justice. The solitude of death does not make the Other vanish, but remains in a consciousness of hostility and consequently still renders possible an appeal to the Other, to his friendship and his medication. The doctor is an a priori principle of human mortality. Death approaches in the fear of someone and hopes in someone . . . A social conjecture is maintained in this menace. It does not sink into the anxiety that would transform it into an annihilation of nothingness. In the being for death of fear I am not faced with nothingness, but faced with what is against

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me, as though murder, rather than being one of the occasions of dying, were inseparable from the essence of death, as though the approach of death remained one of the modalities of the relation with the Other.’28 We are pushed to the other in our vulnerability. As Levinas reminds us, peace is such a burning necessity because we lay vulnerable before the ravishes of the other in war. A more profound kind of being together can arise out of this encounter with the other, which is fated to be ethical. We do not choose to be ‘ethical’ – we can do good, we can do bad but we cannot not decide to be in the ethical relation. We are always with others and how we are with others is what shapes us, indeed constitutes us, if I may risk the word. The other presents a demand on us and never more powerfully than at the hour of her death. Levinas in his later work re-interprets Miteinandersein as an alternative to the sternness of Heidegger, and indeed, of Kant: ‘Thus being there, in which being is always at stake, would appear to be in its very authenticity being for the other. The there of being there is world, which is not the point of geometrical space, but the concreteness of a populated place in which people are with one another and for one another. The existential of Mitandersein is a being together with others in the reciprocity of relationship. Did I go too far, in my opening remarks in affirming the peace and love of one’s fellowman as an alternative to the severity of the authentic?’29 The doctor is redefined here as the carer who assists the one who is hoped for. It is not much to stretch Levinas to encompass the doctor being with the dying patient, caring for him by offering pills, or other means of medical assistance, if this is the treatment asked for. The social conjecture is that, given our vulnerability, we are together as each other’s carer in ‘our dying’. So we should throw down the gauntlet to Rehnquist; the right to die has integral to it a right to assistance and not only by doctors but also by loved ones. Even if we are always already dying together, and this is our fate, our actual dying is singular. No one can die for the other. No one demises in our place. Barbara June Cornell demised on 29 August. Her last words to me were: ‘You have taken me as far as you can go, I have passed on.’ I remained behind; I did not demise; not on that day. My mother left me behind, not only to continue to live but to witness the dignity of her death. I imagine her having passed on, already gone, and yet I am still testifying to it, and therefore still with me at that last moment which I imagine to be beyond death, in Derrida’s words: ‘At the same instance, but the tip of the instant is divided here: I am dead and I am not dead; death can no longer happen to me; it is prohibited. It is prohibited. Hence the experience of immortality.’30 That is how I imagine her. And yet how I imagined her was not separable

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from how she imagined herself abiding with death as she did in her last weeks of her life. But that was her. Derrida stresses the word demise in German, Ableben, to emphasise that no one demises in the place of the other. As Derrida writes: ‘[w]hen Levinas accuses Heidegger of privileging, in the existence of Dasein, its proper death, what is at stake is Ableben. Indeed it is in dying proper and properly speaking that “mineness” is irreplaceable, that no one can die for the other, in the experience of the hostage or the sacrifice, in the sense of the place of the other and that no testimony can testify to the contrary. But conversely, when Levinas says and thinks that against Heidegger he is saying the death of the other is the first death and it is for the death of the other that I am responsible to the point of including myself in his death. This may be phrased in a more acceptable proposition. “I am responsible for the other insofar as he is mortal”. These statements either designate the experience that I have of death of the other in demise or they presuppose, as Heidegger does, the co-originary MitSein and Sein zum Tode. This co-originary does not contradict, but on the contrary presupposes a mineness of dying or being toward death . . .’31 We demise and no one can be in our place. But demising, dying is a process. There is the end of our demise, but there is also the experience of demising as a being toward death but also of illness. Since death cannot be known, what we are left with is this process. Dying properly, for Heidegger, is being toward death, which does not and cannot imply an interest in how we die. This dis-interestedness in authenticity is exactly what Levinas rebels against. But if, as Derrida reminds us, there is no death as such, death as such is exactly what cannot be. How we live out our demise, how we name it, is crucial even in Heidegger. How we are toward death manifests itself in our narrations of the process of our demise, how we imagine what is before us, and how we are there before it. We can now understand the Supreme Court’s stumbling before an enunciation of a right that demands a co-existing right of assistance and at the same time leaves the dying person some power to shape his or her own death. My death can only become mine in my own way precisely because we do not know what death is. All we know are the stories of the dying, of how and who they imagined themselves to be as they demised. Death cannot be except in the imaginary domain of the person.32 When we announce that we are out of time, that our life is no longer ours and therefore we wish to end it, we are still projecting that I that dies even in the most seemingly paradoxical act of extinguishing the ego and the body in the name of that I. To return to my mother’s definition: ‘I become my own person in the meaning of my death, in the way I make it my own.’ There are under this formulation many ways to die with dignity, no one way that can be consistent with personhood. But was this one a proper death? I cannot know

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that. I can only know her dying and testify to her dignity in so doing. Dignity includes much more than the facts of her death; it includes how she was toward death but, since there is no death, I can testify only to the way in which she told of her dying, how she staged her last hours, how she imagined herself at her last moments. But my mother did not live beyond her death. She could not tell of how she was in death. Only the witness can tell the story. That Derrida tells us ‘nothing is certain in this testimony nothing is observable; everything only maybe’ does not relinquish the witness from her responsibility to testify.33 My mother died with dignity. We need each other at the time of our death if we are ultimately to give meaning to our dying together. It cannot be done alone. And this is why Levinas tells us, ‘The priority of the other over the I, by which the human being there is chosen and unique, is precisely the latter’s response to the nakedness of the face and its mortality. It is there that the concern for the other’s death is realised and that dying for him, dying his death takes priority over authentic death. Not a post mortem life, but the excessiveness of sacrifice, holiness in charity and mercy. The future of death in the present of love is probably one of the original senses of temporality and beyond all metaphor.’34 Derrida has carefully shown us through a life’s work the difficulty of keeping an absolute line between the ontological and the ethical. His deconstructive intervention leaves open the possibility that we can begin to articulate an ethic that can allow for the right to die, including an analysis of Mitandersein that goes beyond traditional Anglo-American notions of the social contract. Rehnquist is right that the right to die does not sit well with those. Are there policy implications of this analysis? We cannot wait for the right to die. There are certain moral rights that are basic to how we claim our own person. The right to die with assistance is one of them. There can be no neat and definitive answer to O’Connor’s question about when an illness becomes terminal, precisely because different people will have different answers to this question. There are real tensions between the protection of subjective agency upon which the right rests and attempts to justify itself and other duties that states have to their citizens. Of course state legislatures can and should seek to prevent abuses of the right. Law here would once again be an imperfect approximation of justice. But there is a deeper point. We need a richer conception of the social bond to feel at ease with this right, one that goes beyond the inherent individualism of liberal social contract theory. ‘The future of death in the presence of love;’ I leave Derrida with the last word as to what social bond might allow us to risk this ‘right’ to die. ‘The compassion for suffering humanity, thus for a passion of death, is a bond without bond, the disjointing, the dis-adjusting of a social bond that binds only in truth, to death and on the condition of death: on the condition of mortal being.’35

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Notes 1 Emmanuel Levinas, Entre Nous: Thinking-of-the-other (New York: Columbia University Press, 1998) p 173–4. 2 Emmanuel Levinas, Totality and Infinity (Pittsburgh: Duquesne University Press, 1969) p 246. 3 Washington v Glucksberg, 521 U.S. 702 (1997). Syllabus, p 1 of 4. 4 Cruzan, 497 U.S., 269 5 Ibid. 6 Ibid. 7 Ibid., 277. 8 Ibid., 278. 9 Ibid., 279; see id., 287 (O’Connor, J, concurring). 10 Id., at 280–1; Washington v Glucksberg, 521 U.S. 702 (1997). Justice Rehnquist, opinion of the court, p 5 of 5. 11 See ‘Assisted Suicide: The Philosophers’ Brief,’ New York Review of Books, March 27, 1997. 12 Planned Parenthood of Southeastern Pa. v Casey, 505 U.S. 833, 848 (1992). 13 Whalen v Roe, 429 U.S. 589, 599–600 n 26 (1977). 14 Casey, 505 U.S., at 851. 15 Fitzergald v Porter Memorial Hospital, 523 F. 2d 716, 719–20 (CA7 1975) cert. denied, 425 U.S. 916 (1976); Washington v Glucksberg, 521 U.S. 702 (1997). Justice Stevens, concurring opinion, p 3 of 5. 16 Ibid., p 2 of 5. 17 Ibid. 18 Ibid., p 4 of 5. 19 ante, at 18. 20 Washington v Glucksberg, 521 U.S. 702 (1997). Justice O’Connor, concurring opinion, p 3 of 4. 21 Ibid. 22 Washington v Glucksberg, 521 U.S. 702 (1997), Justice Stevens, concurring opinion, p 4 of 5. 23 ‘Assisted Suicide: The Philosophers’ Brief ’, p 44. 24 Immanuel Kant, Practical Philosophy, trans. and ed. Mary Gregor (Cambridge: Cambridge University Press, 1996) p 547. 25 Martin Heidegger, Being and Time, trans. John Macquarrie and Edward Robinson (New York: Harper and Row, 1962) p 294. 26 Ibid., p 165. 27 Martin Heidegger, On the Way to Language, trans. Peter D. Hertz (New York: Harper, 1971) p 107. 28 Emannuel Levinas, Totality and Infinity, p 234. 29 Emannuel Levinas, Entre Nous, p 213. 30 Jacques Derrida, Demeure: Fiction and Testimony, (Stanford: Stanford University Press, 2000) p 68. 31 Jacques Derrida, Aporias, (Stanford: Stanford University Press, 1993) p 39. 32 See Drucilla Cornell, The Imaginary Domain: Abortion, Pornography, and Sexual Harassment, (New York: Routledge, 1995). 33 Jacques Derrida, Demeure, p 69. 34 Emmanuel Levinas, Entre Nous, p 217. 35 Jacques Derrida, Demeure, p 69.

Chapter 10

Levinas and critical legal thought: imbroglio, opera buffa, divine comedy? Marinos Diamantides

The crisis of humanism . . . has its source in the experience of man’s inefficacity, which the very abundance of our means for acting and the extent of our ambitions exhibit. In the world where everything is in its place, where the eyes, hand, and foot can find them, where science prolongs the topography of perception and praxis even if it transfigures their space . . . the counter-sense of the vast enterprises which have failed, in which politics and technology end up negating the projects that conducted them, teaches the inconsistency of man, plaything of his own works. The unburied dead of wars and extermination camps make one believe the idea of a death without morning after and render tragic-comic the concern for oneself and illusory the pretension of the rational animal to have a privileged place in the cosmos and the power to dominate and integrate the totality of being in self-consciousness. . . . Psychoanalysis attests to the instability and fallacious character of the coincidence with oneself in the cogito. [This coincidence], in which, since Descartes, being is, is seen by the other (and, after the fact, by the subject himself ) to be . . . worked over by impulses, influences, and a language, which compose a mask called a person, no one [la personne ou personne], or at best a personage of purely empirical, consistency. Henceforth the world founded on the cogito appears to be human, all too human . . . clear of all ‘ideology’, without human traces.’ Emmanuel Levinas, Humanism and An-archy.1 ‘[M]odern anti-humanism is perhaps not right in not finding in man, lost in history and in order, the trace of . . . [a] . . . pre-historical and an-archical saying.’2

1. Foolish excellence These quotes sum up why Levinas’s ethics as first philosophy can be so theoretically irresistible (or hard to ‘shake off ’, depending how you see it). On the one hand he conceded that contemporary subjectivity appears only in view of its own disappearance – eclipsed as it were by the ‘very abundance of

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our means for acting and the extent of our ambitions’; on the other hand this situation is described in terms of experience and in particular as the experience of a fracas: in a world ‘where everything has its place’ the tragic– comic idea of ‘man’ is dead weight; ‘inefficacity’ in the midst of efficiency. Whether we ignore or heed this experience respectively determines whether we declare ‘man’ forever ‘lost in history and in order’ and, by the same token declare the ‘right’ of the world to be free of tragic–comic readings; or, whether we remain sceptical over the efficacy of such declarations and, by the same token, we declare the right of humans to trace in their speech a ‘pre-historical and an-archical saying’ that is irreducible to language, history and order.3 This is a typical example of the ability of Levinas to look a cynic in the face and discover a hint of unease in the stern façade that gives it away as a cover of scepticism. As if anticipating bio-political critique Levinas acknowledged that as the new order is ‘neither human nor inhuman’4 anti-humanist theory is right to assume the ‘purely operational and provisional role of man in the unfolding and manifestation of a set of terms that form a system’.5 He added, however, that as the crisis of humanism entails the singular experience of ‘witnessing the ruin of the myth of man [as] an end in himself,’6 ‘we see man being born again out of the inanity of man-as-principle, the inanity of principles, out of the putting into question of freedom understood as origin and the present.’7 Hence Levinas set himself the task to ‘find man again in this matter and a name in this anonymousness,’8 a task that entailed an abuse of language. To the existentialist truth that existence precedes essence Levinas added his peculiar ‘materialist metaphysics’ whereby being and becoming have a ‘hither side’, a ‘reverse side’, which is ‘pre-originary’, a ‘passivity more passive than the passivity involved in receptivity’ and which designates a subject ‘outside of being’, but ‘in itself ’.9 These are hard ideas to master but then again it is not as master that man witnesses his own demise. In Humanism and Anarchy Levinas posited an ‘inwardness’10 of being which is neither anonymous nor yet has a name, neither nothing nor yet becoming. His earlier, inaugural,11 essay On Escape helps us relate to this more directly: dasein was analysed in the mode of nausea, a nausea that comes with the feeling that one has to either be or not be and a weariness that comes with the feeling that in being and becoming one remains enchained to the there is of anonymous existence.12 Being and nothingness were described as mere phases of the there is which horrifies being directly: notwithstanding its verbality, being is defectively absolute and self-referential, because self-presence is experienced as riveting, to the point of feeling like an ‘enchainment’, with all the force of a contract even if one never entered into a contract; and, therefore, it entails a suffering and, ipso facto, an impossible yet irreducible desire to escape. Nauseating and selfshamed,13 it is the experience of plenitude, not lack, that marks being’s most intimate relationship with itself, forcing it to reflect on the brutal nature of its

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perfect, self-referential existence, and thus, on the dramatic dimension of being-for-itself, one side of which is the tragic irony of egoism. Decades after On Escape was published Levinas repeated these views when interviewed by François Poirié.14 Moreover, in the second chapter of Existence and Existents (‘the World’) Levinas argued that hedonist or eudemonist affectivity and activity is being’s ‘naïve and sincere’ attempt to escape.15 Being escapes momentarily by hurling itself ‘in the very depths of incipient pleasure’,16 before realising that nausea returns following satiation ‘when pleasure is broken, after the supreme break . . . being is entirely disappointed and ashamed to find himself existing again’ and, therefore, desiring escape once again.17 In other essays of his, for instance in Reflections on the Philosophy of Hitlerism he analysed this in terms of the experience of pain where the spirit’s opposition to pain is described as a ‘rebellion, a refusal to remain within it and consequently an attempt to go beyond it’.18 In Entre Nous this rebellion is further traced to a sensibility that exceeds sense perception, the subject of which is not one as a psychophysical unity but as the non-interchangeable site of passivity that expresses pure vulnerability and, consequently, an appeal for non-murder and succours.19 It is finally an ‘otherwise than ego’, a subject ‘hostage’ to the absolute other expressed in the face of the particular Other, the subject of responsibility-as-responsiveness that emerges between persecution and obsession by the Other, answerable before it is asked.20 ‘Infinite’ and ‘gratuitous’ responsibility for the Other, therefore, are not abstract duties because they correspond to what we can call being’s ‘affective incontinence’ that anticipates an Other to be hostage to turning nausea into desire. Willing to be-for-an-Other, therefore, is not the opposite but the reverse side of being-for-itself. Elsewhere I have argued that the big question about Levinas’s ethics is whether this desire to escape being-for-itself at the heart of animal being continues to have empirical effects in a global world that unfolds as fastmoving virtual capital where not only a myriad techniques exist to suppress what Levinas called being’s most intimate experience of itself as nauseating plenitude and where profit and expenditures are achieved that go well beyond any necessity but where the very idea of human experience in general seems to distract from the study of the really productive sources of social reality which are impersonal and too abstract to be experienced.21 It is indeed true that Levinas’s early texts were written before anti-humanist theory acquired the degree of sophistication it has today. Thus, Levinas’s thesis in On Escape, for example, was meant to subvert the materialist/idealist divide. Since need does not derive from lack but from plenitude and the desire to escape beingfor-itself, he could both acknowledge the primacy of ‘hunger and thirst’ (the man who is eating is the ‘most just of men’)22 and refuse to make the body the source of all value (presumably, because after eating, the most just of men feels nausea and hence desire to escape the cycle eating–digesting). This explains Levinas’s qualified admiration for both Marxism and liberalism.

