Focus II: Right, Wrong and Self-Constitution
The employment of legal language as ethical
practice is the question. What is meant by ethical
practice? Actions of an individual substantiate
ethical practice and this constitutes the self of the individual. Ethics understood
as self-constitution comes down to us
from Aristotle. Ethics is neither a set of norms, nor a domain of knowledge, but
individuals actively constituting their own self, ethos. Practices formative to ethos
are neither universal nor private matters. Each institutional social
setting (e.g., army barrack, police station, refugee camp, prison, and so on) has its
organizational power structure, but also its own ethics. Each
social micro-universe (say, each family or workplace) may present its unique ethics.
In any of these contexts, ethics is not the
rules of those institutions insofar as they remain mere external confines of individual
lives. The practice of an ethic penetrates the individual, works from the
inside. Unlike
the inborn first-nature, which is given and irremovable, the ethical
second nature needs to be upheld and substantiand in one’s deeds and undertakings.
Inserted to the legal context, ethical
practice will immediately get entangled with practices of power. Viewed from
the side of the society, the law is a system for the exercise of power:
authorisations coming with constrictions and rules imposed on subjects. However,
legal practice may also be viewed from the side of the subjects. It may appear
as domination backed up by rules, but also as struggles of subjects against domination. An
individual may be dragged to the law by force. But then an individual may also enter the law of one’s own accord – by asserting one’s rights, invoking the legal
system, and speaking juridical language in general.
The law may provide effective defences, elements
that an individual in turn may use against domination. Insofar as employment of these elements generates resistance
to external power, what is the ensuing self-constitution of that practice?
Logos
and Phone
Aristotle’s Politics at Book One, Chapter Two
(1253a10–17) allows an entry point to the said problem. This is the well-known
piece where human life is taken apart from the merely animal life. According to Aristotle, ‘man alone of the
animals possesses speech (λόγος logos)’,
other animals possess mere voice (φωνὴ, phone).
‘The mere voice,’ says Aristotle, ‘can indicate pain and pleasure, […] but
speech is designed to indicate the advantageous and the harmful, and therefore
also the right and the wrong’. The language of right and wrong is crucial, ‘for
it is the special property of man in distinction from the other animals that he
alone has perception of good and bad and right and wrong and the other moral
qualities’.
Aristotle views human being as someone
who apprehends moral qualities. In the background
is Aristotle’s view that humanity is generated in the practices
of ethics and politics. Yet, for Aristotle, ethics and politics are more or
less the same practice – practice of virtues. Difference between ethics and politics
is a matter of effects. The ethical
effect is the constitution of the self and the political effect is the
constitution of the polis. Important
anyway is that ethics and politics come hand in hand: human life may be ethical
only if it is political, and it can be political only if it is ethical. To get
down to what exists at the heart of this complex, Aristotle turns to the employment
of logos.
Logos
(λόγος) is the speech and language employed in
the course of practical life. If through language we are made into humans, then
how does it make this happen to us? The mere voice, a sound (φωνὴ, phone), may be produced as a sign (σημεῖον,
sêmeion) of pain and pleasure, but
this is not enough for a language. Language, at least
the moral language, is self-contained. Words do not stand
for things that are external to language. Instead of that, speech exists for
the purposes of bringing clear to the mind and manifesting (δηλος, dêlos) such distinctions that belong
inherently to the language (λόγος). Through these distinctions we
become human beings: we are humans when an entire system of language runs through
our selves.
Aristotle says that language exists for the
purpose of making distinctions between moral qualities, such as right and wrong.
Competency for language is something that the human being alone bears. Language is there to provide its bearer the means and power to sustain a
perception (αἴσθησις, aisthêsis) of
right and wrong. Now, while it may be true that a human individual alone makes
distinctions between right and wrong, this is not the point. The point is that
only through making that distinction an individual becomes human. Every time someone
makes that distinction, the language starts to operate in him. The person in
question performs a distinction between the human self (that one becomes in and
by that performance) and the mere animal (subject of inarticulate
pain and pleasure that one of course still remains).
In summary, the argument of the analysis
in Politics may be resumed in the
following formula:
– Language is human constitution.
– Language exists for the purpose of
distinguishing between right and wrong.
– Therefore, distinction between right and
wrong is the human constitution.
