Law and the Settler State (Part One) — Susan Dianne Brophy

This post is an excerpt from an essay published in a 2013 issue of Law and Critique, titled “Freedom, Law, and the Colonial Project”.

The foundations of liberal-democratic state authority consist of at least two divergent forces. On the one hand are the paradoxical but nonetheless exalted principles of individual freedom and popular sovereignty. [1] On the other hand is an economic system that lauds freedom of choice but that necessitates relations of exploitation and alienation. [2] Enter state law. Based upon a Marxist-informed legal theory [3], I understand one of the law’s purposes to be the moderation of these divergent forces in a flexible way that buttresses state authority. What compels this moderating function is the presumed compatibility between the interests of the state and the interests of the subject–in other words, the ideological conflation between juridical order and individual freedom. This conflation presupposes that the rational legal subject will always exercise her freedom of choice in a self-maximizing manner, that is by choosing to obey those laws that protect and promote her individual freedom. Insofar as legal entitlements depend upon one’s capacity to self-maximize (according to this circular logic), the state determines membership based upon the individual’s perceived amenability towards capitalist enterprise, which engenders this self-affirming rationality.

This conflation of the interests of the state with those of the subject engenders a narrow principle of freedom that glosses over material inequalities in favour of an idealist, universalizing meta-narrative. This logic, I aver, thrived in the early years of the Canadian settler state, in which law moderated divergent forces in the service of distinct colonial objectives. In this colonial context, which I explore in the second part of this two-part post, the state attempted both to manufacture and to sustain the ideological conflation. In Canada, settler-state stability required the utmost flexibility from law. Such flexibility was evocative of the law’s fundamentally political character. Unless we distinguish between different instances of this flexibility, we fail to understand that it is the social responsiveness of law–animated by the dialectical relation between its exploitative and restitutionary aspects–that results in the historical variability of legal subjectivity. In the absence of such a critical approach, we risk bolstering the idealist logic of conflation and courting destructive outcomes.

In what follows, I attend to the question of how law mediates the tension between the ideals of liberal democracy and the realities of capitalism. I do so by fleshing out an anticolonialist (i.e. a Marxist- and Fanon-informed) perspective on the Kantian theory of legal validity. Kant and those working within the Kantian legal framework, such as Hans Kelsen and arguably Giorgio Agamben, view law and its attendant social relations in their most austere and therefore universalizable forms. Beginning with Kantian theory, and then taking up Marx, followed in turn by Frantz Fanon, I hope to move “from the most simple to the more complex, from the process in its purest form to its more concrete manifestations”. [4] This provides an apt lens for assessing the concrete manifestation of law in the settler-colonial context.

Kantian Legal Theory

As Kant contemplates the limits of transcendental objectivity in the Critique of Pure Reason, he grapples with epistemological puzzles that prioritize the role of individual autonomy as the basis of valid authority. For Kant, the goal of speculative reason is to achieve the highest degree of systematic unity among experience, concept, understanding, and idea. In order to do so, it is imperative to adopt, he believes, a transcendental standpoint–a “pure” position of autonomy that facilitates this unifying objective of reason. [5] Individual autonomy thus conceived becomes the standard by which to gauge the objective validity of reason; the shorthand version of this self-referential relation maintains that individual autonomy necessitates objective validity. As Kant elaborates in the Groundwork on the Metaphysics of Morals, a universal law is conceivable only to the extent that one can presuppose a position of autonomy that can produce free will. [6] The vital self-referential facet of this approach is that it renders the adherence to autonomous processes of reason the same thing as a claim to valid moral authority. Per Charles Taylor, “[t]his is the central, exhilarating notion of Kant’s ethics. Moral life is equivalent to freedom, in this radical sense of self-determination by the moral will. This is called ‘autonomy’.” [7] For Kant, the transcendental concept of freedom is bred from a commitment to idealist autonomy, which precludes everything but the most formal consideration of freedom. This preclusion occasions an immediate circularity between the relativism of subjective reason and the objective validity of the autonomous position: I can will objectively valid law because I am free; in turn, I am free because I submit to objectively valid law that I also will.

