Law and Agonistic Politics (The Edinburgh Centre for Law and Society)

La w and agonistic po

litics

The Edinburgh Centre for Law and Society Series Editor: Professor Emilios A . C hristodoulidis Titles in the Series Public Law and Politics The Scope and Limits of Constitutionalism Edited by Emilios Christodoulidis and Stephen Tierney Transformations of Policing Edited by Alistair Henry and David J. Smith The Universal and the Particular in Legal Reasoning Edited by Zenon Bankowski and James MacLean Law and the Politics of Reconciliation Edited by Scott Veitch

Law and A gonistic Politics

Edited by andr ew schaap University of Exeter, UK

© A ndrew S chaap 2009 A ll rights reserved. N o part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without the prior permission of the publisher. A ndrew S chaap has asserted his right under the C opyright, D esigns and Patents A ct, 1988, to be identi.ed as the editor of this work. Published by A shgate Publishing Limited A shgate Publishing C ompany W ey C ourt East S uite 420 Union R oad 101 C herry S treet Farnham Burlington S urrey, G U9 7PT VT 05401-4405 England USA www.ashgate.com British Library Cataloguing in Publication Data Law and agonistic politics. - (T he Edinburgh C entre for Law and S ociety series) 1. Law - Political aspects 2. Law - Philosophy I. S chaap, A ndrew, 1972- II . University of Edinburgh. C entre for Law and S ociety 340.1'1 Library of Congress Cataloging-in-Publication Data Law and agonistic politics / by A ndrew S chaap. p. cm. -- (T he Edinburgh C entre for Law and S ociety series) Includes bibliographical references and index. IS BN 978-0-7546-7314-9 1. Law--Political aspects. 2. Law--Philosophy. 3. A gnosticism. I. S chaap, A ndrew, 1972 K487.P65.L39 2008 340'.11--dc22 

ISBN 978 0 7546 7314 9 (hardback) eISBN 978 0 7546 9120 4 (ebook)

2008033501

C ontents List of Contributors Preface Introduction Andrew Schaap

vii xi 1

1 T he D emocratic N arcissus: T he A gonism of the A ncients C ompared to that of the (Post)Moderns Andreas Kalyvas

15

2 D emocratic A gon: S triving for D istinction or S truggle against D omination and Injustice? Jean-Philippe Deranty and Emmanuel Renault

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3 T he O pening: A legality and Political A gonism Hans Lindahl

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4 T he Expressive A gon: O n Political A gency in a C onstitutional D emocratic Polity David Owen

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5

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Staging Dissensus: Frederick Douglass and ‘We, the People’ Jason Frank

6 Polemos and A gon Alex Thomson

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7

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Questioning the Law? O n H eteronomy in Public A utonomy Bert van Roermund

8 A gonism, A ntagonism and the N ecessity of C are Keith Breen

133

9

147

T he S tranger in S ynagonistic Politics Nathalie Karagiannis and Peter Wagner

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Law and Agonistic Politics

10 Passionate Subjectivity, Contestation and Acknowledgement: R ereading A ustin and C avell Aletta J. Norval

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11 O n the R ationality of D isagreement and Feeling: Brethren, Bombers and the C onstruction of the C ommon Fiona Jenkins

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12 T he C omplex A gon Adrian Little

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13 T he A bsurd Proposition of A boriginal S overeignty Andrew Schaap

