back to lecture 2, Alain Badiou at the New School, Tuesday October 28th: The possibility of change in the law.
Recapping his first lecture, Badiou recalled his three closing possibilities for lawful continuity looking to his previous 8 definitions for sites of continuity. These could be:
1) law as juridical, i.e. law in relation to the social order, as something like the expression of the social order. Or,
2) law as the formalization of natural rights, i.e. law in relationship to human nature wherein law cannot be defined on its own without first defining its relationship to human nature. Or,
3) law as a universal in relationship to a particular, as in Plato, i.e. as law that relates to a transcendent principle.
What is difficult, or important, is not defining the law, but defining what law is in relation to. This relationary status introduces a fundamental ambiguity into any definition of law.
Further probing these three possibilities for law, Badiou asked the following:
1) Is the law the formalization of something or an expression of something?
-if law is formalization, then it is on the side of science (think Kelson).
-if law is instead the expressive sublimation of something, then it is on the side of art, with aesthetic rules and an aesthetic notion of rights (like the rules/laws of classical tragedy, etc).
Perhaps, Badiou posed, law is something between both science and art. But even then:
2) What of the commitment vs commandment distinction, i.e. who is the subjet of the law? Is it a subject or is it on the side of objective existence? Is it something precise – i.e. to the letter? or is it something like an internal voice – i.e. spirit?
Badiou then stated that outside the law, (in the outlaw) there can be both spirit and letter, both objectivity and subjectivity… but in/of the law itself, is it something in relation to pure fact? is it normative? Can we, Badiou asked, find something like the continental vs analytic distinction in law as in philosophy? Sure given all of this, Badiou affirmed, we cannot have something like a simple definition and this is why not only law, but change in the law is so obscure.
Badiou then re-entered the topic of this lecture’s headlines: the possibility of change in law. First, he recounted, we usually don’t move to change laws we consider good. We move to change bad laws and this is the first thought in the process of change in the law. What then is a bad law?
Interestingly, for Badiou, a bad law is not really a law at all. Looking back to his 8 definitions of law (to which he admitted there may be more, there may be less…) Badiou argued that if law is the expression of a community, then a bad law is not a law as it does not properly express or represent the conditions of the community. Expressive law would fall under the 1st of his 8 definitions, i.e. law as the juridical form of the structural order. (see ‘eyes or ears..?’ for all 8 definitions). He then gave the example of gay marriage – for the conservative laws allowing gay marriage are not really laws as they do not express his natural order, but only bring chaos… Looking to definition 6, i.e. law as the relationship of different strengths (think Nietzsche), a bad law is a law that does not express those strengths properly and therefore, is not really a law by definition. Interestingly, Badiou notes, Nietzsche is in a mess on this point as well as his understanding of law as the expression of different strengths is ultimately a law of weakness, as law (the priestly law & class) is ultimately a law of revenge of weakness against strength. The problem obviously is that if law is the expression of strength then how can this weakness win? Finally, looking to law as the singular expression of something objective, (definition 7), there can be no bad law. Simply put, a need for change in law represents the change in particular relationships to universals in a given society, i.e. when a law needs to be changed it is because the world has changed ahead of it.
Badiou then goes on to ask: Yet what about bad laws in relation to a minority group? If the law is an expression of a universal part of human being, what happens in the case of say, minority groups as they are in france today? There is a claim on their behalf that ‘bad laws’ exist that discriminate against these groups, but in fact these ‘bad laws’ are not laws at all, as laws cannot be negative laws. Negative laws are laws which:
1) forbid something
2) deny a right to part of the people that is extended to others.
When a right is said to be for only a particular group of people, we can say, according to Badiou that this right is not, in fact, a right but a privilege. Formally, such negative laws mirror the laws instituted during WWII against the Jews and cannot be real law. But positive law, Badiou holds, is different, even positive law for a minority group. For example, affirmative action. Sometimes to create a concrete universality you must give something more to persecuted peoples for a period of time in order to bring them to a status of equality. All of this, positive and negative law, illustrates how laws can come to be abolished, or could come to be abolished. Though, as Badiou notes, governments rarely abolish laws as this abolishing would call their judgement and authority into question along with the law itself.