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Marxism was credited not for its ‘alleged materialism’ but for its ‘sincerity’ in relation to the problem of hunger.23 Liberalism was discredited in so far as it ‘dupes’ us that there is a thing called ‘human dignity’ even if you are starving or abused but praised as an impossible ‘aspiration’ for an order in which man’s value would be disassociated from natural and societal distribution of forces. Levinas’s later texts, however, entail ideas that are capable of qualifying even the most elaborate versions of anti-humanism as I will argue further below in the section dedicated to critical legal theory. In sum, whenever we stop referring to ‘subjectivity’ in favour of entirely impersonal processes that describe either the material constitution of our bodies or our institution in a symbolic universe, Levinas brings the concept back to describe the irreplaceable site of ‘useless suffering’24 and of a counter power, a power in relation to its own privation, which he terms non-intentional affectivity, symbolized by the infinitely destitute, absurdly suffering ‘face’ and the ‘hand’ that caresses; the caress and the face infinitise the situation. And where we had thought the human as a machine of unlimited desire that constantly bounces off the Real and of its fictitious institution as the basic problem for social order, for Levinas, the kind of desires that we share with our shrinks, and the symbolic/institutional order which must contain them, are mere complications from the unilateral obsession of the face-to-face. Consider Levinas’s take on law and justice. Levinas infamously formalised the question of ‘justice’ in terms of the multiplicity of singular Others giving rise to the need to represent, calculate, etc. While many see the non-squaring of infinite ethical responsibility in the face-to-face and the business of finite justice as a real weakness in Levinas’s philosophy, I think this is an arrangement made in (Levinasian) heaven. Like a third lover who shakes up the tired relation of a couple before they either discover that they are already in love with a third or realise that they still love each other, the infamous Levinasian Third asks me to justify my exclusive ethical intimacy with the Other and so, inadvertently, does the bidding of sociality between myself and my Other. Thus, whenever Levinas, rather confusingly, would repeat that that ethical proximity should always supervise the rigours of formal justice I read: ‘thank God – not the God of onto-theology but the God of traditional belief and scripture – that the desire for justice remains unsatisfiable and thus the face-to-face does not complete the cycle from an event of one-sided anarchical ethical opportunism – which is what it is – into, first, Eros and racialism and then marriage and constitutionalism. We can never justify to a third why we are in love with X person or group although we are always bound to try. That is why Levinas’s ethics is anarchistic without becoming a ‘principled anarchy’. The relation of ethics to law is therefore one of scepticism, ambiguity, interruption, questioning and apology as Simon Critchley has argued as early as in his classic Ethics of Deconstruction.25 People may complain that Levinas’s ethics is difficult to translate into ‘principles of justice’ beyond indeterminacy (or, on the contrary, that it is all too tempting among Levinas’s more superficial

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readers to translate it into some principle of beneficence or ‘natural law’). Well, it is because of this terminal indeterminacy that Levinas’s signature concept of the face-to-face as an inherently asymmetrical proto-social relation (unlike Buber’s I–Thou) is secured, as well as his splitting of ethics from morality. If one could complete the transition from Levinas’s ethics to a set of principles of justice – one would have done away with Levinas’s ‘master stroke’: the idea that the secret of subjectivity is the non-indifference between the In-finite and the finite (not: negation; but: non-indifference).26 In sum, Levinas’s ethical subjectivity is what is exposed when the finite subject/object of language (self-referential, absolute being) is struck by the idea of Infinity. But this is neither a traumatic strike nor a path to ethereal ‘enlightenment’ – it is just a jolt! It is as if Infinity arrives ‘before’ the finite can prepare itself to welcome or reject it, love it or hate it – a trauma like no other, hyper-passivity unopposed by activity and not synonymous with inactivity, a ‘monstrosity’,27 a situation of ‘divine comedy’.28 To understand the subject in this way, struck by the idea of Infinity beyond comprehension, as ‘dumbfounded’, as ‘cogitatio not comprehending the cogitatum which affects it utterly’29 is also to understand the subject of radical passivity as capable of disinterested action (capacity here means potentiality, power in relation to its own privation; not: power as capital). Infinity engenders a supreme Desire that is like no other, one that is truly insatiable (remember, hedonic desires in Levinas’s thesis concord with their objects at least in the sense that desiring and the desired are contemporaneous)30 beyond interestedness (in which there is a correlation between subjective appetite and the satisfaction in which it is interested). Such is the desire for the Good which is beyond being and which takes love beyond complacence (pleasure, gratification). Crucially (if, for many people, politically worryingly) this passivity/ capacity is irreducibly operative, transcendental. In this regard when Levinas made provocative generalisations about our age – that is refuting that it is defined by technology for the sake of technology – he ran the risk of appearing quietist to his less avid readers.31 But the philosopher of obsessive, infinite responsibility and guilt for what one has not caused was anything but quietist. While the desire for the ‘Good’ is irreducibly operative the desirable in question is ‘Holy’. God or Holiness are absolutely different to or ‘beyond’ being but, unlike the Platonic One and the Good, they are not ideal. The absolute alterity of the desirable holiness is not due to the finite or sensible essence of experience but due ‘to the structure of all thought, which is correlation’.32 To think God and the Good, therefore, is not to present oneself as ‘interested in the beyond’. It is to be exposed as already implicated, from a time deeper than any past – diachrony – in the dimension of otherwise-thanbeing, namely as being disinterested in being (including the God of ontotheology). To desire the absolutely other as Levinas did is to think without intentionality: an ‘extravagance or hyperbole’ of language for which ontology and phenomenology are ill-suited33 but which is why there is ‘subjectivity in

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being’.34 ‘Subjectivity’ denotes the passivity/capacity of the subject/object of language to be carried to such hyperbolic faith, to be stripped down to a singular incidence of a ‘disturbance of speech’ and thus to act as trace of a ‘time whose moments are no longer related to the present as their term or source’.35 But why call this ‘subjectivity’ the ethical side of being? This is because the absolutely desirable, God, in order to remain absolutely such ‘. . . orders me to what is the non-desirable, the non-desirable par excellence – the other . . .’. In fact, given the custom adopted in this book to differentiate between the absolute other and the particular face of the Other, the term in this passage should rather be spelled as Other. The passage continues: ‘. . . The reference to the Other is an awakening . . . to proximity . . . a responsibility for the neighbour, to the point of substituting for him. [. . .] The desirable is intangible and separates itself from the relationship with desire which it calls for; through this separation or holiness it remains a third person, the he in the depth of the you. He is good in just this eminent sense; He does not fill me up with goods, but compels me to goodness, which is better than goods received.’36 In sum: Levinasian ethics is not about coming to possess moral ‘goodies’ nor about succeeding with one’s good intentions. One desires absolute otherness and all one gets is to serve the Other – infinitely, that is, never well enough and to the unjustifiable neglect of other Others. This is the essence of morality. As Levinas put it: ‘To be good is a deficit, waste and foolishness in a being; it is excellence and elevation beyond being. Ethics is not a moment of being; it is otherwise and better than being, the very possibility of the beyond.’37 A foolish excellence!

2. Levinas’s foolish excellence and legal critique: divine comedy or opera buffa? Let me demonstrate ‘foolish excellence’. As a legal academic in a school associated with ‘critical legal studies’ (CLS), I am all too familiar with such ethical obsession. Let me say from the start that I consider CLS just another human association, by which I mean the result of a series of ethically opportunistic face-to-face encounters tied together by practices of necessary inadequate face-to-Third justifications. CLS is for lawyers who feel they have no voice and yet cannot stop speaking; people who at least suspect that the time of resistance and charity is gone and yet act as rebels in the service of every marginalised, vulnerable Other they can find. Moreover, we are distinguished by a self-perpetuating health. On the one hand we aim for respectability, we repeat the undead doctrines of positive law that allow us to grant ‘qualified law degrees’ and be paid a salary; on the other hand we undermine these doctrines at every opportunity both consciously and unconsciously. On

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the one hand we share Heidegger’s pessimism concerning the implosion of humanism – idealist or realist – whereby man is gradually being eaten up by his own accomplishments and becomes the exclusively outward-looking, interiority-lacking das Man, increasingly in need of policing rather than politics.38 Yet, on the other hand, with the help of thinkers such as Lacan and Derrida, we value the idea that what ‘is’ remains incomplete, contradictory, deconstructible and, therefore, subject to ‘iterability’, in order to create a new sense of political responsibility for the legal scholar: to affirm iteration, to anxiously realise the contingency of history that could be different, and to will it to be different.39 The relative weakness of this Derridean twist is shown when we consider that in my school there are not only colleagues who work with Derrida’s ‘iterability’ but also Luhman’s systems theory, Legendre’s anthropology of institution and Agamben’s bio-political exception. Luhmann’s (biologyinspired) systems theory teaches that autopoiesis alone offers an adequate view of contemporary society as an unstructured and indeterminate detotalised ‘whole’ comprising communicative systems – such as law – and their environments;40 communicative events have, irrevocably, succeeded subjects and actions in the production of social reality. Legendre, equipped with the notion of ‘instituted subjectivity’; theorises modern law’s incapacity to ‘institute subjectivity’; we are left with nothing but the impersonal processes of management of a multitude of desires that are at once unleashed by a permissive liberalism and governed by the empiricist rationalities of behavioural science and economics which are substituted for hermeneutical approaches to society. ‘Subjectivity’, therefore, can only be glimpsed negatively, as lack, in widespread melancholy and in various pathologies. And for bio-political theories – more notably Agamben’s – the misery of man lies in the unavoidable exploitation of life ‘laid-bare’ by ‘instituted life’ and industrialisation, and therefore it no longer makes sense to talk of one man’s responsibility for another except by repeating and performing the (non) sense of extant moral and legal responsibilities, each time instituted in a given community, which, of course, reiterates patterns of exploitation.41 Going back to my Derridean colleagues, their sense of ethical/political responsibility is staked on ‘anxiety’ and ‘affirmation’ both of which presuppose the subjective experience of finitude and, therefore, a sense of time. Whereas, it seems to me, the autopoietic understanding of modern, positive law as communicative system, Legendre’s account of the contemporary destruction of textual institutions such as religion and law by impersonal management which leaves man affectively unintegrated into social order and the bio-political thesis tying law with power in the form of the constant process of bio-political ‘exception’, are meant to signify processes without end, without future, without time and, therefore, without subject if by subject we mean the mortal subject who feels anxiety. Instead of the subject of anxiety what we get in these theses is, respectively, the

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disembodied subject of ‘pure’ reflexivity, the ‘insane’ subject and the subject as bare-life. For these reasons the advertised pleasures of iterability, as basis for the legal critics’ responsibility, must be delinked from anxiety and premised on a different mode of subjectivity-without-subject. A prominent candidate, I want to suggest, would be Levinas’s conception of ‘singular being’ as the unique locus of nausea before the absolutely, inescapably, self-referential character of being and, consequently, as the anarchic being-for-escape towards the absolute other but who has to make do with being hostage to a particular Other. CLS often argues against the injustice suffered by particular Others but it always fails to assemble a set of ‘principles of justice’. In other words I argue that CLS exemplifies a sensibility that proves cynicism deficient while it prevents scepticism from collapsing into paralysis and indifference. Indeed, it is an anomaly that CLS proponents both are sophisticated readers of contemporary social phenomena and continue to claim for themselves a place in the traditional left. As readers they understand no less than Levinas did that, following the death of Man, ‘the reflexivity of the ego is nothing other than the fact of being the origin of the origin’.42 Hence the numerous, sophisticated, social theorists who endlessly repeat that today’s society is thoroughly reflexive: even as there is no longer a Nature or Tradition to rely on, every aspect of life is experienced as something to be learned and decided upon. ‘Pure’ theory aspires to escape this experience; it aspires to second-order observation, to ‘pure’ reflexivity; to unemotional philosophical calculi. But as leftists, CLS proponents opt for the experience of having to decide, of choosing ‘for the sake of the other.’ As such they show that while man is dead, his angelic tendencies – resistance, rebellion, charity – still hover above his dead corpse and perturb pure reflexivity. If that is so, it is no small matter. How can the spirit still desire grandeur in the midst of banality? And how grotesque! If Levinas is factored in then perhaps CLS manifests the persisting ‘interiority’ of man attesting to his own inanity; a man incapable of not being a ‘hostage’ to the other-as-Other and ipso facto capable of anarchic affectivity, of being-for-absurd-suffering and for gratuitous responsibility for absurd suffering; for caressing, not grasping; for providing succours not cure. In fact we critical lawyers are vehicles for the processes we denounce; our relationship to positive law is one of nausea. But in so far as we obsessively speak against injustice without defining justice we echo both Levinas’s philosophy of the body and his ethics. We engage in saying rather than settle for the ‘said’ that law’s legal/illegal distinction produces through us and despite us; our stance points to an excess affectivity – an ‘incontinent’ affectivity – of soul and heart that care not for the fact that the distinctions human/inhuman and even life/death are being obliterated and with them our belief in the value of normativity.43 As such we symbolise ethical excedence with regards to bio-power. Indeed CLS proponents desire infinite responsibility even as we concede

