(applause)
- I am very moved and it's very strange,
I have to say,
to be here
and to think back
to the time when I first walked into
The Graduate Center offices
on 42nd Street.
I was a dancer.
And I really missed writing.
And I remember
meeting Mary Ann Caws,
Burton Pike, and Fred
Nichols, may he rest in peace.
And all of them said,
"There's no problem."
And they were first academics
that I ever met said,
"There's no problem.
(audience laughing)
"You can do both."
You can have a body and you
can work with your mind.
So this was a tremendous thing,
but more than that Mary Ann
Caws was also a Southerner.
And for me this was a very big deal.
She had wit and grace, but
she also had a combination
that my Mother warned me was
a complete impossibility.
My Mother used to say,
"if you're serious, you
just can't be charming."
And Mary Ann was both and so,
(audience laughing)
I had an idea that you
didn't have to choose.
So, for me, both as a
dancer and a Southerner
and a person who grew up
with the idea that the
intellectual life was really,
as my mother would say,
"the kiss of death."
This place was amazing.
And it was amazing also because,
especially now in this time
of increasing specialization
with turf wars and territory
and disciplinary divides,
The Graduate Center encouraged
interdisciplinary work.
People sometimes ask me and
it makes me feel rather old,
"How do you know this?
"I mean, like, how did you know that?
"Where did you read that?"
And the thing about The
Graduate Center was that,
there was no problem if you wanted
to do Middle High German
and Old French.
Fred Golden taught a class on that.
We encouraged to do whatever
you were passionate about.
So, I owe a great deal to the place.
I'm really, for that reason,
glad to be here and be back.
And most of all, I have to say--
It sounds so exaggerated, I
wasn't going to say it but,
I do think that if any
one place, any abode,
could make you who you are,
The Graduate Center did that.
So, thank you all, for
whatever it's worth.
Tonight I'm not gonna speak about dogs.
The dog thing obviously
deserves some explanation,
but I can wait for a questions about that.
I'm going to speak, of
course, about the law
which has now, for about 12 years,
been the place--
Ever since I wrote about
the Code Noir in Haiti,
the idea of law and the
rules of law having more,
more power actually and
more determining power
to create what we think
of as social norms,
has impressed me.
So, teaching close reading
of case law matters
a lot
to understand why America is what it is
and what it's become.
A year ago I spent a week reading my book,
The Laws of White Dog, with inmates
at Riverbend Maximum
Security Prison in Nashville.
We challenged each other
to see things differently,
to get at the force of legal language,
to flush out its fiction,
and to see its categories
crosswise or otherwise.
I want to begin with the words
with one of these prisoners,
Rahim Buford, just published on his blog,
Prodigal Sons: Voices from the Inside.
"Lingering in the air of
the poorly ventilated space
"is a musky odor that blends
with the echoes of bare feet
"smacking against rows of square
tiles on the smooth floor.
"Holding my breath
"for what feels like
a slow-motion picture,
"I endure this divorce from humanity,
"a ritual of thingafication,
"a manifestation, that is concrete,
"of the abstract concept
of dehumanization.
"It never occurred to me
that what was happening
"all this time
"is ritual."
So this evening, I want to
start with a general question.
What is the terrain for human cruelty?
And who gets to command its
shifts, in species and race?
It's impossible here
to produce elaborations
on a brutality that comes before
and after all the enlightenments
that have sanctioned
authority and violence.
So I direct my thoughts
instead to a project
that points not only to
the law and its effects
but also provisionally to the need
for philosophical inquiry
that is also political.
There is no such thing as an
apolitical natural history.
We have only to look
at Edward Long's 1774,
History of Jamaica, to
see how a description
of flora and fauna enlivens and
sustains a racial prejudice.
Even the institution of
slavery had much to do
with how the Earth was imagined.
Its landscape.
Its animals.
Its flora.
So I lean toward an interpretation
of literature, history and politics,
and this is
the work that I am most currently teaching
in the law school,
that sticks us hardly in the world
of particulars and concreteness.
