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« States, Cyborgs, Actants | Main | Reply to Waters: On Social Bonds »

Law, Ontology, Heterogeneity

**NOTE: These comments were originally posted yesterday before I was totally happy with their content because I though Antoine’s comment merited immediate reply. I’ve reposted them this morning in a format I am more – though not completely – happy with. Apologies if anyone wasted time with the first draft.

Antoine, by all means push me further…I am enjoying this discussion. I’m afraid, however, that I think we disagree on several issues here – partly on matters of interpretation and partly on matters ontological.

Firstly, I don’t agree with either your characterisation of law or your reading of my comments in response to Nate. With respect to the latter I explicitly noted that

I am quite pragmatic about law and do not regard it as some sort of codification of ontologically true statements. It is a tool for contesting violence.

I think this makes it clear that I am not envisaging encoding a singular version of being in law that then serves to marginalise other forms of being.

Moreover, I don’t agree with your characterisation of law as

inescapably rest[ing] upon an established and settled understanding of rights-holders that entails a curtailment of heterogeneity

On the contrary, as I noted in my reply to Nate, I see international law as

both the result of negotiation and subject to revision…a contingent codification of political norms

To my mind, all law (but especially international law) is in an evolutionary state. Even where it is based on a constitution, the interpretation of that constitution repeatedly reinflects the law (as the constant concern regarding the possible overturning of Roe v Wade demonstrates). Law, as Derrideans argue, is thus a series of reiterations not a continual iteration of the same. In this sense the being protected by the law is constituted by each (re)iteration of the law, not vice versa. But I would be interested in the comments of any legal scholars in this regard.

In this light law, like rights, is a mechanism through which those harmed/marginalised demand recognition of that harm/marginalisation. It is thus a forum in which attempts to marginalise alterity can be contested. It is thus far from being an engine of homogenisation – rather it is an engine of agonism and difference. Think about the way in which at present various claims are launched that demand difference be heard: whether it is the rights of prisoners; the rights of the unborn (as you mention); or the rights of minorities. Of course some laws can be used to defend privilege (libel in the UK) or protect property, but even these laws can be used to advance claims for the recognition of alterity (e.g., think of the libel claimant who uses the court to demand that a newspaper story about them is not seen as an uncontested truth).

Now, to turn to matters philosophical…firstly, I would note that I think you have misunderstood my comments regarding humanity. I was not arguing for ‘broadening or modifying’ the concept (i.e., keeping its original sense but also adding others). Rather I was arguing that the sense in which this term is usually used (by anthropocentric accounts) misunderstands what it is to be human. I do not want to extend that imperfect understanding. I want to rewrite it. The resultant concept may argue for the inclusion of materiality in what it is to ‘be human’ but it will be a very specific understanding nonetheless.

Secondly, and more importantly, you ontological question deserves a response. In Chapter 4 of my book (pages 87-89), I tackle precisely the issue you are referring to. Here I note that

Heterogeneity is…the existential condition at the core of [Jean-Luc] Nancy’s philosophical schema [and thus my own]. Named in this way, however, heterogeneity takes on the contradictory appearance of a singular existential condition.

I respond to this apparent contradiction by noting the following (forgive the lengthy quote):

The heterogeneity that Nancy refers to in his co-existential analytic is derived from a notion of being unfolding from shared divisions. A shared division comprises the boundary that both being and otherness have in common […] Difference is thus not that which is encountered, but rather that to which we are always already exposed by sharing a common boundary. It is because being unfolds from, and thus cannot disavow, these shared divisions that it is characterised as always already being-with. An irreducible and pervasive alterity (or difference) thus not only haunts existence but is constitutive of being-with according to Nancy.

This alterity gives rise to singularities and, hence a heterogeneous existence. Each instance of being-with that emerges from this multiplicity is singular. That is to say each and every instance of being-with comprises a distinctive unfolding from the particular division its shares with its other. The reticulated multiplicity that Nancy speaks of is thus not the division of an existential field into equal and similar units, but rather the emergence of a series of unique networks of identity and difference from multiple, intersecting shared divisions. In total, this field of singularities is multiple, or heterogeneous. Heterogeneity is thus the fundamental characteristic of this being-with. And since this heterogeneity is a collection of singularities, it is itself, heterogeneous. It is not a plurality of identical units, but a multiplicity of singular beings-with.

Put crudely a single structural principle (being is being-with and, hence identity unfolds in relation to, or from the division from, difference) gives rise to an infinite heterogeneity. To treat this as a contradiction would be to misunderstand its dynamic. Moreover it means that a common structural/ontological principle gives rise to a being singular plural in which there is no predetermination to hinder heterogeneity.

I think, however, that you are asking a different question. Not, ‘can an ontology exist that generates heterogeneity?’ Instead, I think you are asking a more practical question: ‘in a light of ontological heterogeneity, how can we have a politics that shows some fidelity to this insight?’. Or: 'in a plural field won’t all acts/decisions have to necessarily endorse one way of being and thus in some way contradict the ontological insight outlined above?' The answer to this latter question is, of course, a qualified ‘yes'. It is necessary, however, to note that this does not void the ontology: itmere notes the difficulty (if not impossibility) of acting and deciding on the basis of such an ontology.

With respect to my own response to this question of acting and deciding in light of a heterogeneous ontology, I note in the book that Connolly’s formulation of agonistic democracy provides a perfect reply to such a question: "Agonistic democracy…affirms the indispensability of identity to life, disturbs the dogmatization of identity, and folds care for…diversity…into the strife and interdependence of identity\difference."

So I would ask in response to your probing: in what sense does the identification of urbicide fail to affirm such a care for diversity?

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Reader Comments (1)

I was a bit uncertain where to post this. It also responds to your comment here.

I take well your view that law is "an avenue through which political gesture may be turned into concrete acts" (Coward's comment here). I also think you're right to point out the way in which law can be used as a platform for alterity to contest its marginalization. I do think you've painted a bit of a rosy picture and, in particular, the coercive force behind the law seems to be entirely absent from your rendering of the process. But it's a valid point.

I guess what I find frustrating, however, is that such an immediate recourse to law feels like an avowal of the rich process of subjective formation. Are we really so limited? If I take your point about the being-with of being, then vast fields of political engagement open up. Put another way: is the Convention on genocide really a key ingredient in the prevention of genocide today? I certainly knew genocide was a bad thing long before I knew there was a law against it. The whole realm of ethical negotiation is much broader than the law.

So why is the law our first port-of-call?

Antoine's point about the misuse of law is more than just a cautionary tale: it's evidence of the social embodiment of law. I would suggest that the abuse is not merely a powerful-weak phenomenon, but has to do with the social meaning that attaches to the law. In this sense, I'm not asking you to jettison law, but suggesting that perhaps legal proscription ought to be the end result of a longer process of social transformation.

This process of social transformation is where the scholar is really forced to dirty his/her hands. In the transition to law, a beautiful theoretical construct may be muddied. But in the public realm, the scholar's name is at stake. (Having had rather direct conversations with you in the past, I know you won't take this as a personal barb [which it isn't], but merely as a provocation.)

Mar 15, 2009 at 12:27 | Unregistered CommenterNate Wright

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