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that institutions such as the Homo Sacer in Roman law and the Muselmann in Nazi pure politics serve as evidence of the possibility of instituting a ‘permanent stratum of de-humanized, de-subjectivized existence.’44 Within the juridico-political order this means the impossibility of transgressing the relationship sovereign/subjects and, by the same token, ridicules all aspiration to escape the absolute claustrophobia of the communauté inavouable of legal subjects who are defined as ever-terrorised incumbents of an indefinitely precarious and revocable mere survival (Kafka’s parable has been de rigueur in jurisprudence classes for some time now). Indeed the Muselmann is the radical refutation of any refutation. He is the point at which claims and rights, titles and entitlements, indeed any normative reference, be they legal or ethical, founded on positivity or charity or whatever principle, stop making sense. But if Levinas is right to claim that man is born again out of the inanity of man-as-principle and in the midst of an order that is neither human nor inhuman, then a question mark appears, anarchically, in the place of the full stop at the end of each of the proliferating bio-political diatribes: is the inescapably dehumanised Muselmann re-humanised in the movement of critical reflection, a reflection that also witnesses – a thought that ‘thinks more than it thinks, desire, reference to the neighbour, responsibility for another’?45 If yes, is not the reflexivity of the nonsense of man-as-principle also a reflection of ‘something completely astonishing, a responsibility that even extends to the obligation to answer for another’s freedom’?46 And if so, is not this reflection less than pure, namely an intimate experience whereby the thinker positions himself as the one who is not yet dehumanised, still shamefully enjoying a relative distance from nonsense, and therefore, capable of saying ‘here I am!’ – even in silence or in the speech that proclaims the reign of nonsense? If so then the theorist shows himself implicated in what Levinas called the ‘imbroglio . . . [of] a relationship to . . . that which is not represented, without intentionality, not repressed’ by which he meant the absolute other who is expressed in the face of the particular Other’.47 To be sure the ontological, legal and moral principles of subjectivity, responsibility and justice are now revealed as illusions, or dreams, the function of which was, as with all dreams, to allow us to sleep; rigorous philosophical calculus awakens us to the unpleasant reality: ‘man’ plays a purely operational and provisional role in the unfolding and manifestation of a set of terms that form a system; with Muselmann the role playing reaches its end, revealing that the ‘actor’ is passive: ‘abandoned’ life. But between dreamy sleep and being awake, there is, Levinas said, the radical passivity of insomnia, where the other affects us otherwise than as trauma, where the Other is neither available nor absent but rather desired, anticipated. In the case of the bio-political theorist awakening to the ‘pure’ – neither human nor inhuman – politics that the figure of the Muselmann points to, this insomnia, this non-intentional affectivity, arguably re-humanises and re-concretises this figure: some one was subjected to this horror and his or her ‘silent voice’ can

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neither be erased nor recuperated. The question is whether the theorist’s affectivity, her being-for-absurd-suffering, signifies the possibility of an anarchic meaning existing despite the inherent absurdity of dehumanised life, a response to a demand for succours that transcends nonsense? Is not the theorist also the obsessive otherwise-than-being-and-non-being that is persecuted even after the de-humanisation of her Other? If so, then the theorist, foreseeing total de-humanisation, is exposed as an anarchically responsible subjectivity, capable of relating to a silent, even disincarnated, Other48 against the facts – consumed by the dehumanised Other even if ‘the ashes of this consummation are not able to fashion the kernel of a being existing in and for itself.’49 ‘Such,’ Levinas wrote, ‘. . . is the consuming of . . . holocaust.’50 In sum, to be one today is to feel exposed as unable to lose oneself entirely in the pure fact of reflexivity as the origin of origin. Dasein is thought in the mode of its affective incontinence or impossibility not to aspire to an impossible infinity.51 Imbroglio, Levinas called it in God and Philosophy – and for that matter one that is not without significance or empirical implications.52 And the would-be cynical legal theorist is not that far off. For example, in the 2000 anniversary issue of Law & Critique – one of a handful of legal journals that publish CLS material – jurisprudential flights of fancy, usually modern and post-modern variations of Kantian ethics of justice and Hegelian ethics of recognition, were branded at once ‘opera buffa’ but also ‘sweet poison’ that tastes like peace but provokes conflict because they generalise particular desires. Moreover such normativist attempts to define ‘justice’ function as anti-theoretical ‘viruses’ obstructing proper theoretical reflection that consists in emotionally sombre philosophical calculi ‘of the uttermost technicality’ of the operations of power. Proper theory, we are told, ‘refuses to recommend anything’.53 Likewise, teaching law critically is exposed in pedagogical conferences as no more than the process of constituting the law student as a kind of ‘human funnel’ the input of which is ‘10,000 legal judgments maybe more’ and lots of theory, while the output is a politically centrist legal bureaucrat who knows law’s inanity but performs it anyway.54 Levinas, however, also dignified this imbroglio as a ‘divine comedy’. Should we go along? Should we be the fools who show faith in (what Levinas called) the particular Other, without the consolations of belief in God, or master signifiers or (what psychoanalysis calls) the ‘Big Other’?55 Well, what is the alternative? Recommending we can do without but with regards to our preference for or against the aforementioned opera buffa is there really a way to avoid exposure as inescapably taking a position before an Other? Consider ˇ izˇek’s book not the 1970s movie) and his desire The Parallax View (Slavoj Z 56 for a New Politics. This brave new politics comes with the slogan ‘Batleby in power’; it is envisaged as past the politics of solace, of resistance or protestation, the politics of master signifiers which parasitises upon what it negates; it relies on a movement that opens up a new space outside both the

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hegemonic position and its negation. The current situation of politics under ˇ izˇek Capital is one of impossibility, a total deadlock. Before such deadlock Z warns against continuing with the pathetic efforts at politicisation that merely hide the fact that nothing changes. He calls for accepting the deadlock, as a first step towards recognising that all our attempts at politicisation are not supported in any way by politico-ethical guarantees. This is presented as an opportunity for freedom, of confronting the unbearable risk or gap or abyss that confronts us when we recognise that (what psychoanalysis calls) the Big Other does not exist. Fine; but the question is not whether the Big Other exists – He does not – but whether (Levinas’s) Other still affects and obsesses ˇ izˇek’s goal of a ‘new politics’ that me. The question, in particular, is whether Z ˇ izˇek would be based on nothing is, to use the psychoanalytic jargon Z employs, superficial compared to a more fundamental aim which is the desire of some particular human Other or group of Others. To be explicit, perhaps ˇ izˇek sets out to think – a Bartleby politics – is secondary to the the goal that Z unacknowledged aim of tending to the nausea of his sated hosts who, but for his proximity and intervention, would suffer themselves as shamefully ‘present to themselves’, nauseous without relief, which is to say with a deficit of ˇ izˇek primarily theorising or providing succours? In responsibility . . . Is Z other words does the formal gesture of ‘not taking position’ exhaust the insatiable desire for infinite responsibility to the Other? Can we forget our ˇ izˇek’s human pain, which is beyond redemption but demands relief ? Can Z new politics really supersede the desire for resistance or protestation as desire for the good of the absurdly suffering Other? Can we escape the imbroglio of non-intentional affectivity and anarchic responsibility? Can we see it – and avoid it – as a thoughtless production of opera buffa? As we saw, Levinas’s ethics is traced to his early analysis of Dasein in the mode of nausea, enjoyment and desire for escape as its innermost experiences (hence, we can say that Levinasian ethics is, like a digestive, post-enjoyment, post-satiation – no ‘ethical responsibility’ corresponds to suffering, to poverty, to psychic devastation, to need as lack). Therefore, everything that Levinas said about one’s responsibility to the Other is predicated on, first, one’s feeling her existence as burden and, second, on one’s attempting to lose herself in enjoyment57 before realising that nausea returns following satiation. It follows that whether we appreciate Levinas’s ethics also depends on whether we are prepared to take on board Levinas’s thesis that objects can concord fully with desire.58 This, in turn, depends on whether we feel comfortable with Levinas’s subverting not only idealism but also Heidegger’s popularised views on the impoverishment of the world as resource, things as tools and generally the question of technology that underlie ecological and other political struggles.59 Moreover, everything that the later Levinas said of the compromise of infinite face-to-face responsibility (politics, state justice, etc.) equally is premised on what the young Levinas said of economia as yet another means of dealing with existential nausea; realising that, after every

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bout of enjoyment nausea returns, being turns to the economic pursuit of enjoyment and loses itself in the monotonous alternation of effort and leisure in cooperation with countless others. In this regard, the 1930s Levinas had few and basic warnings to give about the dangers of capitalism. In his incessant preoccupation with the possibility of future lack, in substituting enjoyment for stockpiling, the ‘puritanical capitalist . . . prosaically materialistic’60 is barred from hedonism and postpones enjoyment for the benefit of the illusionary protection of stockpiling. Nausea requires an intense engagement with present pleasures but capitalism extends the horizon of compensations for present efforts so far that the present becomes immaterial. To come to fully appreciate the absolute burden of plenitude being needs, first, to hurl itself ‘in the very depths of incipient pleasure’, namely to concentrate in the ecstatic instant of self-abandonment, so that ‘when pleasure is broken, after the supreme break . . . being is entirely disappointed and ashamed to find himself existing again.’61 That, however, is something that capitalism shields its agents from in so far as it is not permissive of hedonism, but avoids present enjoyment and is absorbed with conservation and the integration of the future with the past. This was not the case in the former socialist republics where revolt against tyranny came in the face of the complete impossibility of hedonism for most. For there, in the sincere life of a labour aimed not at surplus capital but at the satisfaction of all primary needs, the need to escape nausea – that essential pre-condition for transformation – had never been effectively delayed. Levinas’s 1930s warning must of course be updated. Today hedonism is not so much disallowed as frustrated – turned into work and virtualised. I am thinking of the stereotypical stressed, workaholic, highly paid stockbroker who loses both sleep and ‘the life’ over ‘futures’ but also works at ‘playing hard’ both off- and on-line. Is there space for ‘incipient pleasure’ and ‘nausea’ in these conditions? If so, then perhaps all that Levinas said about being inadvertently ‘struck by infinity’, ‘obsessing’ over the Other, etc. may still be relevant. In sum, pure biological life would still be characterised by a defective self-referentiality and, therefore, by the uneconomical power of sensibility; consequently, the working subject of language – of history, politics, law, economy, etc. – would be inefficiently, if totally, constituted by impersonal processes and, thus, would continue to signify an endlessly suffering, complaining, critical subject of anarchic non-intentional action that does not aim at transcending these processes but nevertheless disturbs them in a ‘useless’ sort of way.

3. Give me a stage to perform foolish excellence: the rule of law as theatre of the absurd I argued that Levinas’s take on law and politics is not a weakness but a strength for a philosophy that privileges the anarchic desire for proximity. In sum, ‘justice’ is a principle of infinite failure or inefficiency of closure, a

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failure that the finite subjects cannot prevent, overturn, forget or treat as innocuous. As I tried to show with the example of legal critique, ‘justice’ obsesses even the scholar who melancholically declares ours to be an era of pure politics, requiring exclusively philosophical calculi without foolish passion. It concerns the fact that ‘I’ can neither ignore nor satisfy a demand: the demand of the Third to me to justify why I am in proximity with a particular Other. This double inability means that proximity remains infinitely desirable that is to say anarchic: neither a matter of autonomous choice nor heteronomous obligation. All kinds of association – friends, lovers, families, tribes, nations, etc. – whether in physical or virtual contiguity are the progeny of such desire. Thus, all associations are unjustifiably exclusive: this means not only that all lines of exclusion are arbitrary but also that no ‘principle of anarchy’ can be evoked in the place of arbitrariness. Thus one cannot turn away the Third on the basis that one’s exclusive proximity with a particular Other is a fait accompli – for in that case, the ‘Other’ in question is no longer one’s singular Other; she is history and history excludes no one. Nor can one ‘replace’ the exclusive Other by the Third or spread equally one’s concerns on the basis that it is ‘ethically’ necessary; for, when necessity enters the scene anarchy exits and with it ethical desire; in such a case neither the original Other nor the newly welcomed Third are really infinitely, anarchically desirable; they are rather the products of my reasoning on what is necessary and necessity can exclude anyone but the one who thinks it. Not for man to be in communion with all beings. It is because such ‘justice’ is as desirable as unobtainable that the relation of ethics to law is one of scepticism, ambiguity, interruption, questioning and apology. If proximity rules it is because it manifests itself as unjustifiable Eros, racialism, peer solidarity, nationhood, etc. This is another description for the situation referred to earlier as a monstrous yet divine comedy. Monstrous because it presents individual freedom as a predicament, a hyper-passivity unopposed by activity and not synonymous with inactivity; divine, because, in Levinas’s scheme at least, it jolts the subject of language and history into shame and thereafter into desiring Infinity. The desire for Infinity is both ludicrous and has empirical effects, namely it endows the finite subject with non-intentional affectivity, hyper-sensibility, potentiality for disinterested action, love, obsession, ‘foolish excellence’. Having said that, one still desires to do more than repeat Levinas’s slogan that ‘ethics is first philosophy’ – at least in the context of the present book. The problem is that Levinas had enough conceptual labour cut out for him in making us understand what belies that slogan that he neglected to map exactly how his ethics of infinite responsibility – and therefore his idea of justice as scepticism, ambiguity, interruption, questioning and apology – relate to contemporary political and juridical realities. In this last section I aim to at least point out a possibility for rectifying this. In what follows I will be concerned with the debates on the role of the judiciary in liberal states and the politics of the ‘rule of law’. Levinas’s approach to law was ambiguous

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enough to allow us to use his ethics as background when revisiting debates on the relationship between sovereign politics and judiciary in view of the history of the formation of the modern state whereby the activity of legislation as expression of sovereign political power displaced law as interpretation in the context of adjudication. On the one hand, as Manderson pointed out in this volume, Levinas’s often referred to ‘law’ in the sense of modern positive law, that is as a set of state-sanctioned rules that are employed nearly mechanically. On the other hand Levinas spoke of the need for ethics to supervise the operations of such law and his metaphors identify ‘law’ primarily with the age-old business of adjudication and interpretation where the judge’s experience of the dispute is central. Indeed the figure of the judge as being ‘not outside the conflict but in the midst of proximity’ features prominently in Levinas’s few references to the law.62 This seemingly renders Levinas close to a range of ‘natural law’ advocates for whom the rule of law requires the judge to interpret by drawing on law’s own ‘moral resources’.63 In fact, I argue, neither positivists nor ‘natural law’ advocates even come close to (what I construe as) Levinas’s conception of responsibility whereby what judges do or don’t do is central to the effort to distinguish law from politics but only to the extent that they are exposed as having to decide without having access to ‘moral resources’ with which to challenge sovereign power nor being able to ‘capture’ the object of judgement as adequately (that is as reductively) as political or indeed legal judgments require. It is judicial sensibility in excess of experience and cognition that defines the function of the judge as ‘not outside the conflict but in the midst of proximity’. Without the Third opening up the possibility of the face to face but also asking me to justify my exclusive intimacies, there would be neither proximity nor conflict. The infinitystricken, or ethically ‘dumbfounded’, law judge who is ethically responsible for the dispute more than what is humanely possible for her to do – her sensibility overflowing her moral and political duties – symbolises this function of a ‘foolishly excellent’ Third within the state. I have defended in several places the view that if a modern law judge’s individuated, anarchic, ethical responsibility can be distinguished from sovereignty this cannot be done on the basis of the institutional character of her office, her manner of reasoning, the process she follows or what is said in the formal legal or state-recognised judgment. Rather, it can only be traced as the judgment’s other side, its ‘foolish excellence’ – evinced in unintended meanings, double negatives, non-sequiturs, some passionate dissents – in which what is said cancels itself and, thus, allows for the other to be expressed. From this perspective the usual binary opposition ‘arbitrariness or rule of law’ becomes irrelevant: neither one nor the other but: the rule of the Other. My very first ‘use’ of Levinasian ethics concerned the analysis of a legal case where the UK House of Lords was asked to provide a declaration that if a medical doctor responsible for the care of a permanently vegetating hospitalised man would remove the nasogastric tube that had fed the patient