At this point the original question needs
to be resumed. May the employment of legal language work out as ethical
practice? Thinking about really existing candidates for an Aristotelian
language of right and wrong, the first coming across is juridical language,
the language of the law. Does not the law exist exactly for the
purpose of distinguishing between right and wrong? If it does, should not the
Aristotelian argument be applicable for it, all the way to the conclusion? Employment of the law is ethical practice and this is where the self comes about. The conclusion is that human constitution is in fact all legal. This
may sound coherent reasoning, but a little bit offhand improvisation at the
same time. Without knowledge of the contexts and ways in which juridical language
is employed such logical exercise does not amount to much. Can anything
of more substance be achieved?
Subjection
Employment of juridical language is not
usual conversation about moral issues between gentlemen. Communicative search
of solutions plausible to all is not legal practice, not even ideally.
Disagreements do not resolve in the way that that one of the parties finally
understands that he was wrong. Legal practice is not a game where everyone will
try to find out together what is right. True, the game goes on by way
of putting forward all the reasons, speech and language (λόγος) to support one’s
cause and an element of convincing and persuading exists without doubt. However, when
the talking is over, everyone will realise that legal language comes with a threat
from the very start. Legal language: words
that come with a threat. The source of the threat is the overpowering
enforcement machinery of the repressive state.
The repressive machinery stands behind the
legal language of right and wrong. The juridical system holds certain
expectations of that machinery: the machinery should not need to persuade, discipline or
rehabilitate nonconformists; having promulgated its judgement, the law expects
the machinery to subjugate them entirely regardless of their opinion. At that stage the law is as
blind as a bat to reason, even if before that stage legal argumentation had appeared
as petitioning reason. The strategy of invocation of the legal system is ultimately not chosen
because it appeals to rationally compelling truth. Invocation of the legal
system appeals to force.
Despite the underlying presence of overpowering force, juridical
language as a language of right and wrong is nevertheless available also to those who wish
to practice resistance. All the same, the law is a dangerous
game of power; it is ultimately about appropriating the irrational force element with
which the law is invested. In principle, the force is available to all, and glorious
battles may be won with it. However, invocation and appropriation of irrational forces comes with a cost. Someone who asserts rights will have to become a
legal subject.
The problem now seems to be this: what is
it that an individual must become, make of itself, when entering the field of
law? What idea of the law one will internalise? This is the problem of subjection,
subject-making that goes along with the exercise of power. According to Judith
Butler, subjection is ‘the process of becoming subordinated by power as well as
the process of becoming a subject’. Power and psyche go together
in subjection: it is a process where ‘power that at first appears as external,
pressed upon the subject, pressing the subject into subordination, assumes a
psychic form that constitutes the subject’s self-identity’.[i] Subjection is not simply power that works upon the individual
as externally imposed unfreedom (subjugation, domination, oppression). It works
through a self that is its own product.
This problem of subjection is not at all about roles
acted out by individuals, dramatic masks to be taken off and replaced by others.
More permanently effective form of the law exists that makes subjects
out of individuals. Whereas the use of this form takes place in social
relations, the target domain of effects is one’s self-relation. This domain consists
primarily of the ways in which one gets by dealing with one’s self. In this sense of a self-relation, the subject is about how an ‘I’ relates with ‘myself’. What has the law to do with that?
Positive Law
To become a legal subject does not mean internalising subject-structuring structures given
externally to the subject. The psychic form assumed by the law in individuals is
not the same as the form that the law assumes in social structure. What is it in one’s
relation to the law that may have self-constituting effects? There
are two rather opposite options available. The first option is that the subject
looks for authority in the law. Whether found or not found eventually, it is this search for authority that defines a legal subject. The second option is the law as
something positive, conceived as external
from the start. This is to deny and renounce all moral authority of the law.
On the basis of the historical fact of
positivisation of the law, Slavoj Žižek, for one, has taken an interesting stance.
The moral constitution of a modern subject
is gained through ‘acceptance of the customs and rules of social life in their
nonsensical, given character, through acceptance of the fact that “Law is law”,
we are internally freed from its constraints’.[ii]
Stripped of all moral qualities the law is obeyed only because it is the law. The effect is moral liberation that goes for the internal sphere of the
psyche.
Liberation works out the ground for ethical
practice: a negative relation to the law precedes an ethical self-relation. What
needs to be internalised first is the idea that the law is external. This is perhaps crucial
to the psychic form that the law assumes and to the way it it makes subjects, but we certainly cannot stop there.
[i] Judith Butler, The Psychic
Life of Power. Theories in Subjection. Stanford University Press, Stanford,
California, 1997, p. 2–3.
[ii] Slavoj Žižek, The Sublime
Object of Ideology. London and New York: Verso 1990, 80.
