RADICAL CRITICAL PRACTICE
Angela Mitropoulos: LEGAL, TENDER
This cult of continuity, the confident assumption of knowing to whom and to what we owe our existence – whence the importance of the idea of “origins” – Pierre Nora, “Between Memory and History: Les Lieux de Mémoire”
In late September 2009, the Serbian government stated it would not guarantee the safety of those attending Belgrade Pride. It had been scheduled to gather near the Faculty of Philosophy, under the banner of “It’s Time for Equality.” Pressured to cancel – to shift location and, finally, on the eve of the event, informed of their impending abandonment, once again, to an extralegal violence – organisers announced that Belgrade Pride 2009 had effectively been prohibited by the state. The violence of 2001 remains palpable – images abound of the quick slip between democracy and terror: of someone pleading with police, who decline appeals for help while nationalist thugs hunt all around; of someone being led through the streets by a police officer, her face covered with blood, in a manner I cannot imagine anyone being treated, unless they are considered guilty of something; of police standing around watching while a man is pushed to the ground and repeatedly kicked. Yet if this suggests a disappointed expectation of police protection, or anticipated most basic of civil rights alarmingly discovered to be non-existent, even the more canonical histories of Pride in the USA demonstrate something other than the undisputed, irrevocable and non-violent bestowal of rights – whether that history emphasises the 1969 riots at Stonewall against routine police attacks, or the quiet memorialisation by the Mattachine Society of those events, or the celebration of the riots by subsequent Christopher Street Liberation Days. Indeed, the persistence, among other things, of “no-go” areas for many transsexuals, lesbians, queers in cities around the world invalidates – without, of course, resorting to excuses of one sort or another – all attempts to explain what occurred in Belgrade as anachronistic or peripheral.
It is not difficult to discern the limitation of rights in their most ardent of advocates. The distinction between foreigner and citizen permeates the question of rights and their material distribution, just as it does in its more utopian moments. Jean-Jacques Rousseau cannot think of rights without making the accident of birth and residence into an implied gesture of assent – an assent presumed, thus preparing the way for the treatment of citizens as if they are foreigners when they dispute sovereignty’s reign. Those who do not accede to sovereignty while remaining within its purview become, for Rousseau, “foreigners among citizens” (Mitropoulos, 2006). This is the pre-emptive border of the social contract. And, all problems of democracy will be solved by relocating the border. Moreover, the very thought of rights and democracy at their most absolute will give occasion to insist on their limitation – or, their end, as Sarah Kofman remarked of Benedict de Spinoza, “whose death left his Political Treatise unfinished precisely at the moment he was about to deprive women of all political rights” (2007, p. 74). The final chapter of the Treatise, as is well-known, asserts the exclusion of foreigners, slaves, women and children from the political sphere. This is no mere question of a series of identities who, for reasons extraneous to democracy’s ideals, have been excluded from the rights of citizenship – and who might therefore look forward to democracy’s more perfect unfolding in their recognition or, as Michael Hardt puts it, in “recognizing again what democracy is and what it could be” (2007, p. 41). Nor is it a matter of the interruption of capitalist development by pre- or non-capitalist prejudices. On the contrary, this confluence of foreigners, slaves, women and children is a question of genealogy, of the authentication of power through origin-stories and their transmission, as fact and naturalised foundation, into the future. In its most basic sense, then, this is the problem of the legal form of value, of its imposition and perseverance.
What passes for legal tender is a convention for the reckoning of debts – and a legitimated violence steps in where convention falters. Without “the guarantee of power,” as Mark Osteen puts it, “counterfeit and genuine currency are identical.” Following Georg Simmel and Jean-Joseph Goux, Osteen goes on to note that “the money economy depends upon a form of faith or credit in the authenticity and power of the existing political order, a supranational standard that resembles both the ‘aura’ surrounding original art and religious faith” (1992, p. 828). Osteen is concerned with the formal concurrence of literary and economic values, as is Will Fisher in his treatment of the etymological proximity of “queer sex” to “queer money,” their shared connotations of counterfeit and forgery. Fisher, for his part, notes that “unnatural sexualities and unnatural economies were coded through each other” (1999, p. 15), though mostly alludes to the productivism that, in political economy, has long served to define what is natural and, therefore, to specify the line between fake and real. More formally, in his commodity exchange theory of the law, Evgeny Pashukanis put this problematic in terms of the continual re-foundation, through violence, of the legal form of value. “Legal obligation,” he wrote, can find no independent validity and wavers interminably between two extremes: subjection to external coercion, and ‘free’ moral duty” (2007, p. 165). In its schematics, this echoes Walter Benjamin’s argument in his “Critique of Violence,” elaborated since in various ways by Giorgio Agamben, Achille Mbembe and others. There, the dilemma is that of a periodic swing, in Benjamin’s words, between law-making and law-preserving violence. Put together, these understandings point to the eminent questions of political economy, not least those of exchange conceived as the form of relation, of productivity as its premise and promise, of the subjective homologies of marital, wage, social and fiduciary contracts that find their most elaborated form in the itemising of the Fordist family wage (Mitropoulos, 2009). In discussions of the most recent financial meltdown, these questions appear as the crisis of value’s foundation, most remarkably in the calls for greater regulation and denunciations of unproductive excess (Cooper and Mitropoulos, 2009a).