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for three years this would not amount to murder or manslaughter.64 The context was a dispute between the doctor in question and pro-life hospital staff. The Court found no good precedent or piece of legislation to base its position on – a fact that many judges vocally deplored. Indeed, it could not have been otherwise because the essence of the problem here was that the Other in question was neither alive nor dead in any ontologically clear sense while the positive law knows only these two alternatives. Yet, mindful to uphold the ‘separation of powers’ the Court did ‘base’ its decision on improper analogy using a precedent concerning the ‘best interests’ of a sentient, if mentally ill, person and, therefore, treated the a-conscious and insensate ‘vegetable man’ as if clearly alive – a ‘still life’ of autonomy, rights and interests. As a result, the formal reasoning of the judgment is both as absurd as the ‘suffering’ of a being with no thought or feeling; and it acts as an appropriate metaphor for the ability of positive law to be ‘immortal’, unlimited in its assimilation of otherness. Of course, the substantive decision (in the event to let the doctor starve the vegetable man to death) cannot be derived from the formal ratio. For that we turn to the judges’ subjective values and contingent take on the ‘good’ which were arbitrarily imposed through a process of mimetic identification with the Other who, in the event, they treated as their worst fear: a life that is already death in all but name, a nature-morte. Yet, despite all effort, the Other as other was ‘persecuting’ them as neither dead nor alive; their representational and mimetic powers could not match the situation. This is shown in some of the individual judgements exclaiming that the distinction lawful/unlawful was irrelevant here! At such moments, when a law judge abandons the very distinction on which her craft is based in an attempt to substitute herself for the other as Other I trace an expression of the impossibility to escape an anarchic personal responsibility for the other human. At the same time the ability of the judges to represent their Other as substantively already dead and legally still alive functions as a denial of this individuated, infinite responsibility. Jurists unconsciously recognise this by spelling the word ‘judgement’ without the ‘e’ when it is final and publicly binding but with the ‘e’ when it is personal, disputed or dissenting. A ‘judgment’ is the product of an excellent judge; a ‘judgement’ is the trace of an Infinity-stricken, dumbfounded, ‘excellent fool’. From this point of view the usual constitutional dilemma between legislative and judicial supremacy is radically transformed. At least in the above scenario it is clear that as the answer to a question of law could not be derived from relevant legal norms the official – that is, the judge – charged with answering that question has to make a quasi-sovereign or legislative substantive decision, one that is ultimately unconstrained by legal norms. Here we enter the philosophical debates on dictatorship and exception prominent examples of which are the works of Carl Schmitt and Giorgio Agamben which cut across the usual positivist–natural law divide. Natural

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law advocates come in various forms but, for the sake of brevity, we can fairly say that all agree that law has in ‘inner morality’ which judges return to when rules fail. Well, I challenge anyone to show what sort of long-standing principles could guide the decision on what to do with the case of the vegetating man that so dramatically shows that ethical responsibility extends to the otherwise than being and non-being and which in turn can be resolved in a principled manner only if we first decide to treat him as if either still alive or already dead. Elsewhere I have expanded this interrogation in other judgments from within the area of so-called ‘medical law’ involving such ontologically/phenomenologically challenging beings as cryo-preserved embryos, anencephalic babies, etc. for which no piece of legislation or ‘authoritative’ precedent exists. As for strict positivists, for whom the rule of law means rule by law, ‘law’ is a procedural device or instrument for efficient governance. Among them, constitutionalists like Austin and Dicey regarded the sovereign legislature as the sole legitimate source of legal norms and thus, in moments of interpretative doubt, look primarily to proxies for actual legislative intent in order to work out ‘what the law requires’. The problem with this conception is that it does not stand up to scrutiny as a ‘constitutional’ principle of any political association. ‘Efficient’ governance often requires breaking with even the most basic aspects of ‘due process’. This is most evident when the sovereign declares a ‘state of emergency’ such as post 9/11. While constitutionalists have and continue to argue that it is possible to have a ‘constitutional dictatorship’ based on the Roman model65 theorists such as Carl Schmitt and Giorgio Agamben convincingly argue that this is misleading. For Agamben a dictator operates within a black hole or ‘an emptiness and standstill of law’66 something already evident to intelligent positivists like H L Hart.67 Decades earlier, now massively re-read, Carl Schmitt to the dismay of liberals had turned on its head the saying that ‘an exception confirms the rule’. For him the very quality of sovereignty is revealed in the answer to the question of who gets to decide that there is a state of emergency.68 From this point of view no law judge can claim either to be relying for her decisions on the imaginary apolitical ‘inner morality’ of law or to be mechanically applying someone else’s legislative intent. Here, my intervention consists in an effort to differentiate between, on the one hand, the law judge as said minidictator/legislator – whom I have no absolute reason to prefer to any other dictator – and, on the other hand, the law judge as Levinas’s ‘ethically dumbfounded fool’ or as site of non-intentional affectivity and sensibility by the Other that weighs on the decision as ‘dead weight’, rendering it faulty, inefficient, questionable both in terms of politics and legality. In this regard the crucial distinction is what Levinas called radical passivity before the absurdly suffering Other as explained in the introduction to this volume. To the extent that a judge appears capable of deciding a case on the basis of selected ‘features’ of the dispute (agency, causality, etc.) which she can construe under the binary legal distinction ‘legal–illegal’ her actions or

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omissions are ethically indistinguishable from purely political decisions made on the basis of other distinctions, say, the ‘friend–enemy’ or ‘insider–outsider – distinctions of which the ‘politician–jurist’ or ‘legislature–judiciary’ distinctions are species. The principle of ‘separation of powers’ is a purely political principle; not a divine command. Therefore, one should not sanctify the ‘right’ of the judiciary to uphold, say, fundamental rights any more than one should do the same for the ‘right’ of Greeks to make feta cheese. Both need to earn this right in politics. Both can lose it at times. The difference between his excellency the law judge – who functions as a political being but speaks as if politically neutral – and the foolishly excellent judge – the one in the middle of proximity through whom speaks the other – is not just the ‘courage’ to take the risk of being seen as a fool, however. The difference rests on involuntary ‘obsession’ with otherness and extreme sensibility towards suffering as something signifying in excess of the meaning it receives, as a nonphenomenon that afflicts the Other as other alone and as a scandal for which no one but me is responsible. If legal and other political judgments within the state are to function as such they need to cognitively identify what is desirable/undesirable respectively as permissible/non-permissible and expedient/ not expedient. Hence they ought to cognitively appropriate – and thus to dissolve – alterity and singularity. They need to be anything but foolishly excellent. Now, for the prudently mediocre, desire registers only as tendency and need and is associated – and regulated – with power-as-capital not as excedence and deficit; freedom is thought of as autonomy and prudence; not as sensibility and obsession. I submit that anyone acting prudently is either exercising or aspiring to sovereignty – and law judges are not an exception. Prudence means that the part of existence which is a non-phenomenon – Levinas called it absurd or ‘useless suffering’ but also guilt for suffering one has not caused and cannot remove, obsession, in sum non-intentional affectivity – is either denied as pseudo-meaningful loss, obstacle, lack and the partial responsibilities these respectively invite, or else it is a matter of indifference to the judgment. The legal construction of suffering as harm – objectifiable, quantifiable, comparable and attributable to agency or else legally indifferent (apart from what remains of strict liability, perhaps as a fossilised trace of the infinite desire for God which belies the recourse to the judge) – is precisely the result of the very un-foolish judicial labour of turning a blind eye (or rather a cold heart) to the nonsense at the heart of every dispute. Moreover, despite what positivist cynics suggest, this prudent labour is evidence of judicial activity not passivity before a mechanical law. Every tediously mechanical application of the law involves the labour of imagination and argumentation that subsumes the Other to the precedent or the rule. In so far as the prudent law judge turns the non-phenomenon of an Other’s individuated suffering (which calls for sensibility, obsession) into a phenomenon which either calls for decisive action or invites indifference the judge is no longer functioning as ‘in the midst’ of proximity but, rather as if in the

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midst of the polis with a very specific task. The prudent judge’s function is literally to distil sense out of senseless suffering, filter out that which is publicly innocuous and portray publicly an elementary list of what it means to suffer. In this role the prudent judge must have no illusions of a special, extrapolitical role. The role is rather proto-political. Historically legislation overtook adjudication as the primary expression of law. Might not this be the logical consequence of the political power that a judiciary accumulates as it possesses the memory of a long list of what has historically counted or discounted as meaningful or even ‘acceptable’ suffering? Indeed, in so far as judges are in the business of filtering meaningful from non-meaningful suffering they are elemental to the construction of the basic object of governing: salus populi. Therefore, the rule of law, both in its substantive and formal versions, shares with pure politics the same basic law of politics as Cicero and Hobbes understood it: salus populi suprema lex esto. Equipped with means to ‘judge’ suffering as something comprehensible the state – by which I mean executive, legislative and judiciary – promises safety, health, abundance, welfare and ultimately salvation while relegating obscure sufferings to the realm of the politically indifferent (this varies from jurisdiction to jurisdiction; for example, the French state forces its citizens to show solidarity to a fellow citizen in extremis but the British one does not). The expanded state – and its more expansive global substitutes – further relativises, diminishes and regulates the individually addressed command at non-murder which, for Levinas at least, is as absolute as it is unnatural and inexplicable. It voices over or sanitises the silent scream of useless suffering; it legitimates suffering on the basis of the general good; it regulates and often delegitimises the expression of nauseating plenitude as anarchic compassion (the poster in my local train station warns me not to give money to beggars but to contribute to organised charities instead; I prudently obey; the beggar stares at me); it substitutes elections for ethical ‘election’ and infinite, obsessive responsibility. Yet this volume is about Levinas and law and politics; and nowadays the question whether we prefer the judiciary or the professional politicians to act as dictators is pressing perhaps more than ever. Can we begin to formulate an answer in view of what has been said above? My answer is yes, provided we shift our focus from the legislative-judicial ‘dictator’ as prudent being to the judge-dictator as a prudential failure. As successfully prudent beings law judges (national or international) serve the same law with other sovereign decision makers (salus populi) and most probably are less well equipped to act prudently. They cannot be differentiated from the legislator on the basis that they alone can take the high moral ground (and have access to law’s internal moral resources that are, magically, transcendental as natural law advocates claim nor, conversely, on the basis that what they do is ‘merely’ to apply legislative intent. In other words the distinction between the conception of the rule of law as a set of substantive principles of political morality or just as procedural device is, from the point of view of my reading of Levinasian

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ethics, irrelevant. But, I argue, precisely because of their old-fashioned techniques and organisation law judges are the most likely to appear as failing compared to presidents of national and international administrations, profit and non-profit oriented bureaucratic entities, board executives, etc. As I hinted earlier during my brief discussion of medico-legal cases, today’s judges, confronted with the marvels of science and technology, have to go to extreme lengths to issue judgments that show them either to be simply ‘applying’ purely political intent or alternatively to be qualifying it on the basis of non-political moral principles ‘internal to law’. That in turn involves insisting on comprehending alterity to the point that their judgments become as absurd as the suffering they are concerned with. Arguably only in this manner can a judge be a judge today: the courtroom as theatre of the absurd. And that is a good reason to prefer judges to pretend to ‘supervise’ politics from their so-called apolitical benches. For in an age of extreme pragmatism they are the only public officials who have not (yet?) stopped pretending that the king is naked. In an age where ‘symbols’ are stripped of all affective power judges continue to occupy their physically and institutionally ‘elevated’ positions, stumbling around, making fools of themselves as their performance is the only one that still aspires to the dimension of height and infinity while it takes place exclusively on terra firma. We have no doubt that they are on terra firma through and through; prudence and consequentialism reign supreme. Consider the history of the twentieth century judicial reactions to executive decisions to suspend ‘fundamental’ aspects of the rule of law in a plethora of well-analysed cases in the USA and the UK.69 When, in my classes on public law, I teach cases such as that of the Belmarsh 70 prisoners in England, students and I do not know whether to laugh or cry; in fact the tendencies cancel each other out which is just as well because it is only when the judicial performance is stripped of the melodramatic context in which its pseudo-sense is constructed that the senselessness of the suffering involved becomes apparent. The well-known case concerned the statutory derogation from the Human Rights Act 199871 permitting the government to detain indefinitely non-citizen suspects of unspecified terrorist links. The law that removed Habeas Corpus was necessary in view of a previous European Human Rights Court decision which had condemned the deportation of such suspects from the UK to their home countries where they faced the risk of torture!72 In Belmarsh the House of Lords – which, fittingly, cannot invalidate Acts of Parliament but only declare them ‘incompatible’ with Human Rights law, a clearly political function – dedicated half its time showing that the state-declared emergency post 9/11 was not in conformity with the law regarding emergencies but ultimately proclaimed this to be a matter of – in my words – salus populi in which the secretive executive was more of an expert. It proceeded to issue a declaration of incompatibility only in relation to the fact that the discrimination between citizen and non-citizen suspects was disproportionately chosen as a means