The alternative reality of law
is then a philosophical problem
that has everything to
do with how unlikely
or rather how the
unlikely are extraordinary
is always part and parcel
of the commonplace, the daily.
Tonight I'd like to layout
a different landscape
for judicial and social cruelty.
In my previous work, I try to account
for specific history that
might explain the perpetuation
of legal stigma, whether in the
Code Noir in Saint Domingue,
on the eve of the Haitian Revolution
in the rules, regulations
and experience of slavery
in the American south or
the fact of civil death
after emancipation in New York and beyond.
I extended the practice of
ritual to the exercise of law.
I recognize legal rituals
as form of religion
from which law could not be divorced.
Rituals of law, I argued, had
the ground and the impetus
in a very colonial understanding,
not only of crime and punishment
but of body and mind.
That work might be
encapsulated as follows,
"a quest to understand how
codes of law reconfigured
"the logic of punishment as
the language of sorcerers
"and the philosophy of personhood."
In my more recent writing,
I offer another kind of
creaturely experience
that upsets the reliable
and reasonable and the
moral order of things.
I don't mean here to call to
mind any concept of relativism
but rather to cast doubt on the robustness
and transportability of
the ontological partitions
that we so easily assume.
This is a very personal bias
since I've long tried to invoke,
even if tentatively, the seepage
between entities assumed to be distinct,
whether dead or living,
inanimate or animate,
commonplace or extraordinary.
Such a suspension matters to me,
both literally and figuratively,
as a matter of politics and of aesthetics.
The necessity of working
in the interstices
has been with me for quite some time now,
ever since I first read Mallarmé
who tackled the,
"centre du suspense vibratoire,"
in pursuit of pure poetry.
Some 80 years after him, Frantz Fanon,
in calling for peoples
revolution summoned,
"la zone d'instabilité occulte."
From inside this space
between poetry and politics,
I appeal to a novel textual environment.
I'm an old-fashioned close reader.
I want to reshuffle the
terms of how we come
to know what we cannot know.
I consider some of the
cruelly deleterious ways
in which dogs and humans, for example,
are brought before the law,
at once made and unmade as
subjects of punitive regulation.
What I ask, in extending
the legal standard
of unnecessary suffering
would necessary suffering look like?
Or I try to interpret a phrase,
like quote,
"the minimal civilized measure
of life's necessities."
These are legal formulae
that have been repeated
since slave law all the way
to the contemporary prison.
How are we to explain in granular
and theoretical registers
the generally invisible
nexus of animality,
human marginalization,
and juridical authority.
And again, this is not just
a philosophical inquiry.
I want to contribute to the understanding
of how, where and why human beings
often quite arbitrarily devise formulae
and apply lines separating
the human and animal or
the human and non-human
or more interestingly, I think,
deliberately blur those lines.
And here of course I am
thinking of the old dichotomy
between primitive, barbaric
and civilized savage.
Animality and humanity.
In a general sense and
overriding this entire talk
is a concern with how
disregard works in our society.
To recognize the exclusion of persons
that are deemed noxious to the community
of well-meaning citizens.
To be made superfluous is
to be outside the pale of human empathy.
And I want to argue that the law frames
the waste products of society
in peculiarly salient ways.
Once violence is authorized it can never
be impermissible or legal.
Or illegal.
When behavior is judged along a continuum
from ideal, prudent, normal
to sullied, delinquent, reckless,
general legal standards
become the foundation
for conditions of civil life.
But also by the same token
for the ostracism of the poor,
the unfit, the racially suspect,
these are two sides of the same coin.
So the choices I've made for this talk
bear a relation not only to
the brute violence of our times
but also to my trepidation in confronting
so capacious and persistive
a topic as law language,
the language of law.
A verbal environment that, as I said,
is manifestly a literary terrain.
In my desire to find ways both to describe
the current state of affairs
and to change it
I turn to that space
between the legal and the literary.
I recognize that the pernicious
effects of that anodyne
but strategic label of the
discipline law and literature
can best be described
as the depoliticization
of what lies in both fields.
So in extending to treatment
of persons and property
to both legal and literary texts,
I'm not partial to our usual understanding
of that conjunction, law and literature.