So from all of this, after all of this, Badiou cited two possibilities for forms of change of the law:
1) there can be a new law that is an improvement of an old law, a law that neither radically breaks with nor reinstates the exact terms of the old law. This form of law is called modification.
2) there can be a new law that is an explicit destruction of the old law. This form of law is the form of the event.
The difference between modifying law and evental law can be compared to artistic creation, wherein we think about modification as a variation of form and material, with new forms emerging from the same material. As a work of art is always already at the boundary of what is and what is not recognizable, on the secure side of modification one would develop a recognizable form from recognizable material. Yet on the evental side, one would be on the boundary of recognition, and if the artist accepts the risk, she is now in the terrain of developing completely new forms, and even further, she is developing the possibility of new forms of forms.
Moving back to the law, Badiou proposes that a political event could be something that is the possibility of law in the second artistic sense. It is law that opens the means for new laws and new possibilities of new laws. Badiou concedes that negation, displaying the boundary between old and new, must come before. The old world must be destroyed but the movement in all of this destruction must only be toward universality – the law must be for everybody, opening a new space for universality, introducing new possible fields of equalities. In this vein, the change of law cannot be about liberty or freedom, as one can have freedom without equality (property laws, for example) and liberty without equality, but not the reverse. Real change, for Badiou, is always a new space for equality, in new forms of law.
Moving toward summation, Badiou finally asked: Is there a limit in to the possible successions of new spaces for equality? And answered: We have in the idea of art the end of art itself. This idea is that form and life fuse into identicality and we find the idea of the ‘end of art’ at the limit where life is an artistic creation. In the evental creation of change in art forms, art itself is the restriction which must be destroyed in order for art to equal life. In politics, Badiou cites the same idea, present in Plato and Marx: the good law is the non-law, the good state is always the non-state. Law, as the mediator, as the separation between life and socialization can only be a good law when that separation no longer exists.
To conclude, Badiou recounted his main points as to the passage from bad law to good:
1) modification of the law is an infinite process of adjustment – it is the transformation of law without destruction.
2) the transformation of law as event comes with the question of the limit point, wherein the law disappears through itself.
Law then, for Badiou, persists for as long as we have not solved the problems of inequality. Yet the obvious problem here is exactly who sets the terms for equality, universality, etc. This is the easy hit at Badiou’s work and, while interesting, yes, I am after a different question today. Between Louis Althusser’s conception of subjection via the law and Badiou’s formulation of the evental law that is in fact outlaw, and creates subjects from the break, the cut, and it’s resulting truth procedures, there is a stark difference. In Althusser’s formulation, the “Hey You!” of the law creates the respondent, forms the subject, in their turn to answer the call. Yet for Badiou, subjects are formed in the wake of an event. Fidelity, subject formation, is rooted in an absence of law, an artistic creation of hitherto unknown forms and the possibilities of new types of forms – or, the creation of hitherto unknown subjects and the possibilities of new types of subjects. In the Paris Commune the disintegration of law into the commune’s daily life, via the disillusion of the state, created a new type of subject, and new processes for subjectivation not in relation to law at all. Or, are they directly in relation as outlaws? Are we back at the necessity of mediation, or forward in fact, outlined by Badiou in his 3rd Cardozo lecture? And if this mediation, this distance, this necessary law is in fact essential not for defining as such, but as spacing, are we not once again at the argument for Free Will? Suspending that for another moment, is it fair to say that Badiou’s subjects, in their relationship to law, are a radical break from subjection in Nietzsche, Lacan and Marx as read by Althusser? Certainly they are dramatically different from Foucauldian (and Butler’s) subjectivations.
I can’t help but think something else is at play. Something else is being built, protected, enabled that makes this subjection a subsidiary, an accomplice to something more important for Badiou. Whether that object of import is a throw back or a radical step toward the outlaw is still, for me, unclear.
– My thanks again to Professor Alain Badiou for his talk at The New School, as part of the Cardozo sessions, October 28th. And to Dr. Simon Critchley for the course couching and prepping us for this guest discourse.