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of pursuing salus populi. To which the executive responded with yet another law that corrects this so that everybody can be indefinitely locked up. This is the highest court in the land! By contrast the executive does not even aspire to dignity as it sets itself the mediocre task of managing impersonal processes: Tony Blair for one is right when he declares that the rule of law is a luxury. The question is ultimately: what sort of function can such luxuriating legal judgments be said to discharge, other than the obvious one of legitimating pure politics at a time when politics does not really need legitimation through law? The answer I wish to suggest is that they constitute a kind of a public spectacle in which the representation of suffering is inadvertently more successful than any other spectacle in conveying the ‘ingredients’ of the ethical relationship: gratuitous responsibility before absurd suffering.73 Ludicrously high-minded and totally ineffective judges, alone among officials, appear stuck with ethical, individuated, proximity-driven responsibility as nothing but (albeit this is an important ‘but’ – as important as ‘foolish excellence’) folly, an obsession with the Other whose suffering is totally incapable of being justified. For as long as this show goes on it renders the actualisation of absolute and pure political power less efficient than it can be and thus it infinitises ‘the political’. This proximity-driven responsibility cannot be manifested in either procedural or substantive restrictions to politics. Ethical responsibility does not oppose power. Ethical responsibility is rather traced in the judicial failure both to stick with the legislative script and to compete with the scriptwriter for the audience’s affection for the manner in which they interpret their role. To ‘act ethically’ – which is to say, to no longer question whether she is her brother’s keeper – the judge can only stumble. Therefore, the label ‘judicial supremacy’ is misleading. But such judicial failure is not without political repercussion of a kind: it functions as ‘dead weight’ on decisionist politics, re-introducing the audience to the possibility of doubt. In effect I am suggesting valuing the show of the rule of law the way we valued the mid–twentieth century movement of the ‘theatre of the absurd’. As all theatre, the latter exemplified the linguistic/performative nature of the process of construction of meaning from which subjectivity results. It is, however, credited for having showed this process to be utterly contingent and ultimately unfounded within our atheistic universe. We applauded the absurdist play for employing techniques designed to disable the audience from both understanding and empathising with the actors, forcing it to face the staged events in their meaninglessness and to either get passively nihilistic or invent their own sense of responsibility.74 For each spectator this amounts, firstly, to the stripping of his/her thinking of its formality, down to the rawest nerve, namely to pure sensibility. Secondly, in so far as the absurdist play is successful in barring all identification, this sensibility should be thought of as unpredictable not symptomatic. Hence, a plane of existence is invoked for each spectator, which is prior to the individual ego and yet capable of individuation. The exposure to absurdity, in other words, requires less than a

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differentiated group of individual spectators and more than an undifferentiated mob. Exposed to absurd suffering and joy the spectator signifies only a potential to become singularly affected by the spectacle in order to escape the boredom of sitting politely in a dark room with others and prior to becoming a subject through conscious and unconscious identifications. It signifies, in other words, what Levinas called the ‘existent’ who desires and anticipates an absolute exteriority, or subjectivity as ‘non-intentional affectivity’ or ‘radical passivity’. Of course Levinas, unlike Beckett, tied this absurdist subjectivity to an inexhaustible ‘sensibility’ that is capable of individuating man ‘otherwise’ than through conscious and unconscious identification, in infinite responsibility for the suffering and joy of its Other whom it approaches as if a unique Other, irrespective of the Other’s impossibility of manifesting meaningful difference. In Beckett’s plays by contrast the human is reduced to an assemblage of three abstracted functions – movement and rest (to go and to stall, or to collapse, fall, lie down); being (what there is, the places, the appearances, as well as the vacillation of any identity whatsoever); and language (the imperative of saying, the impossibility of silence). Now, in so far as drama, like philosophy, aims at understanding and knowing, then the theatre of the absurd died when its mission was accomplished. Beckett was talking to modern nihilism and the ensuing epistemological and moral crises, which he dramatised well. Thus, today’s world no longer needs the actual theatre of the absurd because the whole world is experienced as one mass staging of absurdity in which we readily identify with those players who, ostensibly, are waiting for Godot but in reality are no more than a set of directional impulses (like the up/down/right/left of the electronic consoles of entertainment and warfare), followers of impersonal instructions (like the recorded voices we hear all that often) and senders of messages that communicate nothing beyond the fact of communication itself. In these circumstances what happens to ‘sensibility’ that does not get transformed into shallow optimism, the desire for salvation which historically gave rise to ecclesiastic and state sovereign politics? Historically the possibility of such sensibility to be experienced as Gnostic spiritualism has been suppressed; it re-reappeared in the thought of Heidegger as anxiety of work or the ‘authenticity’ of being-towards-death but that too is a closed option since technology blurs the line between life and death. With mortality no longer occasioning anxious personal work the postmodern subject is more than ever given to the feeling that the background to existence is an impersonal there is: all work – as impersonal function – feels like dull duty (consider ‘Jack’ in the film The Shining). Speaking – as if one had voice – feels like ventriloquism. Can the sensibility of such nausea be transformed into enjoyment and play? In fact the post-modern subject still has pretensions of innocent playfulness – it does ‘spend time’ playing those mindless computer games but, at the end of each satisfying game the ‘player’ is reduced to an extension of the game and the time of ‘playing the game’ is

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indistinguishable from the monotonous, synchronic, time of the inauthentic, pseudo-work of performing one’s functions. Nausea returns. Caught between being a cyborg and the persistent feeling that one has to be a cyborg, the Beckettian post-modern being seems, therefore, neither an individual nor (yet?) a fully desubjectified existence, but an existent who still suffers alone the nausea attached to having to perform its abstract functions within the impersonal processes of our technological universe. The post-modern being, therefore, is still capable of sensibility and desire to escape the totality of being. In Waiting for Godot this residue of sensibility can be glimpsed in that the two characters both hate each other’s guts and do not quite manage to leave each other. It is also glimpsed in post-modern man’s continuing fights and hatreds, his fundamentalisms and terror, his humanitarian wars and his Guantanamos. The possibility of sensibility, as exposure to absurd suffering, to operate as the otherwise of the melodramatic performances of friends and enemies can be glimpsed in another celebrated absurdist play that came a decade after Godot, and, perhaps significantly, was written by war-child and refugee Tom Stoppard. Since the play is quite well known it suffices here to note that Rosencrantz and Guildenstern Are Dead is structured as the inverse of Hamlet with Hamlet himself given only a small part and with Rosencrantz and Guildenstern, who are used by the King to find out about Hamlet’s motives and to plot against him, outwitted by Hamlet, so that they, rather than he, are killed in the end. As in all absurdist plays R & G inhabit a world absolutely beyond their comprehension but the play is distinguished from Godot in that absurdity is no longer thematised alongside alienation. R & G, who can barely remember each other’s names, enjoy each other in a playful manner, much like children who tease their friends but without ever going too far and spoiling their friendship: they are for each other’s absurd sufferings.75 This is not possible because, like children, R & G are ignorant about how their lives fit into the play’s economy. In fact they crave and do receive instructions that they are happy to follow. It is, rather, because these instructions are always inefficiently given and followed that their acting never supersedes their playfulness. Thus, R & G remain frustrated, now joyous now unhappy. As such R & G could be taken to exemplify the post-modern subject’s continuing capacity to escape the anonymous ‘there is’ of its nearly de-subjectivised existence and function, in momentary enjoyments and intimacies that are uneconomical. Their fate, moreover, is foretold (by ‘the Player’). These two are literally dead men walking: the line between death and life has been blurred. Yet they care for each other. Likewise, the ‘impersonal processes’, into which subjectivity is supposedly swallowed, have not (yet?) entirely done away with sensibility experienced, first, as nausea at having to be (or discharge function) and, second, as predisposition to assume, inanely, a personal responsibility for the absurd suffering of the Other who, albeit meaningless, signifies a unique site of undergoing. In this regard recall how Levinas

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referred the notion of society as economy – understood as the sum total of multiple beings-for-itself who are co-coordinating their actions and decisions – to the anarchic concreteness of face-to-face sociality, evinced in simple everyday gestures such as the ‘after you’. And, moreover, how Levinas was capable of affirming proximity just as he was ready to admit that, indeed, the world is increasingly face-less.76 This is an amazingly humane bracketing of the inhumane effects of nihilistic humanism especially coming from Stoppard, the refugee child who was raised by a foreign stepfather, and Levinas the prisoner of war, who felt the need to express – in writing – his gratitude for a dog that would greet him everyday after his return from forced labour to the Nazi camp where he was imprisoned. Hence, as a first conclusion, let me retain that this absurdist play signals that, at the end of metaphysics, it is possible to stage subjectivity neither as mythical self-presence (Hamlet) and sovereignty (King Claudius) nor as entirely unimportant in the production of social reality. R & G present themselves to each other as unique sites of sensibility – stripped of its conscious and unconscious ‘content’ – in a way that comes close to Levinas’s ‘non-intentional affectivity’. This staging is missing from the kind of social theory that privileges reflexivity over sensibility and of legal theory that privileges textuality over staging. Here a parenthesis is needed. How can a paper on Levinas so confidently discuss issues of representation? There may be those who would say that Levinas’s claim that the ethical relation operates as it were ‘outside’ the representational economy of the state is but a reformulation of Platonic idealism that separated philosophy from politics. They are not entirely off the mark. Although Levinas elaborated convincingly the sense that his ethics concern not the beyond of being but the otherwise than being, yet the relationship of ethics to the realm of semblance and appearance in which the world becomes a world (through our conscious and unconscious representations of it) and in which power politics operate, was lamented by him as allergic. Unlike deconstructionists like Derrida and Critchley, Levinas did not have much time for the symptoms or indeed the opportunities of this allergy. Should we be confined, however, to trace the primacy of ‘ethical anarchy’ in the failures of political theory to adequately represent its ‘ideal goodness’? I think it unfortunate that Levinas, in formulating the empirical individuating effects of his ‘infinite’ ethical responsibility, employed an anti-representational, anti-theatrical rhetoric (because, he meant, in theatre one is interchangeable whereas ethical responsibility concerns the self as irreplaceable me) and, thus, inadvertently, joined the Platonic tradition that distinguishes truth from the ‘theatrocracy’ of politics and representation. The ideal of ‘non-theatrocracy’ is generally deceiving and, in the case of Levinas, it is a major cause of his inability to engage with contemporary politics. Levinas talked of identity as the horrifying experience of being riveted to the impersonal there is and of ‘ethics’ as the anarchic desire to escape. Well, psychoanalysis convincingly shows how there is nowhere other

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than the stage of representation by proposing the ‘unconscious’ as the site of the psycho-physical inscription of the procedures – and impasses – of symbolic investiture and legitimation, procedures that are bound up as much with the violent practices of political sovereignty as well as with its representations. The ‘unconscious’ forms the locus of psychic activity whereby a human being becomes a ‘subject’ by metabolising its existential dependency on institutions that are in turn sustained by acts of foundation, preservation, and augmentation. In modern society, moreover, it is only the State and its institutions that endow us with social recognition and intelligibility and, therefore, produce and regulate symbolic identity. In moments of crisis – for example breaking the rules – the stick of sovereign power is used to reintroduce the deviant subject back into the fold. And, indeed, as psychoanalysis shows, it is the deviant subject that desires its punishment as a means of its reintroduction into the symbolic. Levinas could – but did not – think the impossibility to escape the double realm of theatro-cracy (representation and bodily inscription of sovereign violence) in terms of his there is. Had he done that he could have then tried to identify how (if at all) his anarchical ethical subjectivity operates as a principle of ‘inefficacity’, ‘deficiency’ and ‘foolish excellence’ within psychophysical economies of representation, thus marking the subject as potentially ‘ethically free’ irrespective of being bound to persuasion and the fear of punishment. Moreover he could have noticed that, for a plethora of reasons some of which I have already indicated, the contemporary law-bound state, functions as the perfect stage for this kind of inefficacious, deficient, foolish production of subjectivity. The rechtstaat sustains itself in a manner which is institutionally paradoxical. If it is the epitome of society this is by means of a double bind on the subject through both primitive rituals that collapse it into an undifferentiated community (‘Quick! The barbarians are coming – no they are already among us! Here we got one – let us all watch her torture and execution!) and representation that addresses us as individually capable of reason (‘Wait a minute . . . should we not treat citizen terrorists too as harshly as barbarian ones?’). Today’s judges in ‘High’ or ‘Supreme’ Courts, like priests before them, occupy the privileged position of someone who can both embody the law of the sovereign and transgress it.77 Thus, on the one hand, judicial review is theatrical entertainment in so far as the judiciary allude to a ‘transcendental’ rational and/or traditional authority that acts as the necessary unifying principle for a differentiated social body. On the other hand it always already coincides with the rituals of efficacious and excessive use of state violence, notably capital punishment and the power to declare emergencies or war, which re-fuses the socially differentiated social body into a basic, undifferentiated community, by performing the re-introduction of the sacred as if present in the midst of society, as something that can be more or less immediately experienced.78 In turn, the individual subject of public law can be understood in terms of this institutionalised paradox. As subject of public

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law the political subject is both a sort of a theatrical configuration defined by the forms of thoughtless necessity to which one is subjected and the horrified recipient of a threat (‘see what happens if you defy the state’). But paradoxes are productive and, therefore, it can be argued that the capture of the subject by power and its representation is always a local and provisional one. If so, then, perhaps, the ‘luxurious’ notion of an ethical excess to being – pure sensibility, foolishly desiring exteriority, undermining the stability of the ‘content’ it receives – can be theorised productively. The question is whether ethical sensibility might operate in a politically significant way while remaining distinct from the politics of salvation – salus populi. Consider those who resist the old-fashioned prerogatives of state sovereignty to kill public enemies both in peace and at war as state murder. They may be mocked as naïve – both in the light of the problematic of the bio-political exception, which reinserts sacrifice at the heart of all governance, and in the darkness of our terror provoked by witnessing the efficiency of state terrorism and of the increasing power of technology to blur the line between life and death. But the fact that even in these circumstances it remains possible to oppose executions and wars as instances of immoral murder with a sense of ethical urgency – akin to Levinas’s placing the fear of murder, not death, at the heart of ethical life – is telling of a certain deficiency at the heart of bio-politics. As bio-political beings, products of ‘pure politics’, the contemporary individual is the one who has to live but without a right to live. Indeed, this is an era of hugely increased pressure on individuals to stay alive and make full ‘use’ of their life’s ‘potential’ by availing themselves of scientific and technological means, but also, of increased horror associated with the multiplying spectacles of mass-scale atrocities and disasters as well as with the detailed knowledge of risk. In these circumstances the fear of negligent or intentional suicide/murder has become a greater source of anxiety than natural death and decrepitude which, in and of themselves, often solicit laughter.79 Once upon a time in the West mortality was indeed the ultimate source of fascination and horror. For today’s das Man, however, ‘. . . and then you die’ sounds comic rather than tragic. ‘To be or not to be’, is treated cynically as banal and capricious compared with the collective affect of horror engendered by ‘premature death’, in the form of natural and manmade disasters, suicides and self-destructive lifestyles, etc. As we know that the next generation will live even longer than us, it is the timing of death that matters and not death itself. Today, the fact that I am mortal is less a source of anxiety than the fact that I am increasingly responsible for staying alive just as I am increasingly aware of the inevitability of randomly distributed risk. What little dignity remains to the autonomous individual of Enlightenment (for example what is constituted by the legal language of ‘autonomy’ and ‘property’) is shockingly exposed (in court and outside) to the senselessness of private and state mass murder, suicides, home-alone corpses, drug- and alcohol-related deaths of the emerging class of irritating,