I don't take one or
the other as a standard
against which we can work
analogy or comparison.
It seems to me that
that copulative exercise
to neatly leaves law and
literature each intact
in their separate corners of thought.
That penchant for analogy
eschews or rather assuages
the collision and conflict so necessary
to their historical specificity
and political reach.
If we were to unsettle
disciplinary boundaries
we might get at the visceral punch
of legal language.
In the process we might also recognize
how the literary text presents ambiguities
that case law will not put forward.
So I invoke the oscillation
between these categories
that bind.
In other words, the world I
summon here is that standing
at the interstices that dismantles
the privileged dichotomies of
law and life in the Americas.
Now Herman Melville hovers
throughout my thoughts.
Today he understood perhaps
better than any other writer
in the so-called American Renaissance
how the forms of speech
and heights of artifice,
not to mention legal authority,
went hand in hand with the
history of extermination.
Not only did Melville find himself in law,
he created identities
most recognizable in law.
You don't have to look hard in Melville
to find the skeletons in the closet.
In Moby-Dick, for example, Ishmael relates
how the bones of one
of the earliest species
of whales were found in Alabama.
But by far, the most wonderful
of all citation relics
was the almost complete vast skeleton
of an extinct monster
found in the year 1842
on the plantation
of Judge Creagh in Alabama.
The awe stricken credulous
slaves in the vicinity
took it for one of the fallen angels.
A very ignored passage in Moby-Dick.
(audience laughing)
Coming out of the upturned earth
we find a remnant of legal history.
Something that transpired
not only in the South.
The Alabama that is also
the birthplace of Pip
but also in the heavens.
Natural history here
is entangled with the fall
from paradise and the law
in the person of Judge Creagh lives on
through the presence of slaves.
Just as the perils of extinction collapse
in this fantastic surmise.
So the question is can
strike following Melville?
Can we strike through mask?
Are we prepared to readjust
ourselves to a conception
of human life that turns
our own reality upside down.
With us, it is the real world
that seems the immediate thing,
and the supernatural world, for example,
something above and beyond.
But once in the precincts
of law the immediate thing
is the supernatural and then
of course the term supernatural
would be an inappropriate term.
It would be better to
say, "all too natural
"or natural to the nth degree."
And by the same token it is as though
what we call the real world
where injury is obvious
and it's meaning clear
is no more than a symbolization
of events in the world of legal ritual
where what is most bizarre,
most incorporable, most demonic,
is recast as reasonable.
At issue here then, is not
whether ghosts are gods
or angels are real but whether
or not in the legal world,
an autre of fictitious situation
is put forth as natural
or uncontroversial.
A relentless acceptance of
unreality is the necessary.
The most necessary part of legal history
and crucial to it's mythology.
Because what we turned
into ghosts originated
in the legal language
of property and persons.
This logic of domination was
never outside of civil society.
Legal thought, especially when enthralled
to the necessities of slavery,
relied on a set of fictions in
order to sustain the concepts
of property that could think
and of humans who were chattel.
This fictive domain,
whether from a practical
or theoretical perspective,
is grounded in the habits
of and usages of daily life.
The raw materials of legal authority,
its codes, fictions, and
rhetoric are preconditions
for the rationalization of casual cruelty
and commonplace harm.
I'm hitting hard on this
idea of the grounding
of law in our habits and usages
because if you've ever
talked to some lawyers
the idea that it's a guild and that it is
very separate
from what we do everyday, what
we think of as commonplace.
Alright.
So how do then apprehend the
unreality of legal rules.
This is another alternative
world where laws symbolic labor
unleashes fictions that articulate
the rationality of racism.
Naturalized that rationality by none other
than Chief Justice Taney
in Dred Scott as a quote,
"perpetual and impossible barrier."
Up against the law, the
supernatural turns into the rational
and the world of nuance and
proliferating possibilities
disassembles into the
psychopathology that Fanon described
in Black Skin White Masks.
"The black soul," he wrote,
"is a white man's artifact."
Tocqueville recognized that,
"nothing can be more fictitious
"than a purely legal inferiority."