That said, if a formal analysis of the dynamic that characterises the move to legal violence threatens to slide from a description of the indistinction between the rule of law and the state of exception toward political indifference (notable in Agamben’s claim that we are all, potentially, homo sacer), Michael Hardt and Antonio Negri’s insistence on the “productive dimension” they consider as fundamental to their politics tends to cast – to borrow Brett Neilson’s phrase (2004, p. 77) – “constituent power as an undisputed origin.” It is this positing of a seemingly unchallenged origin (of value) – or, better: the attempt at its definition and reinscription (and in the midst, I would argue, of its deepest disputation and uncertainty) – which begins to explain the differentia specifica of the turn toward a legitimated (if not strictly legal) violence, or explains what is at stake in this turn. Not quite the tragic dispersal of control or loss, nor the triumphal advance of the multitude’s productive capacities, the innovations in forms of control that translate identification into right – and, thereby, both the possibility of its revocation or the reckoning of its lack, as Wendy Brown argued (1993) – pivot on the transformation of contingency into necessity. In one respect, this is the problem of the generation of quantitative values from qualitative ones. But the labour theory of right, and the labour theory of value that stalks it as its ironic critique, which understand this problem only through the conflation of contingency and labour, tend to resolve complex and irreducible flows into the figural claims of original creation. To pose this as a problem of the transformation of labour into labour-power presupposes that it is possible to know what labour is before and beyond the encounter with the machinery of its quantification. This may well bolster the shaken confidence of knowing – as a matter of the distribution of the wage, in the very definition of legitimate labour in its distinction from slavery, or in the explanation of quantitative difference by way of some essential qualities of man – to whom and to what we owe our existence. But it also projects the present into an idealised future. In other words, the labour theory of value, as a production theory of value, becomes the seemingly conclusive and indisputable origin of justice and of right.
And so, without faith that this mythical origin contains an inevitable and idealised destiny, rights are contingent, and will remain so. In “Queer Loving,” Siobhan B. Somerville argues that the predominance in the United States of a liberal discourse of inclusion depended upon an optimistic rendition of the progressive advance of civil rights, “a reading that moves gradually from discrimination against minority groups toward the fulfilment of an idealized democracy” (2005, p. 335). To this insight I would add that there would be no way to think of race, or a people, or a nation without the ordered inscriptions of genealogy, just as it is not possible to think of the persistence of any of these over time without invoking a normative economy of sex, gender and sexuality. Played out along boundaries of East and West, through the affiliations of anti-imperialism and human rights, and at the line that separates the privacy of the household from the gaze of the street, much of what occurred in Belgrade – as the city it has come to be in relation to cities elsewhere – turns around the tense knots that bind the familial to the national, and, therefore, that connect sex and desire to race and (re-)production. Something of this was noted in the statement from the Open Assembly of Solidarity, as they called for protests against the prohibition of Belgrade Pride outside the Serbian Embassy in Athens. Cutting across but also through the nervous lines of familiarity, their statement reads:
The ideology of ethnicity, of racial purity and supremacy, arms the violence against anyone who does not conform to nationalist dogma. Those who do not align themselves with the vision of nationalism are attacked because their life-practices refuse to reproduce the values responsible for the structuring of an ethnic identity. (Emphasis added, 2009).
Alys Eve Weinbaum calls this the race/reproduction bind. She argues that the “interconnected ideologies of racism, nationalism, and imperialism rest on the notion that race can be reproduced” (2004, p. 4). Some time ago, Étienne Balibar also emphasised the “central importance of the criterion of genealogy,” characterising it as “a symbolic category articulated to relative juridical notions and, first and foremost, to the legitimacy of filiation” (1991, p. 56). And so, just as it is not possible to dismiss what occurred in Belgrade with gestures of indifference – to allow filiation to relegate criticism to behind the closed doors of the familial home of anti-imperialism, and confine public statement to declarations that this kind of thing happens everywhere – nor is it possible to suppose that it might have been averted with a better recognition of rights. As with the debate over the effective banning of Out of Place: Interrogating Silences in Queerness/Raciality (2008), mostly depicted as a choice (that is, a false choice) between the theses of homonationalist Islamophobia and developmental backwardness, such arguments finds their impasse in restatements of filiation. Of course, this is the condition of passing and belonging, as a good citizen might. The prevalence of pink versions of national flags from Pride marches in London to Mardis Gras in Sydney, along with the prominence given to the involvement of military and police at such events, makes nationalism more than a pre-condition of the demand for rights – it literally defines them. Given the eminence of this, alongside the political importance given to calls for the legalisation of gay marriage, adoption, or access to reproductive technologies, whatever rights these seem to accomplish, they also amount to overwhelming displays of re-productive allegiance.