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ignorant and incompetent people who are incapable of the task of individuality and appear indiscriminate from the vegetating patients, the aborted fetuses, the frozen embryos, the newly born disabled, the senior people or the persistent smokers to whom medical care will soon be denied as well as those killed for reasons of crime and state law both within the nation state or abroad. All this points to us, the post-modern survivors of Enlightenment, not so much as mortals but as accomplices or potential victims of mass murder, intentional or negligent, criminal or legitimate. Worse even, upon reflection, the post-modern individual finds that, even when there is no crisis and her life is not immediately threatened, she cannot take her individuality for granted; she possesses no essence or permanent identity, but nevertheless has to be taking up the duty of mundane daily life which, far from being inauthentic, involves the constant effort of leaving herself behind and choosing who to become next. As such, no longer seen as worthy of absolute protection, the post-modern individual can be locked up without fair trial, tortured, ‘rendered’, etc. No power can be evoked to help in this atheistic universe of free choice and endless ‘progress’, no pagan god be bribed. One can only sacrifice resources to the benefit of scientific research either altruistically – for the benefit of future generations – or, in ludicrous attempts to be selfish – for example by becoming litigious or . . . by cryo-preserving one’s corpse. Hence, it would appear that in our time Levinas’s insight that death is experienced in the modality of the relation to the Other as murderer or victim of murder, would be all the more forceful. But it is even more complex than that. As Western man enjoys an age of unparalleled actual or imaginable prosperity in the aftermath of the Holocaust and in plain view of continuing genocides and mass murder, the thought of mortality as source of anxiety gives way, on the one hand, to the nausea that accompanies the realisation that there is too much life and, on the other hand, the realisation that this too much is inescapably sustained not by murder but mass murder. Murder and violence presuppose a face, which in mass murder – and statistics render all murder mass – disappears. The victims of National Socialism’s mass murder were consumed in this way, not murdered but exterminated.80 For the Holocaust survivor, however, there is an extra dimension to the traumatic memory of the near miss with faceless death: that of having occupied the position of the excepted being, the deportee who cannot be ordered to die (executed) because they never had to the right to live.81 Today’s das Man occupies this position in an inverted form; he is pressurised to live to the full a life that he is not entitled to. Indeed the pressure to ‘live longer with a healthy lifestyle’ and ‘work hard for a prosperous life’ is accompanied by the knowledge that we are subject to risk, that we are not entitled to medical treatment, or a better chance at survival (the planet’s starving majority is barred from finding work in the North, but free to watch the North’s prosperity); that we have a ‘right to life’ which concerns the individual absolutely and the state relatively while the neighbour is forced to watch passively.82 This

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knowledge of the inevitability of mass life and mass murder is, for me, the name of the situation whereby being’s nausea at having-to-be of which Levinas wrote reaches unprecedented levels as the suspicion arises that the possibility to experience death in the modality of the relation to the Other, as Levinas claimed, is being lost. All that remains is the there is and nausea. The question that arises is whether das Man – now seen almost as purely desubjectivised, a . . . cyborg – will be able to dwell in his nausea and his horror.83 And, if not – in which case das Man is still a being aspiring to escape – whether she will be able to put a face on mass murder, so as to call it murder and reclaim the sense of anarchic responsibility to oppose it for the sake of the Other, as Levinas hoped. In so far as in circumstances of such a sea of murder, sovereignty still requires the singling out of particular ‘enemies’ for punishment, execution and war, politics becomes the theatre of the absurd. And the rule of law is its stage. The state’s erstwhile ritualistic use of sacrificial power to declare wars or stage executions as a means of ‘awing’ the public and reintroducing the ‘sacred’ in the middle of the public arena, has become ineffective; it can no longer be distinguished as ritual, sacral, sacrifice – it is just another instance of mass murder, namely the event where death comes early but without a face. There is no ‘shock and awe’ – only shock. Do we not see in state killing – be that the execution of a mentally ill criminal or the ‘collateral damage’ of military strikes – just another instance of random mass murder, that is, violence which is as functionless and meaningless as the shooting of multiple students in a North American high school by two of their classmates? And, if enemy lynching can no longer be the binding ritual that used to re-fuse society into the fearful mob that is our communauté inavouable, what use is there for the ratio of the judicial decision that authorises it or not? The ratio used to play the function of re-differentiating the mob into society by referring the state’s murders to a ‘transcendental’, rational or traditional, authority. But the mores deployed for civilising the state’s pseudo-sacred power are relentlessly exposed as superficial gloss and ‘transcendence’ becomes a meaningless word. It follows that, in so far as the state is now seen increasingly as mass murderous the age-old dramatic/political techniques of separation between audience/the ‘public’ and stage/scene of sovereign politics (and moreover, since Aeschylus, of constructing a ‘back-stage’, invisible to the audience, where the deus ex machina hides its trivial cogs and wheels) have been rendered inefficient. The king is absolutely naked and, consequently, has lost both his heads. But he still walks like a headless chicken does for a few seconds after its decapitation. In this final, absurdist, theatrics of sovereign power we need to ask whether the uniqueness of the face-to-face still operates, whether murder and with it responsibility is still possible in the midst of mass life and mass murder. Moreover, we need to ask whether it is worthwhile delaying ad infinitum the dismantling of the ‘rule of law’ performance which allows us to represent the absurdity of our situation (as opposed to being

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swallowed up by it). In asking this question we can do worse than getting lessons from professional absurdists. Back to Stoppard’s Rosencrantz and Guildenstern Are Dead. Despite being central to the play, R & G do not entirely manage to upstage Hamlet and the King who, although relegated to minor roles, retain something of their gravitas from Shakespeare’s morality tale. I suspect the reason is that the likes of Hamlet and the King think and speak in terms of responsibility while R & G do not. The reason, however, why R & G are ‘without responsibility’ is not because they inhabit an absurd universe. As I have argued absurdity and responsibility are not contrary notions – at least in Levinas’s scheme. Thus, for Levinas, the absurdity of suffering and death is experienced in the inter-subjective mode, as scandal and murder, and is hence transformable into gratuitous, obsessive responsibility for the Other’s vulnerability and mortality. Therefore the reason why R & G do not seem (yet?) destined to upstage the likes of Hamlet is not because – like us – they do not move according to the coordinates of deontology. Rather it is because, in the play’s economy, they occupy a position from where there is no murder – only death as nothingness. Indeed they remain ignorant of the real reason Hamlet is upset (the murder); and when G plunges a knife into the Player’s throat and watches him die spectacularly for a moment before realising that knife was fake, G only mutters melancholically that ‘Death is not anything . . . death is not . . .’ In this regard note that the play was first staged as one act under the title Rosencrantz and Guildenstern Meet King Lear. In the revised and retitled play, however, Stoppard made changes that ensure that as far as the audience is concerned it is indeed murder – not faceless death – that structures the play which now ends with the two ambassadors from England announcing that Rosencrantz and Guildenstern have been executed. What this revision achieves is that it bars us – us for whom the distinction between death, as nothingness, and life, as non-sacred process, is increasingly blurred – from identifying with R & G’s childlike naïveté. Instead, we watch a play defined by the murder of those for whom murder is impossible; thus, scepticism is salvaged from cynicism and, presumably for Stoppard, so is the ability to oppose murder at the hands of the state or otherwise from within an absurd universe. The theatre of the absurd is therefore politicised again. At some point in the play Guildenstern says, ‘There must have been a moment, at the beginning, when we could have said – no. But somehow we missed it.’ The question for us living spectators is whether we can identify with R & G simply stumbling about without coordinates to their absurd death; or, whether our ability to accept absurdity is deficient and, despite pessimism, we can still obsess over objectionable murder even as we find ourselves drawing in a sea of murder. Unlike R & G we have not yet been absurdly called up to be executed in the name of the law, ‘as if ’ we deserved it. Here we are still, having to be, survivors resting on a shambles called individuality floating on a sea of murder, nauseously trapped in immanence,

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performing functions that amount to nonsense. We, the sated inheritors of liberalism who are not yet declared state enemies, nor left to waste as surplus humanity, we would be pretending that our lives are ‘fully excepted’. For us, beyond the thought of the exception, there is the absurdist drama of the rule of law which Kafka and Beckett pointed to. It gives us the chance to reflect on ourselves as bio-political beings that have to live but without a right to live. Our most private experience of ourselves is not fear but nausea at having to be. Moroever, following Rosencrantz and Guildenstern’s execution, we know that to simply perform the absurdity of our lives, resigned to waiting for Godot to bring us the truth of being, ends in the illusionary safety of our opinions, prejudices and dogma which is both deindividuating and murderous. Even as evil appears banal and death’s face – the face of the Other – is hidden in the hecatombs of mass murder, the feeling of nausea persists and, because of it, we are emotionally incontinent, dumbstruck by Infinity, witnesses of our own incapacity, ‘foolishly excellent’. Somewhere, there, in the mass graves of abandoned life we can discover a name. For us to obsessively search for traces of each murder; of how each of us suffers, as uniquely as absurdly. The place to look is each Other’s face. No matter how unstoppably existence is ‘dehumanised’ the process remains deficient because it is insufferable (do not animals suffer?) Levinas calls us to value the attentive vigilance and sensitive awareness that belie this search and derive our responsibilities from it, rather than from ratio and its call for sufficient reasons and historical authenticity. This amounts to more than existential authenticity à la Beckett and less than political responsibility à la Stoppard; it amounts to an existential attitude that includes valuing anarchic goodness over being and order and expresses itself by asking gratuitously: ‘if not me, now, then who, when?’

Notes 1 Levinas, ‘Humanism and An-Archy’ in Collected Philosophical Papers, trans. A Lingis (Pittsburgh: Duquesne University Press, 1998), p 127. Italics in the original. 2 Ibid., p 139. 3 Ibid. 4 Ibid., p 130. 5 Ibid., p 129, emphasis in the original. Here I am suggesting that ‘Humanism and An-Archy’ should be read together with ‘Reflections on the Philosophy of Humanism’ namely the essay that Agamben cites in his critique of Levinas. 6 Ibid., p 130. 7 Ibid., p 132. 8 Ibid. 9 Ibid., p 133. 10 ‘Something has already come to pass “over the head” of the present, something that precedes the beginning and the principle, that is anarchically despite being, reverses or precedes being. Is it then a something? A something remains in being, assumable and exterior. Here it is a question of an un-assumable passivity, which is

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not named, or is named only by an abuse of language, with the pro-noun of subjectivity. The obverse of being involves a reverse that cannot be turned over. This formula does not result from some complacency for the ineffable and the incommunicable. What is ineffable or incommunicable in inwardness and cannot adhere in the said is a responsibility, prior to freedom. The unspeakability of the ineffable is described by the pre-original element of responsibility for others, by a responsibility prior to every commitment, before being described by its inability to appear in the said.’ Ibid. In his preface to Levinas’s 1935 essay On Escape (De l’Évasion), Jacques Rolland approaches that piece from the philosopher’s youthful work not as an object of historical enquiry but as ‘philosophically alive’. This means that the text is read ‘in the introductory spirit in which it sees itself ’ (On Escape, 4) and therefore its central question – over the need for escape from being – is taken to ‘open the path of a thought that is one and whole (6), a thought that is not only premised on the distinction between Being, or existence, and beings, or existents’, like all existential philosophy, but which developed into a protestation against the boredom, or claustrophobia, of ontological thought that is content to accept as absolute and definitive the character of being. In this section I, too, assume Rolland’s attitude because it seems to me that the ethical term ‘hostage’, which the older Levinas uses for ‘ethical subjectivity’, must be read alongside the younger philosopher’s existential analytic of being as suffering its plenitude to the point of nausea signalling the desire for an escape – which stands, within Levinas’s phenomenology, for being’s need ‘to get out’ of itself without, crucially, desiring to go anywhere in particular. In a more analytically rigorous sense I am convinced by Rolland’s argument, first, that the meaning of the word being developed in Levinas’s youthful text On Escape remains unchanged into the most mature works, and, second, that behind the choice of the obscure metaphor of ‘escape’ lies the requirement of thinking beyond being and non-being which found more adequate philosophical expression in the analysis of the there is – namely the ‘presence of nothing’ to which the darkness of night rivets us – in Existence and Existents, and in the notion of essence – as the indefinite, in the seminal Otherwise than Being or Beyond Essence. (cf. Rolland’s preface to On Escape, pp 27–9). Cf. Diamantides, M, ‘From Escape to Hostage’ in Horowitz and Horowitz (eds), Difficult Justice – Commentaries on Levinas and Politics (Toronto: Toronto University Press, 2006), pp 191–220. Levinas, On Escape, trans. Bettina Bergo (Stanford: Stanford University Press, 2003). I refer to the sense of ‘shame’ in Levinas’s On Escape that is not in the social sense (as shame over lack or impurity) but in relation to one’s presence to oneself: ‘Being naked is not a question of wearing clothes. It is . . . our intimacy, that is, our presence to ourselves that is shameful. It reveals not our nothingness but rather the totality of our existence’ (65). Levinas On Escape, p 65. ‘Q: You asked for a band around the book Existence and Existents with the inscription: ‘Where it is no longer a question of anguish’. Was that irony? E.L.: In my book, it is being that weighs . . . Q.: Not the anguish of nothing? E.L.: It is not the anguish of nothing, it is the horror of the there is, of existence. It is not the fear of death; it is the ‘too much’ of oneself.’ In Robbins, J (ed.), Is it righteous to be? – Interviews with Emmanuel Levinas, (Stanford: Stanford University Press, 2001), p 46. ‘Desire is no doubt not self-sufficient; it touches on need and the disgust of satiety. But in the ontological adventure the world is an episode which, far from deserving to be called a fall, has its own equilibrium, harmony and positive ontological

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function: the possibility of extracting oneself from anonymous being.’ Levinas, Existence and Existents, trans. A Lingis, (The Hague: Martinus, 1978), p 44. The main thesis is that there is no ‘intentionality’ in enjoyment, or that enjoyment does not yet correspond to theoretical consciousness, and, therefore, it does not depend on self-presence. In eating, drinking, breathing I seek to lose myself in the object of enjoyment if only for a moment. Levinas’s thesis that objects can concord fully with desire plays two important functions. First, it is subversive of both bourgeois idealism and of Heidegger’s views of the world as resource, things as tools, technology, etc. ‘In the effort to separate the notion of the world from the notion of a sum of objects we certainly see one of the most profound discoveries of Heideggerian philosophy. But . . . not everything that is given in the world is a tool . . . For a soldier his bread, jacket and bed are not “material”; they do not exist “for . . .” but are ends . . . Desire knows perfectly well what it wants. And food makes possible the full realisation of its intention.’ Levinas, Existence and Existents, ibid. This thesis probably marks Levinas’s work as the antithesis to Lacanian theory. However, as if anticipating the Lacanian view of desire, Levinas says of the erotic subject that kissing and love-bites are a ‘ridiculous and tragic simulation of devouring . . . It is as though one has made a mistake about the nature of one’s desire . . . which one later found out was a desire for nothing’ (ibid. my emphasis). Levinas, On Escape, p 61. Levinas, ‘Reflections on the Philosophy of Hitlerism’, reproduced in Horowitz and Horowitz (eds), Difficult Justice – Commentaries on Levinas and Politics (Toronto: Toronto University Press, 2006 pp 3–11) p 8. Levinas, my translation, Entre nous – Essais sur le penser-à-l’Autre (Paris: Grasset, 1991), p 108. ‘. . . [T]he ego can be called into question by the other in an exceptional way – not as an obstacle which it can measure, nor by the death which it can also give itself. The ego can be brought to accusation, despite its innocence, by violence, to be sure, but also, despite the separation in which the exclusiveness and insularity of the psychic leave it, by the other. The other, as other . . . obsesses it, and, nearby or far off, imputes to it a responsibility . . . for which it had not taken any decision, but which, closed up in itself it cannot escape. Reduced to silence it still gives a response beneath the logos . . . Prior to the amphibology of being and entities and to the state of being a nature, the subject is undeclinable precisely as hostage irreplaceable with others.’ Levinas, ‘Humanism and An-Archy’, pp 132–3. See my ‘From Escape to Hostage’ in A Horowitz and G Horowitz, Difficult Justice – Commentaries on Levinas and Politics (Toronto and London: Toronto University Press, 2006). Levinas, Existence and Existents, trans. A Lingis (The Hague: Martinus, 1978) p 45. Ibid. In brief this refers to the fact that in suffering the subject and meaning dissolve but for the responsibility of the external other to offer succours. Levinas, Entre Nous – essais sur le penser-à-l’Autre (Paris: Grasset, 1991), pp 18–110. Simon Critchley, The Ethics of Deconstruction – Derrida and Levinas (Oxford: Blackwell, 1992). ‘The in of infinity is not a not like any other; its negation is the subjectivity of the subject, which is behind intentionality. The difference between the Infinite and the finite is behind intentionality. The difference between the Infinite and the finite is a non-indifference of the Infinite to the finite and it is the secret of subjectivity.’