And yet democracy in America
read like a founding text
for an impossible equality
between future black freed men
and a future though ever phantasmal
or more precisely ineffective
multi-racial citizenship.
He understands how deeply
an imaginary inequality
remains, quote, "implanted in
the manners of the people."
Considering how despotism
operates in a society of equals,
Tocqueville wrote with some vehemence,
"the government of the Union
depends almost entirely
"upon legal fictions;
"the Union is an ideal nation
which exists, so to speak,
"only in the mind, and whose limits
"and extent can only be
discerned by the understanding."
It is that hierarchy
of mind and the ritual
of separation it generates
that concerns me.
The color line is always with us
and becomes more pronounced
whenever modulated
by another expression
that is just as supple.
The projection or promise of a society
that is quote, "colorblind."
The word color is fictitious.
What is not always observable.
Not fact, but a presumption of status.
In the United States it took
a universally applicable
concept of blackness to
underpin both a sense
of white superiority and the privileges
that were supposed to stem from it.
So in some sense, the contrary
intensities or fissures
of color or blindness to
color are mutually adaptable.
The potent archaism of law
can always be appropriated
so as to conventionalize
these very mundane
but annihilating inequalities.
How are ideas such as progress of freedom
sustained in an era of
increased surveillance
and militarization
against black communities
and other communities
in the United States.
Speaking broadly, I would say
echoing Frederic Maitland,
that it is in legal
documents and legal forms,
that the social and economic arrangements
of remote times are best made
visible and applicable to us.
The Black Codes, penal
sanctions, and other forms
of unfreedom, the juridical no man's land
of immigration and deportation
and wide ranging
administrative enforcement
form the the skeleton
of our body of politic.
But we can't be too scornful of bones
even if they're dry bones.
We must know their anatomy
for it is in legal structures
or in the juridical
elements held in our mind
and repeated over time as precedent
that become the definitions that matter.
Recalling Agamben's opening
gambit with Foucault
in the beginning of Homo sacer, I ask:
Can we construct an analytic
of power that would not
take law as its model and code?
I am perhaps too much attached to the law,
attracted to a power
that is most effective
when least reasonable,
most compelling when it flies
in the face of the obvious.
In the range of comparative disabilities,
it could be argued that
legal constructions
should not be given such
free play or emphasis.
Can a statute with the purpose
of punishment be changed
from penal law if it furthers
some other legitimate purpose
besides punishment?
What if something that
sounds like penal law,
once announced to be a
Congressional exercise
of the war power becomes non-penal
as if a new label has
just been pasted on it.
Blood sticks to new rules.
Think assassination by drone,
of targeted enemies or
suspects or non-suspects
who just happen to be beside them.
What might be termed
execution of non-convicts
in a non-war in an out of
the way foreign country
or not so out of the way.
A seemingly vague phrase
gains concrete significance
through its history of application.
Changing circumstances once
immobilized its precepts
become the lifeblood for the
deathlessness of legal inquiry.
So though incomplete as
descriptions of practice,
judicial opinions are complete wholes
of structures of thought.
What Robert Cover called the,
"task of construing broad
constitutional language,"
summons a history so deeply
rooted in our memory,
that while certain facts are repress,
the emblems of power and
privilege never pass away.
In 1819, when Missouri requested
admission to the Union,
as a slave state,
Judge Joseph Story publicly declared
for the complete eradication
of slavery from the territories.
It was one of his only public
stands on a political issue.
Writing circuit for
the U.S. Supreme Court,
he wrote to James Kent,
who was still sitting
in the New York Court of Chancery
and would soon rise as magisterial
Commentaries on American Law.
Kent knew that an end to
slavery, what he called,
"that great moral pestilence,"
depended on whether he could
awaken the ardor of the bar.
He found that promise
of transcendent justice
and passion in principles of equity
not in the rules of common law.
For Kent, as for Story,
and for many 19th century
legal commentators law had
to be given flesh and blood.
Not only because they
because they both disapproved
of legal slavery but because
in 19th century America
the law mattered, perhaps
in ways now unthinkable.