It is this idea of freedom that later Kantian legal theorists such as Kelsen focus on and extend. Kelsen contends that freedom exists within a social order only insofar as valid legal norms stipulate a system of rights and duties that functions to guarantee obedience. More succinctly, while absolute freedom is a construct wrought by law, individual freedom necessitates juridical order. Kelsen explains that “[a] genuine social order is incompatible with the highest degree of self-determination” because self-determination at its extreme results in anarchy. [8] What Kelsen argues for is an account of freedom that depends upon the coercive authority of valid legal norms and the system of rights and duties that circuitously reinforce this validity. In other words, his Kantian “pure theory of law” strives for the formal coherence between the state’s interest in juridical order and the individual’s interest in freedom. [9] In the service of this vision, Kelsen pursues three successive conflations that aim to rid both the state and the subject of any political character. First, because there can be no state without law, it is unnecessary to differentiate the two. [10] Second, because an individual requires law in order to exist in society, no differentiation is required on this plane either. And third, given that the juridical order and the “juristic person” [11] both have an existential relationship with law, there is no need to distinguish the interests of the person from the interests of the order. At last, state and subject are indistinguishable–thanks to the logic of conflation–and this is so in the service of the self-referential machinations of the “pure theory”. This formal coherence occurs through the harmonization of legal autonomy and individual autonomy: the state’s authority is valid because it promotes the idea of legal autonomy, which helps to ensure that its laws can be obeyed by autonomy-maximizing individuals; in turn, autonomy-maximizing individuals validate the state’s authority because of its adherence to the idea of legal autonomy, which produces laws that they obey.

For a more contemporary view, I read Giorgio Agamben’s “state of exception” as Kelsen’s “pure theory of law” taken to its conclusion. From this angle it is possible to observe how the Kantian compulsion toward autonomy as a principle of self-validation may serve as the basis for the sovereign’s totalizing power. For Agamben and Kelsen alike, the state’s authority to decide on life with impunity corresponds to its capacity to exercise the self-referential logic of conflation; for the former, this logic of conflation is expressed as the “indistinguishability” between law and life. [12] According to Agamben, state authority flows from the transhistorical pervasiveness of certain relations of “indistinguishability” that are endemic to Western juridical orders. These relations, in turn, constitute the “unlocalizability” or “indistinction” of sovereign power. [13] In the state of exception, the sovereign’s totalizing imperative derives from its “unlocalizability”, which feeds off the “indistinguishability” between life and law. To this end, Agamben writes that “[j]ust as for Kant the purely formal character of the moral law founds its claim of universal practical applicability in every circumstance, so in Kafka’s village the empty potentiality of law is so much in force as to become indistinguishable from life”. [14] He further defines this Kantian “simple form of law” as “a law reduced to the zero point of its significance, which is, nevertheless, in force as such”. [15] Just as the formal autonomy of law dissolves law’s force into an ether of potentiality, so too does it dissolve life, as Agamben strives to evoke with his conception of “bare life”, which is “the life of homo sacer (sacred man), who may be killed and yet not sacrificed“. [16] As a rarefied iteration of the logic of conflation, the resultant “indistinguishability” between life and law is the engine of the state of exception, in which law rules without significance over a life without significance.

To desire freedom within the confines of this scenario is thus “always already” an expression of one’s dependence on law’s formal autonomy to delineate this freedom, which reinforces the sovereign’s totalizing power. This “always already” relation underscores the transhistorical dimension of Agamben’s writing [17], which Peter Fitzpatrick rightly criticizes as “groundless” and without any “fixed content”. [18] While Agamben excels at tracing the Kantianism of Kelsen’s “pure theory of law” to its ends, the radical force of his claims otherwise founder. His idealist proclivities tend to mystify the relation between law and life, and leave him ill-equipped to identify the historical forces that produce and reproduce the relation of complicity, a point that I will revisit at the end of the second part of this post. In this second part, I will also propose a Marxist-inspired anticolonial approach–a shift from “indistinguishability” to alienation–as a means of recuperating a more critical take on law and its accompanying logic of conflation.

[1] Chantal Mouffe, The Democratic Paradox (London: Verso, 2000), 2; Carl Schmitt, The Crisis of Parliamentary Democracy (Cambridge: The MIT Press, 1988 [1923]), 15–17.