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Levinas, ‘God and Philosophy’ in Collected Philosophical Papers, trans. A Lingis (Pittsburgh. PA: Duquesne University Press, 1998), p 162, emphasis in the original. Ibid., p 163. Ibid. Ibid. Supra note 15. Consider this statement: [O]ur age is not defined by the triumph of technology for the sake of technology, as it is not defined by art for the sake of art, and as it is not defined by nihilism . . . [Instead, what] ‘moves our age’ [continues to be] ‘. . . Action oriented towards the Good, towards Height, Infinity . . . a world to come, a going beyond oneself which requires the epiphany of the Other . . . even if the individuals may not be up to its height.’ Peperzak, A T (ed.), Ethics as first philosophy: the significance of Emmanuel Levinas for philosophy, literature, and religion (New York and London: Routledge, 1995), p 50. Levinas, ‘Phenomenon and Enigma’ in Collected Philosophical Papers, p 62. Ibid., p 61. Levinas, ‘Phenomenon and Enigma’, pp 69–72. Ibid., p 62. Levinas, ‘God and Philosophy’, pp 164–65; my capitalization of the word ‘Other’. Ibid., p 165. As is well known Heidegger pessimistically declared our world to be dominated by inauthentic ‘every-day’ life, steeped in technological thinking, whereby man ‘inauthentically’ avoids the anxiety over the nothingness into which s/he is thrown in so far as s/he exists and prefers to lead a dull, herd life. It follows that, say, developing a micro-chip that will restore vision to the blind or working in a homeless centre, are trivial pursuits, as distracting from the philosophical question of being as mindless consumerism and seeking to ‘find oneself ’ by embracing the latest version of ‘group therapy’ or some religious, political or rationalphilosophical equivalent. All hope is lost as man becomes the highly inauthentic das Man, fallen away from his being (Verfall), due to the exaggerated and one-sided technical development. Here I am paraphrasing key ideas from Adam Gearey’s paper ‘Anxiety and Affirmation: Critical Legal Studies and the Critical Tradition(s)’ presented on March 12, 2006 at the Conference ‘Teaching from the Left’, ibid. Niklas Luhmann, Social Systems, trans. J Bednarz with D. Baecker (Stanford: Stanford University Press, 1995). In terms of political consequences of all this, I understood from thinkers such as Badiou, that we live in a social space which is increasingly experienced as ‘wordless’, in the sense that it is progressively impossible to ‘map’ one’s way forward from describing the present critical situation to setting a goal and the means to ˇ izˇek that global market mechanisms operate at the level of achieve it. I take from Z truth without meaning in which meaningless violence is the only suitable form of protest compared with the temptation (into which both liberal and conservative critics of capitalism fall) to think that hermeneutics still matter. The Parisian banlieue are burning – and with them is consumed the idea that something is rotten in the Republic. In terms of psychological consequences, cultural analysts such as Renata Salecl show how the subject experiences the deadlock of free choice in risk society where, without a proper foundation in knowledge, it finds itself having to make ‘free decisions’ on ever more aspects of life and, therefore, dwells in crippling anxiety. And with Zygmunt Bauman, I started realising how the social production of consumerist ‘hyper-individuality’ necessarily generates a human waste in the form of beings excluded institutionally or psychologically. Thus, in relation to the

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riots in Paris in 2006 – quickly dismissed by La Libération as the petty anti-1968, the anti-revolution of the petite bourgeoisie demanding not change but the status quo – those young demonstrators and future unemployed signify nothing but ‘human surplus’. Levinas, ‘Humanism and An-Archy’ p 131. For my idea of being-for-suffering as distinct from being-for-death see the Introduction to this volume. Here is the quote’s context: ‘Agamben’s understanding of the term bare life goes far beyond its classical sources . . . owing to the fact that it relates, not to life’s devaluation by the fact of potential death being inscribed on life’s permanent horizon, not to the anticipatory, deterrent effect of possible capital punishment, but to Dasein simpliciter . . . For Agamben . . . [the] . . . line between life and death has been blurred or opened up to a voluminous fold, capable of sheltering, not only entire populations, but also a whole rationality of governance, a bluepint for reduced life, both human and below the level of actual humanity. This is why the life of the Muselmann of the concentration camp is no longer threatened life. “Threat” is no longer the word for his condition . . . The Muselmann is the living document of the possibility of instituting, as a final, yet permanent, state, a stratum of de-humanised, de-subjectivised existence.’ Schütz, A ‘Thinking the Law With and Against Luhmann, Legendre, Agamben’, (2000) Law and Critique 11, at pp 126–7. Schütz is referring to Giorgio Agamben’s Ce qui reste d’Auschwitz: L’archive et le témoin (Homo Sacer III), quoted after the French edition, trans. Pierre Alferi (Paris: Bibliothèque Rivages, 1999). Levinas, God and Philosophy: in Levinas – Collected Philosophical Papers, trans. A Lingis (The Hague: Martinus, 1987), p 166. Ibid., p 167. Levinas, ‘God and Philosophy’, p 168. Contra Levinas, I do not see why the Other cannot be an animal or indeed an inanimate object. Elsewhere I argued that anarchic responsibility may extend equally to a permanently insensate human being, an animal, a cyborg that is being prevented from performing the tasks for which it was developed, indeed even a structure that appears to be incapable of supporting its weight. Cf. my piece ‘The subject may have disappeared but its sufferings remain’ in Law and Critique Vol. 11 No. 2 2000. Levinas, ‘God and Philosophy,’ p 168. Ibid. See section 2 below. Ibid., p 162. I borrow these epithets – with some liberty as to context, though not too much – from a piece by Anton Schütz where he criticises theorists who, relying on the conventional notion of power as capital of which one can never have enough (‘I have’ instead of ‘I can’), proceed to presume a common object of social desire. Their consensus: ‘. . . takes the characteristics of a sweet poison, tasting like peace but provoking either conflict or, at best, the legal opera buffa of possession and ownership. A great deal worse, however, than this direct effect is the retro-effect on concepts and discourse. By an action in every point comparable to the one that the virus ILOVEYOU exerts on a hard disk, presumptive and idealised desire wipes clean entire theories, putting an imagery of integrity in their place in a matter of moments . . . paralysing the territory of concepts: How can theory escape from this predicament? By abstaining from having something to recommend, per Stanley Fish. The question to be asked is about what theorists are really doing, whenever they are doing what so many of them never stop doing,

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namely “recommending” some view at the expense of some other view.’ Schütz, Anton ‘Thinking the Law’, 133. (The ILOVEYOU computer virus spread around the world as the Millennium approached at the time this article was written). Schütz here refers to Fish, Stanley, There is No Such Thing as Free Speech . . . and it is a Good Thing Too (Oxford: Oxford University Press, 1994). In sum, Schütz and Fish recommend . . . not making recommendations. This is a point made by Pierre Schlag in his paper ‘Ten Thousand cases, Maybe More’ presented on 11 March, 2006 at the Conference ‘Teaching From the Left’ Cambridge (MA): Harvard Law School, 11–12 March, 2006. The papers from this conference will appear in the New York University Review of Law and Social Change. Schlag’s approach to jurisprudence first received wide publicity when he rehearsed it in a hilarious piece entitled ‘All Normative and Nowhere to Go’, Stanford Law Review, November 1990. Jean Luc Nancy has argued that our atheistic cosmopolis does not point to the overcoming but the realisation of Christian monotheism and that faith does not contradict atheism. This is because: ‘Monotheism, in its first principles, undoes theism, that is to say the presence of power that assembles the world and guarantees its meaning. It thus makes the name of “god” absolutely problematic – it makes it non-significant – and above all it takes away from it all power to guarantee . . . The Christian guarantee can only take place at the price of a category that is completely opposed to that of religious belief: the category of “faith”, which is loyalty to an absence and the certainty of this loyalty in the absence of any guarantee . . . But this also means that the atheism that henceforth structures the Western structure, that is inherent in its mode of knowledge and of existence, is itself a Christianity realised’. ‘Deconstruction of Monotheism’ in Postcolonial Studies, Vol. 6, No. 1, pp 37–46, 2003. ˇ izˇek, The parallax view, (Cambridge, Mass.: MIT Press, 2006). S. Z Levinas’s theory of enjoyment centres on the singularity – or ‘ipseity’ – of the self. At the same time this theory forms the basis for his ethics of responsibility. Enjoyment is the self ’s primordial relation to the world whereby that which is other, the material sustenance of the world, is transformed into the Same. The self lives off the other. ‘Responsibility’ comes as a disruption of the self ’s closure in enjoyment, the call of the Other calling into question the righteousness of being a self. Thus, enjoyment is the condition of possibility for responsibility: one must first be able to enjoy before one can give give to the Other with one’s heart. Levinas’s theory of enjoyment is found mainly in his Existence and Existents, trans. A Lingis (The Hague: Martinus Nijhoff, 1978) and Totality and Infinity, trans. A Lingis (The Hague: Martinus Nijhoff, 1969). See note 15. See note 15. ‘He [the ‘bourgeois’] would like to cast the white mantle of his “internal peace” over the antagonism that opposes him to the world. His lack of scruples is the shameful form of his tranquil existence. Yet, prosaically materialistic [médiocretement materialist], he prefers the certainty of tomorrow to today’s enjoyments. He demands guarantees in the present against the future, which introduces unknowns into those solved problems from which he lives. What he possesses becomes capital, carrying interest or insurance against risks, and his future, thus tamed, is integrated in this way with his past’ (Levinas, On Escape, 50). Levinas, On Escape, p 61. ‘Justice is impossible without the one that renders it finding himself in proximity. His function is not limited to the subsuming of particular cases under a general rule. The judge is not outside the conflict but is in the midst of proximity. This

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means that nothing is outside the control of the responsibility of the one for the other’ Levinas, Otherwise than Being, p 158. Consider, for example, legal theorists like Fuller and Dworkin who respectively argued that the legal order ‘must’ aspire to principles of an ‘inner morality of law’ and that a judge with the right interpretative attitude will find that the law provides ‘principled answers’ to legal questions which show the law in its best light by which Dworkin means best moral light, Lon L. Fuller, The morality of law (rev. edn, New Haven: Yale University Press, 1969); Ronald Dworkin, Law’s empire (Cambridge, Mass.: Belknap Press, 1986). This case is Airedale NHS Trust v Bland [1993] 1 All E.R. 821. For my analysis see my Ethics of Suffering. See: Clinton Rossiter, Constitutional dictatorship (Princeton: Princeton University Press, 1948); In the post 9/11 context arguments are made both in favour of systems of ‘checks and balances’ which aim at preventing the normalisation of a state of emergency and of control based on substantive conceptions of the rule of law; for an example of the former see Bruce Ackerman, ‘The Emergency Constitution’ 113 Yale Law Journal 1029–30; for an example of the latter see Lawrence Tribe and Patrick O. Gudridge, ‘The Anti-Emergency Constitution’ (2004) 113 Yale Law Journal 18701–70. Giorgio Agamben, State of exception, trans. Kevin Attell (Chicago, Ill.: Chicago University Press, 2005, first published 2003), pp 47–8. For him the dictator is an ‘uncommanded commander’: H L A Hart, ‘Positivism and the Separation of Law and Morals’ in his Essays in jurisprudence and philosophy (Oxford: Clarendon Press, 1983), pp 49–87 at 59. Carl Schmitt, Political Theology: four chapters on the theory of sovereignty, trans. George Schwab (Cambridge, Mass.: MIT Press, 1988), p 5. For an excellent summary of facts of seminal cases and an analysis incorporating Schmitt and Agamben’s views on ‘exception’ see David Dyzenhaus, The constitution of law: legality in a time of emergency (Cambridge: Cambridge University Press, 2006). From the name of an English maximum security prison. The case is A v Secretary of State for the Home Department [2004] QB 335. See s 23 of the Anti-Terrorism, Crime and Security Act 2001. Chahal v United Kingdom (1996) 23 EHRR 413. For an elaboration of this theme see the Introduction to this volume. The background to its emergence was Brecht’s earlier innovation whereby techniques of representation were coupled with techniques of audience defamiliarisation, distancing, estrangement or alienation. These techniques were designed to make the familiar seem strange, to show everything in a fresh and unfamiliar light, and so to discourage involving the audience in an illusory narrative world and in the emotions of the characters forcing it to reflect on what is being presented in critical and objective ways, rather than being taken out of themselves as conventional entertainment attempts to do. Rosenkratz keeps winning in the coin-spinning game and every time he wins he feels excited, if a bit sorry for taking so much money from his friend. Guildestern, on the other hand, is shocked at the improbable results of the coin spins – what does this mean about the nature of the universe, does probability really exist? – but is also a bit irritated that his friend is not interested in his musings. Thus, neither Rosenkrantz’s guilt nor Guildestern’s irritation ever lead to an action or decision that would kill their playing coin spinning. Play is more important than acting. There is no blame-game decision or action, no resolution and, hence, no sacrifice.