To shape matters of the heart,
to give or annihilate a sense of identity,
to transform individuals alternately
into legal subjects and legal objects.
And most of all to treat
property as origin of rights
and the rudiments of personhood.
But however we interpret
this awesome equivocality,
to understand the law at work
to put the legal in league
with the kind of ethnographic critique
that will lead us to understand
how taxonomies or fictions,
whether of blood or color count more
than any visible or obvious facts.
So give legal language
an attentiveness nearly
ethnographic in its intensity.
There is no place where
such legal ethnography
is so fiercely worked out as in Melville's
Bartleby, the Scrivener.
(audience laughs)
(laughs) As you all know.
Kent's character in service
of the ever elusive spirit
of equity haunts the
offices of Wall Street
in this story that was set
after the courts abolition
of chancery in 1847.
In a time of unrelenting taxonomies,
when persons became things,
either perishables in the market
or fixtures on land
where felons died in law
but lived in fact,
Bartleby stands literally
at the limit screen
or chancel of these categories.
Destabilizing the definitions so crucial,
not only to property and slaves,
but to the regulatory
beneficence of civil society.
Or to put it another way,
the figure of Bartleby
is a perfect instance
of what it might mean to give
a body to a legal fiction.
My greatest concern, again
is the spectacle of law
and in this instance the spectacle of law,
moving from a structure
of norms and rights,
to the unequivocal
logic of incapacitation,
historically situated and
rhetorically persuasive.
Statute and case law were as
important as social practice,
I'm arguing or spiritual belief.
Not only in effecting
strategies of exclusion
but in demanding a unique
definition of persons.
Those civilly dead entities
though possessing natural life
have lost civil rights
and again,
the legal paradoxes are gothic turns
between tangible and intangible
or life and death became necessary
to the idiom of disability and racism
that is so much a part of
the American social order.
That disabling and it's long shelf life,
sustained legacies of slavery
and it sustains them now
in the forme of state
violence and criminalization.
There are correlations to be made
in these varying narrations.
The theories and concepts
of legal authority
with unlimited resources at its disposal
of affirming and negating,
acknowledging and ignoring,
giving and taking away.
The undoing of personhood
has a sorted history
in the United States where the creating
slaves as persons in law,
criminals as dead in law,
or that unique or perpetual recreation
of the rightless entity.
The person who has quote,
"lost the right to have rights,"
as Chief Justice Warren put it
in Trop versus Dulles in 1958.
I wanna turn for a moment to a speech
that has haunted me for a long time.
It's The South Knows Us.
It's Frederick Douglass's
great speech of 1879,
written before the Civil
Rights Cases of 1883.
Douglass said that he felt secure
that the supreme law of the land,
the Constitution of the United States,
would not be, and I'm quoting,
"changed or effected by any
conjunction of circumstances
"likely to occur in the
immediate or remote future."
He trusted in the citizenship
granted in the 14th Amendment.
But race, hatred, and violence
changed and effected the law of the land.
This was fully realized in
the Supreme Court decision
that declared the 1875 Civil
Rights Act unconstitutional.
The decision in the Civil Rights Cases,
generally, returned the
greater share of power
from the United States
to the individual states
but most important it
struck down the provision
of the Federal Civil Rights Act
that criminalized racial discrimination
in certain quasi-public venues.
In his dissent, Justice Harlan recognized
that the 13th and 14th Amendments,
as well as the Civil Rights Act,
were enacted not only to abolish slavery
but also to remove what he called,
"the race line."
That was the substance he
wrote and spirit of the recent
amendments now sacrificed, as he put it,
by a subtle and ingenious
verbal criticism.
During Douglass's final years,
in the last chapters in his
often wrenching Life and Times,
where he also told a story
of his vile treatment
in Haiti as Ambassador.
The vile treatment was not by Haitians.
It was by the New York Times.
He composed his lament for what he called,
"this National deterioration."
In his account of the purpose
of the majority decision,
he analyzed how a basic fear of proximity
or that it matters,
took hold once equality was recognized.
And I'm reading his words.
