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Overview
Taking natural disaster as the political and legal norm is uncommon. Taking a person who has become unstable and irrational during a disaster as the starting point for legal analysis is equally uncommon. Nonetheless, in Law in Crisis Ruth Miller makes the unsettling case that the law demands an ecstatic subject and that natural disaster is the endpoint to law. Developing an idiosyncratic but compelling new theory of legal and political existence, Miller challenges existing arguments that, whether valedictory or critical, have posited the rational, bounded self as the normative subject of law.
By bringing a distinctive, accessible reading of contemporary political philosophy to bear on source material in several European and Middle Eastern languages, Miller constructs a cogent analysis of natural disaster and its role in modern subject formation. In the process, she opens up exciting new lines of inquiry in the fields of law, politics, and gender studies. Law in Crisis represents a promising new development in the interdisciplinary study of law.
Product Details
| ISBN-13: | 9780804772426 |
|---|---|
| Publisher: | Stanford Law Books |
| Publication date: | 08/18/2009 |
| Series: | The Cultural Lives of Law |
| Sold by: | Barnes & Noble |
| Format: | eBook |
| Pages: | 248 |
| File size: | 884 KB |
About the Author
Read an Excerpt
Law in Crisis
The Ecstatic Subject of Natural DisasterBy RUTH A. MILLER
STANFORD UNIVERSITY PRESS
Copyright © 2009 Board of Trustees of the Leland Stanford Junior UniversityAll right reserved.
ISBN: 978-0-8047-6256-4
Chapter One
Introduction
This book is in part a plea to revive ecstasy as a point of departure in the study of law. Ecstatic subjects-shattered, dispossessed, displaced, and beside themselves-have never disappeared completely from legal or political analysis. Since the 1970s and 1980s, the subject in ecstasy has been invoked in a number of books and articles, especially in the fields of religion, metaphysics, and literature. The idea, however, that ecstasy is, or should be, central to legal structures or legal study is one that has not found proponents for a number of centuries. I make the case in this book that legal ecstasy is still very much with us, that it remains an effective framework for politics, and that ecstatic subjects-or their off-center, eccentric counterparts-have been key players in the articulation of modern and contemporary political norms. I do so by focusing on what has increasingly been called "disaster law"-defined broadly here as the legal and political structures that appear in the aftermath of crises such as earthquakes, floods, or fires. What I suggest throughout this book is that the dual purposes of disaster law are, first, to make the disaster intelligible by, second,assigning a politically normative function to the subject in ecstasy.
I admit that the subject in ecstasy is a strange place to start a book that is not being written thirty years ago, when discussions of subjectivity were more widespread. What I propose over the following chapters, however, is that at that moment thirty years ago, there was a potential connection, a possible linkage, among ecstasy, eccentricity, and the law that could have been made but that was not-an association that was momentarily formulated, but that then unraveled. My starting point in this book, therefore, is that this brief, potential, or possible linkage needs to be rearticulated-especially now that crisis and disaster have become common tropes in contemporary political and legal rhetoric. Over the following pages, I argue that during a disaster or crisis, the law assumes not bounded, distinct, definable subjects, but rather eccentric subjects or subjects beside themselves-subjects in ecstasy. Furthermore, this assumption of legal ecstasy or eccentricity produces not just bodies beside themselves, but also displaced spaces and shattered narratives-the reality associated with what can be represented giving way to a reality associated with what cannot.
That law might deal in ecstatic rather than in bounded subjects-in what cannot be represented rather than in what can-may at first appear paradoxical. One of the most common assumptions in legal studies today is that legal systems, regardless of their ideological bases, both demand and define discrete, unitary, and above all bounded subjects. The rights-bearing individual, for example, is assumed to enter the liberal social contract only after taking on the rational, unitary subjectivity that is citizenship. The state becomes sovereign and thus a state-capable of engaging in international law systems-only when it is recognized to possess distinct boundaries enclosing a definable space. Even the racialized body that is regulated by shifting, decree-driven totalitarian law is a body capable of being represented and made (sometimes hyperbolically) distinct. Although a number of scholars have criticized this emphasis on the bounded subject-trying, for example, to preserve the notion of rights while doing away with the categorization and dependency demanded by the social contract, or highlighting the racism that underlies the valorization of the inviolate national boundary-few have questioned the more fundamental assumption that law demands a unitary subject. I focus on the law of disaster in this book in order to challenge this assumption.
At the same time, I emphasize that my focus on disaster has less to do with its aberrant nature and more to do with its normative, routine functions. I argue, in other words, that the law of disaster is not in fact different from the law that operates in the apparent absence of disaster-that the subjects of what is termed the jurisprudence of the "day-to-day" are as much subjects in ecstasy as their counterparts in the midst of an earthquake or flood. As so many scholars have noted in other contexts, that is, I argue in this book that the crisis has become the norm. My final point, therefore, is perhaps a counterintuitive one, especially in a book purporting to address disaster law: rather than aiming at some (legal) resolution to crisis or disaster situations, rather than attempting to solve the problem that is the crisis or disaster, I suggest that we should instead develop a legal vocabulary that recognizes disaster as the endpoint of law.