[2] David Harvey, The Limits to Capital (London: Verso, 2006), 47; Friedrich Engels, The Condition of the Working-Class in England in 1844, With Preface Written in 1892 (Cambridge: Cambridge University Press, 2010 [1845]), 76.

[3] I say “Marxist-informed” and not simply “Marxist” because a significant gulf exists in the field of Marxist-informed approaches to law that would be overlooked if I were to assume “a” Marxist conception of law.

[4] Evgeny B. Pashukanis, Law and Marxism: A General Theory, ed. Chris Arthur, 2nd edition (Piscataway, New Jersey: Transaction Publishers, 2007 [1924]), 66.

[5] Immanuel Kant, Critique of Pure Reason, 2nd edition (New York: Palgrave Macmillan, 2003 [1781]), 569 (A702/B730).

[6] Immanuel Kant, Groundwork of the Metaphysics of Morals (Cambridge: Cambridge University Press, 1998 [1785]), 63–64 (4:460–1).

[7] Charles Taylor, Hegel (Cambridge: Cambridge University Press, 1977), 32.

[8] Hans Kelsen, General Theory of Law and State (New York: Russell & Russell, 1961 [1945]), 286.

[9] Hans Kelsen, Pure Theory of Law, 2nd edition (Berkeley: University of California Press, 1967 [1960]), 319.

[10] Kelsen, General Theory, xvi.

[11] Ibid., 96–97.

[12] Most important for the purposes of this paper is the “indistinguishability” between life and law. See Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life (Stanford: Stanford University Press, 1998 [1995]), 53. However, because this theme of “indistinguishability” is so central to his conceptualization of sovereign power, it runs through many of his works. See Giorgio Agamben, “Kommerell, or On Gesture” [1991], in Daniel Heller-Roazen (ed.), Potentialities: Collected Essays in Philosophy (Stanford: Stanford University Press, 1999) 77, at 79, 83; Giorgio Agamben, “Pardes: The Writing of Potentiality” [1990], in Daniel Heller-Roazen (ed.), Potentialities: Collected Essays in Philosophy (Stanford: Stanford University Press, 1999) 205, at 208, 215; Giorgio Agamben, “Bartleby, or On Contingency” [1993], in Daniel Heller-Roazen (ed.), Potentialities: Collected Essays in Philosophy (Stanford: Stanford University Press, 1999) 243, at 228, 245; Giorgio Agamben, The Time that Remains: A Commentary on the Letter to the Romans (Stanford: Stanford University Press, 2005 [2000]), 90 and especially 106; Giorgio Agamben, Idea of Prose (Albany: State University of New York Press, 1995 [1985]), 5, 79; Giorgio Agamben, The End of the Poem: Studies in Poetics (Stanford: Stanford University Press, 1999 [1996]), 78; Giorgio Agamben, Remnants of Auschwitz: The Witness and the Archive (New York: Zone Books, 2002 [1999]), 58,  109.

[13] Giorgio Agamben, State of Exception (Chicago: University of Chicago Press, 2005); Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life (Stanford: Stanford University, 1998 [1995]).

[14] Agamben, Homo Sacer, 53.

[15] Ibid., 51.

[16] Ibid., 8.

[17] This “always already” relation is evident in Homo Sacer (ibid., 25, 109), but also apparent in other key texts: Giorgio Agamben, The Kingdom and the Glory: For a Theological Genealogy of Economy and Government (Stanford: Stanford University Press, 2011 [2007]), 99; Giorgio Agamben, What is an Apparatus? And Other Essays (Stanford: Stanford University Press, 2009), 34; Giorgio Agamben, Profanations (New York: Zone Books, 2007 [2005]), 79; Giorgio Agamben, The Open: Man and Animal (Stanford: Stanford University Press. 2004 [2002]), 80.

[18] Peter Fitzpatrick, “Homo Sacer and the Insistence of Law”, in Alan Norris (ed.), Politics, Metaphysics, and Death: Essays on Giorgio Agamben’s Homo Sacer (Durham: Duke University Press, 2005) 49, at 69.

Susan Dianne Brophy is Assistant Professor of Sociology and Legal Studies at St. Jerome’s University, University of Waterloo.