"When a colored man is in the same room
"or in the same carriage
with white people,
"as a servant, there is no
talk of social equality,
"but if he is there as
a man and a gentleman,
"it is an offense.
"What makes the difference?
"It is not color, for
his color is unchanged.
"The whole essence of the
thing is in its purpose
"to degrade and stamp out
the liberties of the race.
"It is the old spirit of slavery,
"and nothing else.
"To say that because a man rides
"in the same car with another,
"he is therefore socially equal,
"is one of the wildest absurdities."
Douglass recognized how civil
realities created the meaning
of the word social.
Or to put it another way,
how statute and case law
became crucial to this
split, assumed split,
between private and state racisms.
Another words, between
civil and social equality.
So law, for Douglass,
not only created means
of enforcing status, it
also assailed black lives.
A little over a year ago and
sentenced to a slow death,
editors of the New York Times,
reported that judges bound
by mandatory sentencing laws,
are sentencing to life imprisonment
without possibility of parole people,
most of all African Americans,
who have done nothing more than selling
$10 worth of marijuana,
syphoning gas from a truck
or simply possessing a crack pipe.
How numerous are the forms
of death and life meted out
to those marked for exclusion.
Life with parole, LWOP, the
novel and absurdly expensive
substitute for state sponsored execution,
often in the mind killing isolation units
of the Super Max
is for many a punishment worse than death.
But though apparently, the
New York Times found shocking
this attack
on those guilty
of rather small
crimes.
The extreme and anomalous
practices of punishment
in the United States, as we've heard,
should come as no surprise.
Civil death matters a great deal to me.
People keep ignoring it
because everybody likes--
We always are thinking of
Patterson's Social Death
and the idea of the--
Social is much more
attractive perhaps than civil.
But civil death, we have to remember.
It was abolished in England
in the early 17th century.
It crossed the waters and lived on here,
even though
our constitution says
that there is no such thing as attainder.
Now, the history of civil
death is crucial to remember.
It was first in the middle
ages attached to the blood
of a criminal capitally condemned.
It soon followed upon a
sentence of life imprisonment.
But this was a consequence
rare at common law.
It was only in the United States
that civil death became
equivalent, in some states,
to being imprisoned for life.
So to be dead in law, in this country,
meant to be deprived of the right to vote,
to sit as a juror or hold office,
even or marry or leave your
property to your children.
It meant that you were
forever distinguished
from others civilly alive people.
In the words of one 19th century
postbellum Virginia judge,
the prisoner was a slave of the state.
So the anachronism of civil
death came into prominence--
It's important to remember in this country
only with the abolition of slavery.
But we're still not out
of the fog and fiction
of this medieval jurist prudence.
The disenfranchisement of
offenders and ex-offenders
forever barred from voting is estimated
to effect nearly 6 million people.
One and a half centuries
after the end of slavery,
African Americans are 14% of
the population of this country,
yet they constitute 38% of those
deprived the right to vote.
The future is dire without
legal and constitutional
provisions at the state level.
Three and ten of the next
generation of black men
will be disenfranchised at
some point in their lifetime.
So this talk is gonna
end with a reflection
on the continued criminalization
of African Americans in this country,
which I believe drives our Nation
legally, politically, and socially.
That a city elected a black mayor,
the country a black president,
changes nothing for many
of our fellow citizens
who face casual cruelty and enduring harm
simply because they are black.
And now, after the recent
and unpunished deaths
of unarmed citizens, Mike Brown,
John Crawford, Eric Garner,
Oscar Grant, Tanisha
Anderson, Akai Gurley,
Tamir Rice, and others, many others.
The hyper legal disregard
of these lives expresses,
yet again, the normalcy of laws force.
How do we understand
the rule and role of law
in a country with such a
long history of legal stigma
and obligatory degradation.
What happened in Ferguson
and Staten Island,
what happens with regularity
all over this country
of course has this history.
When slaves were emancipated,
we criminalized blackness
with Black Codes and Jim Crow.
When those laws were overwritten,
we criminalized blackness through
the disproportionate
enforcement of drug laws.