The rest of this introductory chapter is devoted to building a framework for addressing these points. First, I outline the major themes that appear throughout the book, and second, I introduce some of the theoretical work with which I engage. In the three sections that follow, for example, I address a number of broad trends in the literature on ecstasy, subjectivity, and truth. I describe ecstatic subjects of law as they appear in late twentieth-century work, and explain how my own interpretation of ecstatic subjectivity both draws on these descriptions and departs from them.
The sections "Ecstasy," "Ecstasy and Subjectivity," and "Ecstasy, Subjectivity, and Truth" explore the law of disaster-addressing recent theories of political exceptionalism, comparing these theories to emergency measures taken during crisis situations, and describing the ways in which these disasters and crises are made meaningful. My purpose in these sections is to situate my analysis of the crisis or the disaster-and more specifically the subject of the crisis or the disaster-within these broader theories of the state of exception. Again, in the section "States of Exception," I suggest that although the subjects of disaster law are very much related to the subjects of the political exception, they are also distinct in significant ways.
The sections "Natural Disasters and Metaphysical Disasters" and "Disaster Law and Feminist Theory" set the groundwork for the chapters that follow by bringing together my working definitions of the subject in ecstasy and my working definitions of the subject of disaster law. The literature on subjectivity and the literature on disaster have both relied heavily on a rhetoric of crisis. In the first of these sections, I suggest that these natural disasters and metaphysical disasters are in many ways the same thing. Then in the second section, I define "disaster law" for the purposes of my argument, I describe how its constituent parts interact to produce the ecstatic subject, and I discuss broadly the importance of feminist theory to these relationships.
Ecstasy
It is difficult to dissociate ecstasy from subjectivity. As the next section shows, each has been repeatedly defined in relation to the other, and each lends itself easily to a relational definition. Before I get to this relational definition, however, I want to sketch a few characteristics of the former detached from, divorced from, or even prior to the latter. Literally, therefore, ecstasy-ek-stasis-means a "being put out of place" or a "standing outside of." It is a term that describes a process-and a process alone. Who or what the subject or object of this process might be-what is put out of place, or what stands outside of what-is a question that is for the most part left unanswered. It is in fact only in the secondary definition of the term in Greek, a "being disoriented," that the existence of a subject is implied at all.
Despite this relatively open literal definition of "ecstasy," the usual definition that we see in contemporary political philosophy-a "being beside oneself" or a "being outside of oneself"-seems to rest on the notion that the self or the subject should be a part of the conversation. The state of ecstasy in its initial articulation, that is, does not require a self. Contemporary discussions of the state of ecstasy do. What I would like to do in this section and the next, therefore, is begin with this initial articulation of ecstasy as a process, and then move on to ecstasy as an aspect of subjectivity-to the quite reasonable tendency to understand ecstasy primarily, or even only, in relation to the self.
What, then, does it mean to "be put out of place" or to "stand outside of?" First of all, each implies a process of decontextualization. Being put out of place means being deprived of a context, of reference points, of a meaningful framework. Being put out of place means being offstage; it means, more broadly, being incapable of representation. Being put out of place-like being eccentric (off center)-is thus to be constantly shifting, disintegrating, and reintegrating elsewhere. This is not a state of transcendence, not a process of othering or being othered. There is no movement from one defined or finite state to another. Rather, this is a state of constant and simultaneous isolation, disintegration, and reintegration.
What I suggest in this book is that the law of disaster seeks to produce precisely this state of ecstasy. Instead of understanding law-or law's violence-as something that defines, represents, rationalizes, and forces into a meaningful frame, that is, I understand law as something that insists upon a process of decontextualization, a gradual move toward the indefinite. If there is a coercive character to disaster law, therefore, I suggest that it manifests itself by shifting what can be represented into the realm of what cannot-not by forcing complex subjects to conform to simple, rational, or recognizable legal and political norms.
This does not mean, however, that subjects and subjectivity are irrelevant to legal ecstasy. "Being put out of place" and "standing outside of" each imply, at least, some object, subject, space, or narrative that is undergoing this process of decontextualization-each almost demands a thing that might be fractured, shattered, or placed beside itself. And to the extent that this thing is the body or mind, the subject does gradually begin to enter the picture. If ecstasy means standing outside of the body, standing outside of the mind, or standing outside of the self, in other words, it is in many ways an aspect of subjectivity.
Although I take as my starting point ecstasy as a process, my fundamental working definition of the term is "a decontextualizing," or "a rendering incapable of representation." In many instances, it is the subject who becomes decontextualized or unrepresentable. In some instances, however, it is not. Nonetheless, what I want to do now is turn to the work that has addressed ecstasy primarily in relation to subjectivity-to the work that has described the various ways in which ecstasy has indeed become a means of describing or even defining the subject.