209

Index

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List of C ontributors Keith Breen is Lecturer in Political Theory, Queen’s University Belfast. His interests lie in contemporary democratic theory and, specifically, in applications of Hannah Arendt’s work to the problems of democratic rule. A key focus of his recent research has been the fraught relationship between violence and power. H e has published in a number of journals (Philosophy & Social Criticism, Contemporary Political Theory, The European Legacy and Res Publica) on communitarian politics, the thought of Alasdair MacIntyre, critical theory and the philosophy of work. Jean-Philippe Deranty is S enior Lecturer in Philosophy at Macquarie University (S ydney). H e has published a number of articles and edited collections in French and G erman philosophy, particularly in critical theory. H is latest publications include Recognition, Work, Politics: New Directions in French Critical Theory, D eranty et al. (eds) (Brill 2007); and Beyond Communication: A Critical Study of Axel Honneth’s Social Philosophy (Brill 2009). Jason Frank is the G ary S . D avis A ssistant Professor in the H istory of Political T hought at C ornell University. H is current research interests are in democratic theory, political aesthetics and the history of A merican political thought. H e is the author of Constituent Moments: Enacting the People in Post-Revolutionary America (Duke University Press, forthcoming) and Publius and Political Imagination (R owman & Littlefield, forthcoming). His work has appeared in such journals as Political Theory, Public Culture, and The Review of Politics, and he has recently co-edited (with T racy McN ulty) a special issue of Diacritics titled ‘Taking Exception to the Exception’. Fiona Jenkins is S enior Lecturer in Philosophy at the A ustralian N ational University, teaching and researching in European philosophy, feminist theory, political philosophy and on film as philosophy. She has published many essays in journals, including differences, Australian Journal of Human Rights, Practical Philosophy, Angelaki, Constellations, and borderlands. H er current research is organized around the theme of ‘the ungrievable’, and looks particularly at the work of Judith Butler. Andreas Kalyvas teaches political theory in the D epartment of Politics at T he N ew S chool for S ocial R esearch. H e is the author of Democracy and the Politics of the Extraordinary: Weber, Schmitt, Arendt (C ambridge University Press 2008) and the co-author of Liberal Beginnings: Making a Democracy for the Moderns

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Law and Agonistic Politics

(Cambridge University Press 2008). He is currently working on two book projects: one on the intersecting trajectories of dictatorship and tyranny in W estern political theory and another on the constituent power and radical democratic politics. Nathalie Karagiannis is Provinicia A utonoma di T rento R esearch Fellow at the University of Trento. Her current research focuses on the re-specification of the concept of solidarity in the current global context and on the fragility of democracy. H er recent publications include: European Solidarity (ed., Liverpool University Press 2007); Varieties of World-making: Beyond Globalization (edited with Peter W agner, Liverpool University Press 2007), Avoiding Responsibility: The Politics and Discourse of European Development Policy (Pluto Press 2004). Hans Lindahl is Professor of Legal Philosophy at the University of T ilburg. H is research in legal and political philosophy focuses on issues pertaining to political representation, sovereignty and (collective) identity, in particular in the context of the EU legal order. A sub-theme within this general line of research is the structuring of politico-legal space and time from the first-person plural perspective of a ‘we’. He has recently published articles in Continental Philosophy Review, Res Publica, Philosophy and Social Criticism and in Loughlin and Walker (eds), The Paradox of Constitutionalism (O xford University Press 2007). H e is the editor of A Right to Inclusion and Exclusion? (H art 2009). Adrian Little is A ssociate Professor and R eader in Political T heory at the University of Melbourne and currently the H ead of the S chool of S ocial and Political S ciences. H is recent publications include Democratic Piety: Complexity, Con.ict and Violence (Edinburgh University Press 2008), The Politics of Radical Democracy (edited with Moya Lloyd, Edinburgh University Press 2007) and Democracy and Northern Ireland: Beyond the Liberal Paradigm? (Palgrave 2004). His current work focuses on the application of post-structuralism and complexity theory to N orthern Irish politics. Aletta J. Norval is a R eader in the D epartment of G overnment, where she is also D irector of the D octoral Programme in Ideology and D iscourse A nalysis. S he is author of Deconstructing Apartheid Discourse (Verso 1996) and coeditor of South Africa in Transition (Macmillan 1998) and Discourse Theory and Political Analysis (Manchester 2000). Her most recent book, Aversive Democracy (C ambridge University Press 2007), investigates the relation between deliberative and post-structuralist approaches to democracy and makes the case for a distinctive Wittgensteinian turn in thinking about democratic subjectivity and the role of rhetoric and imagination in the development of alternative political imaginaries. David Owen is Professor of S ocial and Political Philosophy at the University of Southampton. He has published nine books, the most recent of which are Nietzsche’s Genealogy of Morality (A cumen 2008) and the co-edited volumes