Now our prisons are filled
with African Americans
who bear witness to a legal system
that projects not their crime
but rather a fantasm of criminality
that is almost always black.
Now, I am not going to discuss in detail
the similarities between slave law
and our current law but let me say
that the sites of this
disfiguration are installed,
and this is my argument,
always in the scaffoldings
of the quotidian.
And much like ritual,
they depend for their power on the turn
to repeated
words.
Their is a way in law
and of course this is probably
why my Father told me,
"you could never be a lawyer
"and you shouldn't be.
"You must be rational for that."
And the emphasis on rational agency
is very much a part
of legal discourse.
But let us reflect on how
strange and irrational
that moment of reason is.
What many political theorists
today refuse to apprehend
is not only entanglement
of rational agency
with magical but most of all the fact
that the fusion of the two
does not always suggest
a celebration of the irrational
and irrational that is far from
the values of enlightened society.
I want us tonight,
to think about how might reorient
how we think politically.
The understanding of stigmatized
property, for example,
calls up what remains much more
profoundly mysterious and undetermined.
If fictions of law or
spectacles of sacrifice
demand that one is disposable--
I want to say it's somewhat
worse than that even.
It's that one no longer has the
capacity to be dispossessed.
So, perhaps our own alternative,
to what I'm calling a
positivist anti-colonialism,
depends on our retrieval of remnants
as a new context for the political.
I want to put a wrinkle in
progressive business as usual.
We all recognize now
that the cercarial system
extends beyond the logic of punishment.
It is a key instrument of social control
but it's also become the
cental public institution
in the Unite States.
And again the issue is not crime,
as you all know,
mechanisms of discrimination
do mark, in my opinion,
those concerted efforts
since Reconstruction
to create a class of citizens
subordinate to and separate from
those outside the prison walls.
But ever larger categories
of our population
can be tarred with the same brush.
Now, there is one particular
problem about the hypothetical.
As you recognize, a great deal of what
I've been talking about
requires a certain move
into the as if.
If you think of--
Many people have said,
"Oh, you're obsessed with zombies,"
you know,
"or your work on Haiti."
But this is not about that living dead.
This is something else.
This is as if
someone returned in the shape of a thing
that looked like a human
but deprived of everything
that makes social personhood possible
and that deprivation takes
place only at the moment
that their life, their resistance,
is most visible and most present.
That is the violence
of the legal language.
Forfeiture, as many of
you know, operates now
like something of a real infection
in the communities of
the poor and powerless.
But it remains part and
parcel of a long standing
projection of the acceptable
or unacceptable citizen.
Claims of humanitarian
enlightenment notwithstanding,
the police power that always
encompasses legislative intent
continues to resurface.
No criminal conviction
of the owner is required
for the state seizure of property.
And
the idea of social rationalism
claims of decency
are part and parcel of what continues
to prosecute the superfluous.
Tonight, what I've been trying to do
is not just put us in the in between,
in the difficult and
interstitial and hypothetical,
but rather to recuperate
from the tomb of neglect,
the terms of abuse,
to give a history to contemporary text
for the unfit or expendable.
That stands before me as a goal
in the university and in my life.
Phantasms of criminality, as we know,
drive our elected officials,
our police, and our state.
And I want us to consider
the unreal rationality of racism
that always depends for its
force and its ongoing life
on the force of the superfluous.
What one prisoner at Pelican Bay called,
"the castaway."
One thing that's also important
to recognize about the law
is that prisoners really know it.
They know how difficult
it is to get judges
to apply the 8th Amendment prohibition of,
"cruel and unusual punishment,"
for example, to psychic harm.
They also know how terms
like human dignity,
intrinsic worth or psychic violence
are no longer recognized
by the Supreme Court
at least not since the 80s.
What Elsa Goveia--
And if you haven't read this,
it is still unsurpassed.
It is her small book,
The West Indian Slave Laws
of the Eighteenth Century.
She recognized,
as the necessary legal
accompaniment to enslavement,
what she called the
superstructure, the police laws.
The unrestricted power to inflict harm.
That power alone could
keep slaves, as she wrote,
in their fixed status as legal
property of their owners.