Ecstasy and Subjectivity
Much of the late twentieth-century work on subjectivity took as its starting point the so-called Cartesian subject-seeking variously to challenge, critique, defend, or re-create the bounded, rational self that was invented, it was contended, by René Descartes. As Matthew L. Jones has argued, the story of Descartes' invention of the modern subject became "a comforting fable" in many scholarly fields-a narrative in which "knowledge and truth" were assumed to "rest upon the individual subject and that subject's knowledge of his or her own capacities." Jones's purpose in this analysis of Descartes is to emphasize the complexity of what has often been described as almost a caricature of the rational, modern, self-to rescue Descartes, at least in part, from the critiques of modernity in which he has been entangled. By focusing on the mathematical exercises that "Descartes highlighted as propaedeutic to a better life and better knowledge," for example, Jones states that Descartes' philosophy valorized "the will to recognize and to accept freely the insights of reason ... not just following the passions or memorized patterns of actions. It meant essentially recognizing the limits of reason and willing not to make judgments about things beyond reason's scope."
My purpose in this section is not to argue in favor of, or against, the complexity of Cartesian subjectivity, or the validity of holding up the "Cartesian subject" as an actual product of Descartes' philosophy and mathematics. Nor do I attempt in this section an extensive review of the late twentieth-century literature that addresses subjectivity in general. Given the hundreds of books and articles on the modern subject, its crisis, its death, and its revival that were published throughout the 1970s, 1980s, and 1990s-and that continue to appear, although with less frequency, today-such a comprehensive review would in any case be excessive. Rather, what I try to do in this section is paint in broad strokes some of the major themes that helped to shape this intellectual moment-and explain why I am seeking to return to it now. In particular, I emphasize the persistence of what has been called Cartesian reason, related or not to the philosophy of Descartes, as a trope in discussions of subjectivity-even, or especially, in those discussions that announce the death or crisis of the rational subject. I address, that is, the enduring assumption that truth and knowledge must be situated in bounded, self-conscious, rationality-even when this rationality is critiqued, challenged, or set aside.
At the same time, I should note that my point in this section is not that the critical writing on subjectivity is inconsistent or contradictory in its simultaneous dismissal of, and insistence on, Descartes' rationality. It is true that even while grappling with the Cartesian subject, even while announcing the death, disintegration, irrelevance, or revival of this subject, much of the work on subjectivity seems to have treated this apparently dead, dispersed, or irrelevant subject as the norm. It is likewise true that although the modern, rational subject has been described as a subject in crisis for many decades or even centuries, it remains an often overwhelming presence in academic work today. I think that this is so, however, less because of the often paradoxical nature of scholarly writing, and more because there has been a misreading of the nature and development of modern law and politics. As I argue in the following chapters, the key figures in the development of political and legal structures over the past three centuries have not been the bounded, rational, self-conscious subjects of precrisis Cartesian rationality, but rather precisely the postcrisis subjects-the subjects in ecstasy, beside themselves, unrepresentable, and at the margins-described by these critical works.
With that in mind, I am not going to start this discussion of ecstasy and subjectivity in the 1980s, but rather in the first couple of centuries CE, with the treatise of the literary critic, Longinus, On the Sublime. Longinus's purpose in this treatise is to analyze different types of rhetoric and to evaluate their efficacy in moving a public audience. Indeed, although he addresses a variety of styles of speech-poetic as well as political-he makes a point of asking early on (and repeatedly afterward) "whether we shall have theorized on something useful for men in political life." Throughout the text, Longinus remains interested above all in politically useful speech-and in the type of speech that forms a politically useful subject. Moreover, according to Longinus, at the heart of this question of political speech rests the relationship between the rational subject who can be persuaded by logical discussion and the subject in ecstasy who is irrelevant to such discussion. "What is beyond nature," Longinus argues,
drives the audience not to persuasion, but to ecstasy. What is wonderful, with its stirring power, prevails everywhere over that which aims merely at persuasion and at gracefulness. The ability to be persuaded lies in us, but what is wonderful has a capability and force which, unable to be fought, takes a position high over every member of the audience.
A number of pages later, he continues that the "final end of poetry is the astounding of those who hear it," and that both political speech and poetical speech "are seeking the sublime and the state of sympathetic excitement." Finally, in a concluding section, he repeats, "you see-as I never stop saying-the works and emotions which come near to ecstasy are a release and a cure-all for every audaciousness in spoken and written style."
(Continues...)
Excerpted from Law in Crisis by RUTH A. MILLER Copyright © 2009 by Board of Trustees of the Leland Stanford Junior University. Excerpted by permission.
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Table of Contents
Contents
1. Introduction....................12. Writing About Disaster: Metaphors in Crisis....................33
3. The Gift of Life: Blood, Organs, and Viruses....................52
4. Respect in Death: Ghouls and Corpses....................85
5. Seismic Space: Camps, Cemeteries, Squares, and Monuments....................120
6. Conclusion....................174
Notes....................185
Bibliography....................221
Index....................233