List of Contributors

ix

Multiculturalism and Political Theory (C ambridge University Press 2007) and Recognition and Power (C ambridge University Press 2007). H e is currently working on books on Nietzsche and democratic theory, and the political theory of migration. Emmanuel Renault teaches philosophy at Ecole N ormale S upérieure Lettres et S ciences humaines (Lyon). H is publications deal with H egel, Marx and contemporary critical theory. His most recent book is Social Suffering: Sociologie, Psychologie et Politique (La D écouverte, Paris, 2008). Andrew Schaap is Lecturer in Politics at the University of Exeter. H e is author of Political Reconciliation (R outledge 2005) and has recently published articles on reconciliation and agonistic politics in Philosophy and Social Criticism, Political Studies Review, Australian Journal of Political Science and Constellations. He is currently working on a book on The Rights of Political Animals, which surveys the way Arendt’s aporetic conception of human rights is taken up in contemporary political theory by Benhabib, Lyotard, Agamben, Lefort and R ancière. Alex Thomson is Lecturer in English Literature at the University of Edinburgh. H e is the author of Deconstruction and Democracy: Derrida’s Politics of Friendship (C ontinuum, 2005) and Adorno: A Guide for the Perplexed (C ontinuum 2006). A longside critical theory, his research interests include S cottish enlightenment thought and European romanticism. He is currently working on a critical study of the relationships between literature, historiography and changing conceptions of state and nation in Britain since the eighteenth century. Bert van Roermund is Professor of Political Philosophy at T ilburg University. H e has published extensively on various fundamental legal concepts and contemporary legal problems (constitutional review, democracy, European integration). H is monograph Law, Narrative and Reality (Kluwer 1997; also in S panish) concluded a period of research on law and language. S ince 1997, he has focused on problems of authority and representation (sovereignty, identity, normativity, reconciliation) in supra-national contexts like the European Union and the World Trade O rganization. W ith S acha Prechal (Utrecht) he recently edited Coherence in EU Law (O xford University Press 2008). Peter Wagner is Professor of S ociology at the University of T rento. H is current research focuses on the further elaboration of the analysis of modernity outside of Europe or ‘the West’ and on a sociological re-appreciation of the concept of freedom. H is recent publications include: Modernity as Experience and Interpretation: A New Sociology of Modernity (Polity 2008); The Languages of Civil Society (ed., Berghahn 2006); The Economy as a Polity: The Political Constitution of Contemporary Capitalism (co-ed., UC L Press 2005).