Once you've got the superstructure,
the police power and all
of its manifestations--
What I knew as a child
as simply, the laws.
Then you're covered.
The lid shuts tight.
The question is,
what lies beneath that cap?
Again, I return to Melville.
In writing through his rage,
he let dirt seep through
the cracks of the literary
or as in the case of Israel Potter,
though the pages of history.
It is in his prose that the drama occurs.
Describing the ship that
will become what we know
as the Bon Homme Richard.
Melville prompts our double vision
through a description at once
bumbling and razor sharp.
"As for the ships, that commanded by Paul
"in person will be a good
example of the fleet.
"She was an old Indiaman,
clumsy and crank,
"smelling strongly of the savor
of tea, cloves, and arrack,
"the cargoes of former voyages.
"She was originally a
single-decked ship, that is,
"carried her armament on one gun-deck;
"but cutting ports
below, in her after part,
"Paul rammed out there
six old eighteen-pounders,
"whose rusty muzzles peered
just above the water-mark,
"like a parcel of dirty
mulattoes from a cellar-way."
It is in the simile,
a seeming pocket of something extraneous,
always unnoticed, that the
meaning for Melville lies.
It's here that Melville keeps
alive his secret history.
Intimating a region, of
let's say, discernibility,
between the ship of John Paul Jones
and the hold of a slaver
or more exactly, the barrels of guns
and the muzzles of faces.
Melville entangles any myth of heroism
with the ways of empire.
The products of trade,
clothes and arrack intermingle
with the after effects of trade in humans.
So using the frame of
conventional history,
Melville eats it out from within.
That is what peers up from
beneath the realities of trade,
the catalog of cargo.
Beneath such unseemly traffic,
there always lies, hidden,
waiting to be noticed,
peering out from below,
the physionomy of misalliance,
the fact of mixture.
So in closing, I want
us to begin to rethink
what we think of as natural.
And I also want to think
again about the future
of what we call political theory,
who makes it and who gets to claim it.
So instead of formally turning to
what we call political theory,
I want instead to invoke a
kind of uncertain reservoir
on which all creatures might draw
but from which most humans have learned
to cut themselves off completely.
I'm reminded here of
Hannah Arendt's attempt
to save political action
and political understandings of action
from humanitarianism.
And that is the argument that
has let to my very recent work
on the exterminating
ritual of humane society
who extinguish certain breeds
out of cover salvation.
But I want to think about
the management and control
of humans in a space that
always deeply, deeply, deeply,
not just political but
rather something we imbibe
as we breathe air.
And it is the fact of
how those who are banishment
are the management of what we think
of as the refuse of society.
How those hidden places
actually enter into us,
not in the form of
let's say, a possession,
but they transform piece by piece,
breathe by breathe, who we are.
And that is the question.
What is the language we need today?
Do words such as political
theory apply to places
inhabited by different sorts
of subjects or persons.
Key to what I've been describing here
is that I have always thought
that morality is different from ethics.
Moral judgment takes its cue
from a communal surround of privilege.
It depends, to my mind,
for its power on the people
who ordain right and wrong
or define what we mean
by a word like civility
as well as on public acquiescence.
For me, ethics takes on a
meaning far less abstract.
It has to do with locale,
the proximity of one creature to the next
or how an individual relates
to what is not familiar.
To be ethical in this
sense is to locate oneself
in relation to a world that
is adamantly not one's own.
Where as as morality is
an austere experience
of non-relation,
ethics demands the discomfort
of complete relatedness.
Forgotten the people
in the expendable world
in the corners of disregard.
The question then,
is how might we think of legal
history as not just a record
of suffering, but also
as a mode of deliverance?
How it might help to puzzle
out laws alternative reality
and once come to life without any safe
or customary theoretical framing.
Such knowledge demands nothing
less than the perturbation
of our confidence in what we think we know
and how we come to judge.
So, I hope that our
conversation then tonight
will be proof of this abiding
collective relationing
and I hope also unsettling terrain
because then only then can we reconstitute
what it means and why it matters
to live the scholarly life.
Thank you.
(applause)
Thanks.