Rituals of obedience are no more emphatic than where that loyalty is at its most suspect, where desire and the future must contend with the most vagrant and fugitive of prospects, and the legal form of value with the problem of its reinscription or imposition. In other words, origin and lineage are nowhere more disputed and uneasy than in the frontier – which is to say, nowhere a more unmistakeable terrain of conflict than in the very moment of the establishment of the contractual conventions that put a distance between capitalism and feudalism (such as those which distinguish a labour freely given from that appropriated by coercion, and therefore nowhere more emphatic a proposition than in the qualitative distinctions of race that marked the purportedly heritable properties of either condition). What Warren Montag has called “that admittedly bizarre impasse at which the Tractatus Politicus halts so abruptly” (1999, p. 85) turns out to be the problem of assuring genealogical order. Spinoza’s dilemma is not simply that women are “weak,” but that men “generally love women merely from lust,” and are very “ill-disposed” “to suffer the women they love to show any sort of favour to others, and other facts of this kind” (1951, p. 387). This, in short, is the danger of wayward, unproductive desire. These are the assumptions that separate and join spheres of intimacy, politics, labour, sex, communication; that gender the attributions of activity and passivity in the drafting of contractual subjectivity. It is the move that disavows desire in politics (or, as in Fordism: the factory), and in so doing politicises desire by insisting upon the mastering of one’s body and the productivity of its potential issue. This tension between the private and the common – in other words, between the jealous privatisation of women as the object of desire and women as the common property of men – that Spinoza ponders forms the template of contract theories, whether those of the marital, wage or social contract, and brings to the fore all the gendered senses in which the categories of active and passive (citizenship and sexuality) are constructed and remade.
In any case, it is little wonder that both Balibar and Montag, in reading Spinoza to this point, begin to think about the trans-Atlantic slave trade. There is, very simply, no way to think of sexual economies without speaking, also, of the organisation of race, though the connection is less metonymic or homologous than that they are both crucial to the inscriptions of genealogy, the legitimate transmission of property through name. More curious is Hardt’s argument that the Left should not “abandon the claim to identifying its legacy” in the Jeffersonian tradition. Not quite a dismissal of Jefferson’s critics, Hardt nevertheless sets aside their specificity – “his ownership of slaves, his unacknowledged sexual relationship with one of those slaves, his drive for westward expansion that extended plantation slavery and usurped Native American lands” (2007, p. 43) – as if they are not all about the authentication of inheritance, legacy. Undoubtedly, Jefferson can seem progressive. He defended “inter-racial” sex. But it is not simply that, for Jefferson as for others, the distinction between the master’s legal and bastard children (and its authorisation of property) remained intact. More significantly, for Jefferson racial “mixing” amounted to modernisation – that is: the cultivation of properly American gender roles among natives and slaves (see Steele, 2008). Put another way: the household (reproductive) architecture of a Jeffersonian domestic economy requires common law’s experimental inclination and its scalable contracts. In the frontier, sovereignty and canonical law give way to fraternal democracy and common law.
The frontier furnished the household as the elaboration of an architectural and intimate dynamic through which limits were escaped and restored. Situated across the hyphen between politics and economics, as the means by which law makes markets, in the frontier, the household attained a plasticity and portability that confound European understandings of empire and flight. But it is the heteronormative household that determined, through precedent and approximation in common law’s unfolding, the extent to which property, contract and credit were recognized, considered as heritable and therefore guaranteed across time. It is this conjuncture – perhaps since William Blackstone articulated empire’s horizon as that of an increasingly “incorporeal hereditament” – through which, as he put it (Morrison, 2001, p.12), “grand ends” are sought by “steadily pursuing that wise and orderly maxim, of assigning to every thing capable of ownership a legal and determinate owner” at the moment of its greatest ontological uncertainty.