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Preface This book is the outcome of four workshops held in Edinburgh, Melbourne, Florence and Exeter in 2006 and 2007. Particular thanks are due to Emilios C hristodoulidis who collaborated with me on this project, N athalie Karagiannis and Peter Wagner who convened the workshop in Florence, Anne Orford for hosting the Melbourne workshop under the auspices of the Institute for International Law and the Humanities in the Melbourne Law School and Tim Dunne and Jonathan Barry who supported the workshop in Exeter in my first month of employment here. I am grateful to the British A cademy and the A ssociation of C ommonwealth Universities for funding this project with a grant for international collaboration, which I held with Emilios Christodoulidis. I am also grateful for financial assistance from the Edinburgh Law S chool, the Faculty of A rts and the S chool of Law at the University of Melbourne and the S chool of H umanities and S ocial S cience at the University of Exeter. N athalie Karagiannis and Peter W agner received funding from the University of S ussex and T he European University Institute R esearch Council for the workshop in Florence. Many thanks to all those workshop participants who did not contribute a chapter to this volume but whose spirited interventions left an indelible impression on the chapters eventually collected here: Volker Balli, Zenon Bankowski, Dario Castiglione, Samuel Chambers, Emilios Christodoulidis, Janet Coleman, Steve Curry, Costas Douzinas, Robin Durie, Robyn Eckersley, Dimitris Efthimiou, Pablo Ghetti, Iain Hampsher-Monk, Bonnie Honig, Michael Janover, Fleur Johns, Rob Lamb, Vassilis Lambropoulos, W ill Large, Bice Maiguashca, T om Moore, S tewart Motha, C hantal Mouffe, Paul Muldoon, Ed Mussawir, S amantha N ovello, A nne Orford, Paul Patton, Janice Richardson, Kristina Stoeckl, Paulina Tambakaki, Camil Ungureanu, Nadia Urbinati, Johan van der Walt, Nick Vaughan-Williams, Scott Veitch, Daniela Vicherat, Jonathan White and Jon Wittrock. Finally, thanks to the authors for their enthusiasm for the project and commitment to this publication.

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Introduction A ndrew S chaap

T he concept of the agōn, meaning struggle, comes to A nglo-A merican political theory from the Ancient Greeks via nineteenth-century Germany. Influenced by Friedrich Nietzsche and Jacob Burkhardt, Hannah Arendt and Michel Foucault both refer to agonism to conceptualize the conditions and possibilities of political freedom. In turn, contemporary political theorists such as W illiam Connolly, Bonnie Honig, Chantal Mouffe, David Owen and James Tully turn to agonism for an alternative normative vocabulary to that of deliberation and communicative rationality, which has tended to dominate recent debates about democratic legitimacy. Beyond emphasizing the unavoidability of conflict and its importance for sustaining democratic politics, agonistic conceptions of politics are distinguished by their emphasis on the strategic, affective and aesthetic aspects of politics, together with the normative significance of these for democratic praxis. Agonistic thinkers share a well-rehearsed critique of theories of deliberative democracy, which are charged with depoliticizing social conflict by representing it in terms of an anticipated or counter-factual consensus. W hereas deliberative democracy establishes the legitimacy of democratic procedures by appeal to the meta-political ideal of consensus, agonistic approaches typically insist that the democratic contest can and should go all the way down to include the principles and procedures that are supposed to regulate political life. R ather than focus on the agonistic critique of deliberative democracy, however, this book explores the differences between various conceptualizations of agonism, engaging critically with the assumptions that underpin them. In particular, three strands of agonism (by no means mutually exclusive) emerge from the chapters herein: pragmatic, expressivist and strategic. Pragmatic arguments about the normative significance of agonism, as made by Chantal Mouffe, are essentially twofold. The agon motivates people to participate in politics by making available a clear choice between Left and R ight in terms of which a decision can be made. A s such, agonism is essential for a vibrant democracy. Furthermore, agonism serves to defuse potential antagonisms by providing a legitimate outlet for political grievances, guarding against the return of the political in the guise of political extremism. Expressivist theories of agonism, exemplified by William Connolly, emphasize the value of struggle in sustaining freedom and plurality and resisting social identities that may be experienced as oppressive. T he agon is celebrated as a never-ending play of differences, which resists the homogenizing drive for social unity, enabling plurality to flourish. A strategic agonism, as advocated by Jacques