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76 This point is carefully developed by Fred Alford in his Levinas, the Frankfurt School and Psychoanalysis (New York and London: Continuum, 2002). Cf. his contribution in this book. 77 All my discussion of the paradox of the judiciary as both theatre and ritual is a paraphrase of Barshack, Lior ‘Between Theatre and Ritual: Judicial Performance as Paradox’ in Perez and Teubner (eds) Paradoxes and inconsistencies in the law (Oxford: Hart, 2006). 78 Thus, for example, in the aftermath of the introduction of the Human Rights Act 1998 in the United Kingdom, the High Court both condemns the state for ‘disproportionately’ violating basic human rights and ultimately defers to the State’s arbitrary power to declare an ‘indefinite state of emergency’ in which these rights can be suspended. It could not be otherwise, for of course the Court’s decisions mean nothing if not backed by state power. 79 How do baby boomers die? As I am writing, famous US columnist and funny man Art Buchwald is sitting in a hospice, waiting to die having chosen to forego treatment, holding a daily salon by his deathbed and still contributing to major newspaper columns that we could group together under the collective title ‘How To Laugh at Death’. Other satirists now talk of the need to rename baby-boomers into ‘generation ouch!’ This refers to the fact that this is the first generation that works-out so hard well into old age, catching evolution unprepared (apparently broken joints are an epidemic and hip-replacement surgery has never been more in demand) that it turns Matthew’s saying ‘. . . the spirit is willing but the flesh is weak’ from a licence to rest (‘Watch and pray, that ye enter not into temptation . . .’ into a permament source of anxiety. Thus, in the rich North, there is a growing colonisation of what used to be old age by productive life. As overworked limbs keep breaking till better prosthetics are devised or genes enhanced – and do we not know for sure that the next generation will live longer than us? – the fear of death is being reduced to the fear of premature death. In a British TV comic series a mindless, selfish consumerist heroine realises that she too is going to die and, in a fit of anger, lists all the holistic therapies, Eastern-belief systems and health and beauty products she has ever invested in and shouts angrily: ‘I’ll sue!’ 80 As Elisabeth Weber puts it in her analysis of the trauma of the survivors of National Socialism’s banal evil: ‘They . . . suffered the outmost violence of being so very nothing for another that his violence wasn’t even based on a face, which is to say, was not even violence, since, as it is stated by Levinas in Totality and Infinity, violence can only base itself on a face, which disappears in mass murder.’ Weber, E, ‘Persecution in Levinas’s Otherwise than Being’ in Peperzak, A T (ed.) Ethics as First Philosophy, p 73. 81 As Lyotard writes in The Different (echoing Agamben’s similar approach): ‘[t]he authority of the SS comes out of awe from which the deportee is excepted once and for all . . . [T]he deportee cannot be the addressee of an order to die, because one would have to be able to give a life that one doesn’t have the right to have. . . .’ As cited by Weber, ibid. 82 Cf. Cornell’s contribution in this volume. 83 This extreme nausea, I think, is not exhausted or neutralised but exacerbated by the knowledge of statistical ‘information’ concerning birth and mortality rates and the usual concern over scarce resources. Indeed, it is only seemingly that today’s man, with the help of information technology, is capable of avoiding existential questions by constantly processing/managing partial ‘information’ on existence instead of attempting to ‘digest’ its ‘truth’ once and for all as he used to do with the help of religion and the kind of philosophy that, as Levinas saw it, constituted an attempt of the Same to ‘digest’ otherness. True, we remain generally indifferent

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towards the problem of truth. Our elaborate techniques for the constant management storing and processing of always provisional ‘information’ around existence, however, do not ultimately manage to shield us from a sense of nausea to which we now refer as ‘information overload’. Witness the anxiety generated by the constant and often contradictory health ‘advice’ we must take into account when making our ‘lifestyle choices’ combined with the belief in the ‘ultimate’ power of technology to render us immortal. Maybe the day after I die of cancer, a cure will be found . . .

Index

Abjection 75–9 Absurdity, nonsense 5, 7, 195, 205–6; and current politics 9, 205–6; see also Theatre of the absurd Adorno 117–18 Aesthetics 19, 52; the beautiful 19, 59; the sublime 19 Affectivity, non-intentional, excessive: 2, 4, 12, 182, 186–9, 191, 195; see also Sensibility Anarchy, of ethical responsibility: 6–10, 14–16, 22, 24–5, 27, 102–3, 109, 112 120–1, 136–7, 180, 182, 186, 189–93, 196, 201–2, 211 n 48 Androcentrism 94–5 Anthropocentrism 128, 133 Antigone 20, 72–4 Anxiety 185–6, 203 Aporia (in Derridean philosophy) 23, 116, 121, 158 Arab peoples 88 Art, visual: beyond mimetic representation 59, 65; Gothic 61–3; Levinas’s relationship to 56–9; medieval devotional 19, 20, 60–3; of obliteration 59 Atheism 129 Autopoiesis 185 Barbarism 78 Bartleby politics 188–9 Beckett, Samuel 9 Bio-politics, bio-political, bio-power 180, 186–7, 180, 185–7, 203, 207 Calumny 90 Cannibalism 78

Caress 57, 61 Charity: 184, 186–7; in Levinas’s thought 49–50, 66 n 13; medieval conceptions of 53–5; see also Mercy Christianity, Christian: art 60–4; conception of friendship 94; depoliticizing logic of 94; and law 52–6, 153; Levinas on 4, 84 Comedy, Divine: 26, 183 Community 15, 130–3, 137–8, 185, 202; Communauté Inavouable 187; communitarian, communitarianism 118, 137 Creation 128–9 Critical Legal Studies 26, 182, 184, 186, 188 Cyborg 200, 205 Cynicism 9, 13, 116 Dance 96; see also Exotic Death 25, 166–76, 186, 193, 200, 203, 205–6, 207; Heiddegger on 172–5, 199; Levinas on 173–5, 179, 204–6; see also Right to die Democracy 14, 22, 103, 114, 116–17, 121–3, 127, 137–8; democratic theory 138 Demos, anarchic 103 Derrida, Jacques 111, 118, 131, 134, 148, 159, 185; Adieu à Emmanuel Levinas 97–101 Desire 2–4, 10, 12–14, 18, 22, 24, 28 n 5, 30 n 38, 57, 78, 129, 132, 134, 180–91, 195, 199–202; idealist 134; infantile 2; male 78 Devotion 166 Dictatorship, dictator 193, 196 Divine Comedy: see Comedy

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Index

Duty of care (in the Common Law) 25, 146, 147, 151 Egoism 112, 181 Emotion 4; see also Affectivity; Sensibility Empathy 9, 156; difference from ethical substitution 5, 16 Enemies 87, 90 Enjoyment 3, 77, 111, 129, 189, 199–200 Entre nous: see proximity Eros, eroticism 57, 58, 59, 182, 191 Excellence (ethical) 127, as foolishness: 26, 179, 184, 191–2, 195, 198, 202, 207 Exotic 96 Face of Christ 60, 64 Face of the Other 3, 5, 19, 45, 42, 44, 56–61, 72, 94, 110–11, 113–17, 120, 133, 135, 136, 153, 175, 181–2, 184, 187, 204–5, 207 Face-to-face 3, 5, 15–16, 18, 23, 45, 77, 93, 114–15, 118–19, 131, 133, 136, 182–4, 189, 192, 201–5 Faceless, without face 23, 27, 62, 76, 116–17, 122, 201, 204–6 Faith: 183, 212 n 55 Family 72, 95 Fanon, Frantz 78 Fascism 8 Fecundity 61 Feminine, the 16, 18, 20, 36, 43–4, 94; critique of Levinas’s use of 73–9; see also Abjection; Androcentrism; Women Filiality 95 Forgiveness 18–20, 37, 39, 40–4, 49–51, 59; see also Mercy Formalism, ethical 17 France, French state 96, 97 Frankfurt School 23 Fraternity 94, 126 n 47 Freedom 3, 8, 11, 79 n 2, 112, 114, 131, 134–5, 138, 195 Friendship: Christian conception of 94 Generosity, gift, giving 59, 74, 115; and abjection 20 Hedonism 3, 190 Height 111, 131

Hitlerism 116, 181 Hobbes 108 Holocaust: see Shoah Holy Land 90 Homo Sacer 15, 187 Hospitality 15, 158; Derrida on 98; see also Generosity: as abjection Humanism 3 Hypostasis 38 Idealism 130, 134, 181, 185, 189 Il y a: see There is Image: effects of the Reformation on 63, 64; visual 56–8, 60, 63–5 Imbroglio (ethics as) 188 Immanence 127–8, 130, 132, 206; defective 2; and the experience of the absurd 9, 206–7; Immanentism 15, 129, 136–8; interrupted 15 Indiferrence 114, 186, 195; non- 4, 183, 209–10 n 26 Inditerminacy 98, 101, 182 Individualism 109, 114, 121, 123, 203; inverted 119; opposed to ‘Singularities’ 137 Individuation 4, 7, 18, 45, 166; see also Subjectivity and Singularity Insomnia 11, 12, 187 Intentionality (Phenomenology) 5, 7, 72, 183, 187, 209 n 16 Interiority 18–19, 26, 35–8, 41–6; see also Subjectivity: exposed position Intimacy, intimate 18, 123, 131, 182, 187; self- 19 Islam 96 Israel 96; State of 20, 21, 83–91, 95, 96, 158; Israeli Arabs 96 Iterability (Derridean philosophy) 26, 185–6 Judaism 4, 84, 86 Judges/judiciary 165, 191–6, 202 Jurisprudence: critical 2; ‘Kafkaesque’ 11, 13, 14; liberal 10; see also Critical Legal Studies Justice 9, 10, 16–17, 19–20, 23, 26, 35–7, 41, 43, 44–7, 49–55, 60, 64, 65–6 n 12 66 n 13, 66 n 27; 66 n 28; 90, 91, 94–5, 99, 114–22, 131, 134–6, 138, 146–7, 160, 166, 173, 176, 182–3, 186–91, 212–13 n 62; distributive 115; Medieval 52–5; sensibility of 45, 114, 192–3

Index Kafka, Franz: The Trial 11, 13, 14, 15, 187 Lacoue-Labarthe 128–39 Law: constitutional/public 197, 202; ecclesiastical 52; and equity 50, 53; individual experience of 11, 13; and judgment 159; and justification 18; law’s ‘inner morality’ 194; in Levinas’s work 17, 50, 51, 72, 147, 152, 182–3, 191–2; natural 182, 192–3; of negligence 24, 145, 151; origins of 10, 52; positive 2, 6, 7, 10, 11, 13, 14, 184, 192–3; Roman 53; rule of 27, 191–2, 196, 198, 205, 207; secular 52, value of 160 Liability, strict 6, 7 Liberalism, liberal 2, 7, 8, 9, 10, 14, 22, 23, 108, 113–19, 122–3, 137–8, 181–2 Marxism 4, 181–2 Mercy: in the history of Western law 60, 63–5; see also Charity Metaphysics 3, 112, 118, 128–9, 138–9 Misogyny 11, 16 Monotheism 94, 212 n 55 Murder 3, 27, 173, 196, 203–6; mass murder 27, 203–5, self- 166, 171; state murder 27, 203 Muselmann 187 Nancy, Jean-Luc 128–39 Narcissism 75, 111, 113 Nationalism 101 Nausea 3, 8, 9, 26, 180–1, 189–90, 196, 199–200, 204–7 Nihilism 199, 201 Obsession (Levinas’s ethics) 2, 23, 7, 16–17, 20, 27, 58, 61, 76, 116, 181–2, 184, 186, 191, 195, 198, 207 Orestes 10, 15, 16 Palestine/Palestinians 21, 76, 77, 95, 156 Paradox, paradoxical 134, 135, 147, 202, 203 Passivity (Levinas’s ethics) 1–2, 4–7, 20, 26, 45, 74, 180–1, 183, 187, 191, 194–5, 199, 207–8 n 10; and senescence 45; see also Imbroglio Poetry, as a kind of Levinasian saying 58, 89

219

Politics: anarchic disturbance of 102; identity 46; and justification 18; left to itself 19, 42, 46; not left to itself 43; the political 23, 36, 47, 101, 102, 127–8, 130, 134, 136–9, 198; political decisions 98–100; political invention 98, 99; political sensibility 132; ‘pure’ 9, 15, 203; see also Bio-Politics Posner, Richard 10–11 Post-structuralism 1, 8 Primitivism 78 Prophecy, prophet, prophetic speech 24, 87, 120 Proximity (Levinas’s ethics) 5, 7, 12, 15–16, 24–5, 27, 50, 57–9, 61, 63, 66 n 27, 102, 115, 127, 131, 134, 135, 145–8, 150–5, 156–60, 182, 184, 189–92, 195, 201, 212–13 n 62 Prudence 195–6 Psychoanalysis 2, 75, 179, 189, 202; on function of dreams 12 Racialism 191 Racism, Levinas’s 96 Reason, instrumental 23 Rechstaat 27, 202 Recognition 19, 36–8, 40–4, 46–7, 188, 202 Reformation 64 Remorse 4, 62 Representation in art 56, 5; effects of colour 65; in philosophy 72 Responsibility 4–13, 16–17, 21–7, 35, 42, 50–1, 60–1, 66 n 27, 72–3, 84, 87–8, 91, 93–5, 98–9, 101, 108, 113, 115–16, 119–23, 132, 135–6, 145–60, 175, 181–7, 189, 191–4, 196, 198–201, 205–7 Right to die 25, 165, 166, 169, 170, 174; Kant and 171–2 Right to refuse medical treatment 167 Sabra and Chatila, massacre of Palestinian refugees: 21, 90, 95, 156, 157 Sacrifice 27, 87, 115, 160 Salus animarum salvation of souls 53 Salus populi 6, 196 Scepticism 8, 9, 26, 180, 182, 191; and cynicism 9, 13; and post-structuralist thought 1 Self-referentiality, of existence, defective 2, 180, 190

220

Index

Sensibility: 3–6, 9, 16, 18, 19, 20, 24, 27, 43–6, 57, 58, 64, 67 n 44, 186, 190, 200, 203; and legal justice 27, 45, 114; and political justice 24, 45, 132; see also Affectivity Separation of powers (constitutional theory) 195 Sexism: in Fanon’s work 78; in Levinas’s work 21; see also Feminine and Women Shame, as existential condition: 8, 180–1, 187 Shoah 21, 73, 88, 89, 188, 204 Silence: defined by Levinas 44, 84; Levinas’s 21, 83 Singularity 128–30, 132–3, 137, 195 State, the 17, 25, 72, 108, 109, 122, 147, 158, 195–6, 202, 205 Subjectivity: 2, 5, 12, 179, 166, 170, 182–4, 185–7, 201; as exposure 18, 19, 37–41, 44, 132; as ‘irreplaceable site of suffering’ 26; in ontological philosophy 1; as ‘unique’ 4; and weakness 1; see also Singularity and Individuation Substitution (Levinas’s ethics) 5, 23, 71, 102, 119, 126 n 47, 127 Suffering: 4, 5, 6, 7, 8, 13, 166, 168, 171, 176, 182, 195–6, 200, 207; absurd 5, 7, 194, 196, 200, 207; being for 6; legally significant 6, 7, 195; and politics 6, 166; useless 4, 6, 7, 8, 182, 195

Talion 50, 51; see also justice Teaching law 188 Technology 180, 183, 210 n 31; see also 210 n 38 Theatre of the absurd, metaphorically (for rule of law) 197, 205; literally 198, 206; Theatrocracy 201–2 Theory, theoria 14, 23, 128, 186, 188 There is, Levinas’s il y a 3, 9, 39, 61, 133, 180, 200, 202 Third party, the, to an ethical relationship of proximity, Levinas’s Le Tiers 17, 18, 19, 36, 42 Time 4, 38, 39, 41, 45, 71, 166, 175 Tolerance 119, 121–2 Totality, totalitarian, totalitarianism 35, 51, 111, 114, 115, 117–18, 120, 131, 136–9 Touching 58, 167 Tragedy, Greek 3, 4, 9; and the theatre of the absurd 9 Trembling 85, 86 Unconscious, the 202 Visual: see image Women 20, 76, 95 Word, written 64 Workaholics 190 Zionism 85, 88, 90–1, 95, 101