Here, Somerville’s reading of U.S. legal history is pertinent (2005). Her striking point, discussed in the connections between heteronormalisation and the legitimation of “inter-racial” marriage, is that progressive narratives charge identity with authenticity and install comparison. And so, while there have been attempts to move beyond the discrete arrangement of identities (as in intersectionality studies), “our knowledge still tends to be organised through analogies naturalised in the context of identity politics, including the notion that sexual identity is in most ways, or at least in the most salient ways, like race.” Following the arguments made by Janet Halley on the incomparability of non-normative sexualities and race, Somerville illustrates how the legitimation of “interracial marriage was accomplished in relation to its thorough heterosexualization.” Race cannot function as simile for gays, women, or those with disabilities. Movements around sexual orientation, Halley argued, harbour “an unforgivingly corrosive critique of identity itself.” To this argument it might be added that the specificity of queer sex is that it, as with the Marxian notion of class, is far less an identity than a placeholder of that which is regarded as without value, inauthentic and – in its specifically capitalist sense – deemed unproductive or excessively so. What connects race to sex, however, is also what can pull them apart. Somerville writes that where “monogamous marriage was assumed to produce an unadulterated line of descent, adultery was imagined as the potential pollution of bodies, thus scrambling the inheritance of property relationships and status” (2005, p. 354).
The household was never peripheral to American imperialism. It was, on the contrary, the space through which the legal form of value was defined and imposed. After all, it is at the frontier that the boundaries of property law and its tenure unfold, that legitimate labour (the very distinction between wage labour and slavery) and authorised reproduction (as with the master’s legally recognized and bastard children) are decided. The egalitarianism of a diasporic sovereignty situated the household as the intimate sphere of a sentimental and self-managed equivalence. It is this household that would become the efflorescent machinery of that sentiment’s limits and their multiplication. With its attendant claims of inheritance, labour and right, the Jeffersonian domestic economy envisioned perfect symmetries of contractual reciprocity. And so, in the violent positing of the frontier as a space of exploration, cultivation and the extraction of wealth – in the scarcities that are obliged as precondition and condition of a market in labour, in the criminalisation and recapture of fugitive and wayward (re)production and, not least, in the ambivalent play of the value form’s genera as simultaneously universality, hypostatization and arbitrage – there would be a periodic recourse to the naturalising magic of genealogy to settle matters of orderly progression and authenticity. It might be noted, here, that Somerville’s analyses around the heterosexual condition of “inter-racial” sex turns around the pivotal legal case of Loving v. Virginia (1967). There, the Lockean social contract, with all the elasticity afforded by common law as it moves out across the frontier, is given form in the re-ordering of the marital contract: as Chief Justice Warren wrote in that ruling: “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”
Insofar as common law’s methodology is one of case law and precedent (in other words, memory and test case), it is a genealogical method. Origins (in the register of ownership and authorship) are inscribed and legitimated in the unpredictable environment of – to borrow Justice Wendell Holmes’ quite simple word – life (in Diggins, 1994, p. 342). It is not, then, that labour-power is another word for bare life, but that common law attempts to judge what is just through recourse to genealogy. The remainder, the surplus of the labour theory of value, is that which is not recognised as labour, as being productive. This stubborn remainder is the result of having to define what labour is, to take its measure. The labour theory of right is, in its way, a way of recording the genealogies of exploitation and recompense – quite literally, tracing the lines of justice and indebtedness, of adjudicating on the not-so-confident assumption of knowing to whom and to what we owe our existence. As Stephen M. Best remarks in analysing the complex of slavery and property law, debt “translates ownership into obedience with all the effectiveness of legal rhetoric,” – and so, the fugitive is one “who has reneged on a promise to provide his labour” (2004, p. 82). Not only is the labour of the slave without measure, it is situated outside time in the supposedly mutual and sentimental bonds of master and slave, but nevertheless figured as a boundless obligation to labour. Slavery, rather than wage labour, is the riddle (and telos) at the heart of the labour theory of value – or, better put: it marks the extraction of a surplus without punctual limit, through the gendered, racialised distribution of the wage and its accompanying architectures of household and nation.
For Karl Marx, as he tracks down political economy’s genealogical fictions (and therefore, the legal ordering of right), the labour theory of value appears as the ironic undoing of capitalist legitimation. But, in the “Critique of the Gotha Programme,” he recoils from the idea of “useful labour” as the condition of right, just as he insists that the ownership of (a feminised) “nature” by men is one of the principal conditions that gives meaning to words such as use value, labour, and so on. But if here the references to race and sex are implicit, elsewhere he dismisses “fancied genealogy” as that which is required by “the incipience of monogamy” (quoted in Engels’ Origins of the Family, Private Property, and the State). Far from restating the labour theory of right as moral critique, Marx suggests that the “bourgeois have very good grounds for falsely ascribing supernatural creative power to labor.”
Angela Mitropoulos, Queen Mary, University of London.
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Ady Kuntsman and Esperanza Miyake, Out of Place: Interrogating Silences in Queerness/Raciality, Raw Nerve Books, York, UK 2008.
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