Law and Agonistic Politics

R ancière, understands struggle as oriented to overcoming social exclusion. T he agon thus does not occur between co-citizens but between first- and second-class citizens, between those who are included and those excluded, and it seeks to abolish the social inequalities between them. Engaging variously with these three conceptions of agonism, throughout this book we enquire into the relation between law and politics. What role does law play in mediating, enabling, constraining or curtailing the agon? A nd how might agonism provide a basis for understanding the conditions of possibility for contesting the legitimacy of a legal order? At stake in these questions is a theoretical issue in terms of which the differences between the various conceptions of agonism emerge most clearly: how should we thematize the relation between agonism and the political? If a legal order derives its legitimacy from the political unity that it presupposes (e.g. ‘the people’ in a democracy), should we understand the agon as already internal to this political unity or should it be defined precisely as that which threatens it? Or is it possible to think the agon as both external and internal to the political unity and, if so, in what sense? N ot surprisingly, these questions engage long-standing concerns of radical political theory. Just as the concept of the political provides a basis for re-conceptualizing the commonness of political community without presupposing a progressive philosophy of history, agonism provides a basis for re-conceiving class struggle and democratic freedom in the light of post-structuralist insights about the emergence of political subjectivity. In the opening chapter, A ndreas Kalyvas describes the archaic origins of agonism in athletic competitions in A ncient G reece. Individuals were motivated to participate in these contests by a narcissistic drive to win personal glory. A gonism was an aristocratic practice. One had first to be freed from the mundane struggle to preserve life that was the common lot in order to partake in the higher struggle for excellence that was the preserve of the few. In classical G reece, however, this aristocratic pursuit of glory met with the democratic principle of equality. A gonism came to include public contests of words and competition was opened up to allow participation from all citizens. W ith the democratization of the agon, the motivational force and creative potential of narcissistic self-love was harnessed for the benefit of the polis, with individuals struggling to win personal glory by contributing to the common good. H owever, equalization of social status also meant that the competition itself became more fluid and volatile. The agonal spirit that ensured the vitality of A thenian democracy also contributed to its instability. Aware of the potential of the agonal spirit to lead to civil unrest, the Greeks devised a complex institutional and legal system of self-limitation to protect the city against the excesses of the agon, which included, among other things, ostracism and tyrannicide. T he attractiveness of the classical concept of agonism for contemporary theorists of radical democracy is evident in the way in which it differs from orthodox Marxism in its thematization of political conflict. As Kalyvas points out, whereas agonism thrives on the contingent emergence and outcome of conflict, in Marxism plural identities are subordinated to a binary opposition of competing

Introduction



universalities, the struggle is in the service of the realization of higher unity in which antagonisms will be superseded, politics is a surface effect of subterranean social forces and the role of affects and embodiment are ignored. In contrast to the Marxist theory of class struggle, ancient and modern agonisms recognize the inevitability and irreducibility of political conflict, its importance for sustaining democracy and the significance of the performative aspect of struggle for the selfunderstanding of the political community and the constitution of subjectivity. In comparing the agonism of the ancients to that of the post-moderns, however, Kalyvas argues that postmodernists such as C onnolly and H onig de-H ellenize the agon. In particular, with postmodernism the subject of the agon shifts from individual to group identities, heroic striving gives way to playfulness and the struggle for a decisive victory is displaced by a perpetual contestation of power relations. Moreover, there is an unwarranted optimism in the expressivist agonism exemplified by William Connolly. This optimism is evident in the thematization of political struggle as a play of difference in which there are no losers, the assumption that conflict will sustain plurality and cultivate respect rather than polarize and entrench group identities and the lack of institutional protections against the disintegrative tendencies of agonism. In contrast to this expressivist postmodern conception of agonism, however, Kalyvas discerns an affinity with the ancients in Chantal Mouffe’s pragmatic agonism. In her insistence that the achievement of democracy is to transform a relation of antagonism into one of agonism, Mouffe steers a course between de-politicization (in the form of a hegemonic consensus) and over-politicization (in the form of the violent eruption of antagonism). W hile Kalyvas approvingly counts A rendt, together with N ietzsche, as the last of the ‘ancient’ agonists, Jean-Philippe Deranty and Emmanuel Renault critique Arendt’s characterization of agonism as a striving for distinction among equals. T hey insist, rather, that democratic agonism entails a struggle to realize political equality in a situation of social inequality. For A rendt, political freedom is synonymous with agonism since it is through striving for excellence that individuals transcend the quasi-natural determination of the social sphere, which is concerned with the preservation of life. C ontemporary agonists such as H onig, Tully and Markell recognize the problematic nature of the dichotomy between the social and the political on which Arendt’s thematization of agonistic politics relies. N onetheless, they have found her account of agonism attractive for developing an expressivist conception of agonistic politics as resistance to socially determined identities such as race, gender and sexuality (along lines similar to C onnolly). However, Deranty and Renault characterize Arendt’s agonism as aristocratic because it valourizes the transcendence of mass identities. In contrast, they argue that democratic agonism includes a strategic dimension, entailing a struggle against social processes of political exclusion by subjects heavy with identity. O n this view, democratic politics is agonistic because it entails politicization of social inequality. Instead of viewing equality as a necessary condition for agonistic politics, equality is understood to be the object of dispute that is constitutive of the democratic agon. Following from this, whereas from an A rendtian perspective the



Law and Agonistic Politics

legitimacy of law derives from its origin in praxis and its proper end is to sustain a space for agonistic politics, for D eranty and R enault democratic agonism typically contests the legal order and the political unity it presupposes because law so often entrenches social inequality and restricts political participation. Hans Lindahl similarly takes issue with expressivist theories of agonism because they presuppose what is actually at stake in social struggle, namely, reciprocity among free and equal members of the political association. Lindahl insists that agonistic politics should be understood as ineluctable and irreducible vis-à-vis the law. A gonistic politics is ineluctable due to the contingency of the legal order – that the political unity that a legal order presupposes might be constituted otherwise. Moreover, agonistic politics is irreducible because it is incommensurate with the prevailing legal order. From the perspective of law, agonistic politics is disorderly not just in the derivative sense that it is illegal but in the primordial sense that it contests what counts as legal and illegal in the first place. What is at ultimately at stake in agonistic politics, then, is the political unity in terms of which social struggle is represented. Far from being a legally mediated reciprocal conflict among equals, as Tully and others argue, the agon resides in the asymmetrical relation between ‘alegal’ acts that politicize a legal order and the legal response to such acts through the (re)enforcement and/or (re)constitution of the boundaries of the legal order. T his relation is asymmetrical because a legal order can only respond finitely to the political acts that contest it, i.e. by representing struggle as internal to the social unity that is at stake. In other words, a legal order can only respond to political agonism by rendering conflict meaningful in terms of the distinction between legal and illegal that the struggle would otherwise contest. O n this account, therefore, the condition of possibility of political agonism is not the common ground established by the formal legal equality between parties to a conflict. Rather, it is the asymmetrical ‘opening’ between the established legal order and political acts that intimate another way of distinguishing between legality and illegality, selfhood and alterity. In his contribution, D avid O wen defends an expressivist conception of political agonism. In particular, he argues against distinguishing agonistic politics as different in kind from ordinary politics on the basis that the former involves contest over rules whereas the latter is a contest within those rules to which all parties already assent. G iven an expressivist conception of human agency, such a sharp distinction between contests within the rules and contests over the rules is untenable. For, while all activity is rule governed (i.e. an activity is not possible in the absence of a set of expectations about what it means to do X), the rules that govern a particular activity cannot be specified independently of the activity but are exemplified in the act (we understand what it means to do X properly through the practice of performing X in particular cases). T his leads to an understanding of constitutional democracy as the medium of political agency. In a constitutional democracy, political agonism refers to the struggle to work out the terms of political association between free, equal and plural citizens through a practical orientation to the abstract and critical norms of

Introduction



popular sovereignty and the rule of law. Far from being potentially neutralizing constraints on the agon, as Lindahl argues, O wen insists that an orientation to these principles is a constitutive condition for democratic agonism. For what binds actors together in the shared enterprise of citizenship is the struggle to reveal what it means to follow these principles within the particular historical circumstances of the polity. This cannot be fully specified in advance by a determinate legal order. In the absence of a common orientation to these principles, the practice of democratic citizenship would not be possible. For, as O wen puts, they specify the shared mode of problematization of our political identity. By struggling to exemplify these orienting principles through participation in public life, the ‘we’ of the polity is (re)constituted and a sense of belonging is generated. From this debate a bright line seems to emerge between strategic and expressivist conceptions of agonism. Yet, as Jason Frank demonstrates in his analysis of the polemical speeches of Frederick Douglass, in practice these aspects of agonism tend to be interwoven. Frank discusses how the abolitionist movement in the United S tates contested the social and political exclusion of A frican A mericans by appealing to the abstract and universal norms of constitutional democracy articulated in the D eclaration of Independence. But also, and more fundamentally, Douglass sought to stake out a speaking position that was not afforded to him by the prevailing social order. Following Jacques Rancière, what distinguishes the abolitionist struggle as agonistic is the staging of a dissensus in which the internal division of ‘the people’ – as both the collective author of the legal order and the politically excluded poor – is made manifest. In his famous address, ‘The Meaning of July Fourth for the Negro’, Douglass addressed his audience from his socially determined identity as Negro: ‘This Fourth of July is yours, not mine. You may rejoice, I must mourn’. In Deranty and Renault’s terms, Douglass thereby participated in the agon as a subject heavy with identity. At the same time, however, he spoke in the name of a people to come, addressing his audience from a position denied to him by the social order, as if he was a free and equal member of the political association. A s such, he drew his authority to speak from this higher self of the American people: ‘not we the white people … but we the people – the men and women, the human inhabitants of the United States’. As Frank puts it, Douglass thereby spoke both from outside the people he addressed while at the same time claiming to speak in their higher name. A gainst an understanding of the abolitionist movement as part and parcel of an unfolding and self correcting constitutional tradition in the United S tates, Rancière’s thematization of agonistic politics is important for understanding how Douglass’ Fourth of July address exemplified a constituent moment that effected a break with the existing order. It involved a felicitous claim to speak on behalf of the people while at the same time challenging the legitimacy of the prevailing representation of who the people are. Frank’s analysis demonstrates the limitations of understanding democratic agonism only in terms of the intelligibility of political claims by virtue of their appeal to the abstract principles of popular sovereignty



Law and Agonistic Politics

and the rule of law. W hat is also central here is the sensibility of political claims, their aesthetic and affective aspect. C rucially, agonistic politics is always also fundamentally concerned with the staging or representation of political claims: it is concerned with transforming the context in which political claims can be heard by an audience as arguments that have a claim on them. A nd it is with this transformation of the political context in terms of which conflict is represented that a break is enacted with an existing social and/or legal order. A gonists want a theory of politics that is not a philosophy of right. A s such they understand agonism in terms of political action rather than philosophical truth. More specifically, as Alex Thomson discusses, agonists have sought to reconceptualize the relation between democracy and politics on the one hand and political theory and democratic practice on the other. R ather than representing conflict in terms of communicative rationality, agonists view conflict as an unavoidable and constitutive aspect of politics. Moreover, rather than seeking to establish a foundation for political institutions in terms of rational principles to which all could agree, agonists understand institutions to be the contingent outcome of political struggle. Following from this, agonists critique mainstream political theory for seeking to subordinate politics to transcendent reason. However, T homson argues, they remain modernists in wanting to establish a new ground for politics in praxis. T his leads them to an anti-theoretical politics, in which they substitute conflict for consensus as the lodestar of democracy. A gainst the philosophical politics of the agonists, T homson turns to the concept of polemos, as discussed by H eidegger and D errida, for a more adequate point of departure from which to understand the relation between (democratic) politics and philosophy. Both agonism and polemos refer to conflict or strife. However, whereas agon is a guiding distinction in terms of which the stuff of politics is recognized as political, polemos refers both to the general strife of Being and to a deconstructive way of thinking by which, as Thomson puts it, the absent presence of the truth is experienced in thought. T his leads to a shift in perspective from the ontic to the ontological, from the strife of political life to the experience of truth as conflict. The political implications of this shift in perspective are twofold. First, philosophical reflection takes a transhistorical or cosmological perspective that removes the question of taking a stand for or against the city from the remit of philosophy. Second, it leads to suspicion of the agonists’ attempt to re-ground politics in praxis rather than reason. To think in terms of polemos means to recognize that both consensus and dissensus threaten the destruction of politics, that there can be no ground for either difference or unity as rhetorical strategies. Agonism is usually invoked to argue that democracy is more than management by consensus and, moreover, that dissensus is both unavoidable and constitutive of the pursuit of the common good. Yet, against agonists’ widespread assumption that contestability does and should ‘run all the way down’ in a democracy, Bert van R oermund argues that there is a basic sense in which the Law cannot be interrogated. T his argument is developed via an engagement with C laude Lefort’s characterization of democracy as a regime in which the place of power

Introduction



is empty (le lieu vide du pouvouir). With this influential but elusive metaphor, Lefort means to indicate that what distinguishes a democratic regime from other regimes (monarchical, totalitarian, etc.) is the way in which a democratic society represents the source of legitimate power to itself. In a democracy the source of rightful power is ‘the People’. Yet ‘the People’ is dis-incorporated: no political body corresponds to this name. A lthough political actors must appeal to the People to legitimate their claims, in a democracy the figure of the people is kept in view for being symbolic rather than real. A s Van R oermund puts it, the wholeness of the People is realized precisely in the moment it is deferred and deferred in the moment it is realized. It is thus by reference to this empty place of (legitimate) power that politics is ‘staged’ (or represented) in a democracy. Democracy thereby institutes an agonistic political order by recognizing, as Lefort puts, the legitimacy of an incessant debate about what is legitimate and what is not. Conflict is taken to be constitutive for the flourishing of political community. Yet, van R oermund argues, democracy is agonistic in a more fundamental way than is recognized by Lefort due to the heteronomy that is an unavoidable condition of the democratic promise of public autonomy. Indeed, heteronomy is apparent in each aspect of democracy as a form of decision-making by the people in accordance of the rule of law. Firstly, because democracy is a way of making decisions, there is always heteronomy involved in the moment of decision itself. W hile in principle deliberation can be open-ended and inclusive, the need to reach a decision requires that debate is open and closed and this requires an element of rule. Secondly, because democratic decisions are taken on behalf of a people, there is an element of heteronomy involved in determining the relevant constituency, who is a member of the people and who is not. Thirdly, because decisions taken in the name of the people are supposed to accord with the rule of law, there is an element of heteronomy in the awareness that decisions about what is in the common interest of a determinate political community full short of our awareness of a wider common good (a proto-political community) that we intuit by reference to the rule of law. In a democracy there is, therefore, a fundamental sense in which the Law cannot be questioned because the staging of the demos is not itself on stage despite being a central aspect of politics. A long lines similar to Lindahl and Frank, van Roermund thus insists that the real agon does not occur between those who already recognize themselves as having something in common. R ather, it emerges in the disjunction between the representation of power and the tactics of power, in the rupture between the People and the population and the contest over what, if anything, the parties to the conflict have in common in the first place. In his contribution, Keith Breen challenges Kalyvas’ sympathetic reading of Mouffe as sharing the Ancients’ pragmatic concern to contain the destructive aspect of the agon. In contrast to A rendtian conceptions of agonism that understand politics in terms of freedom and plurality, Mouffe claims her conception of agonism is more realistic because it takes enmity and exclusion to be defining features of the political. A s already noted, for Mouffe, the achievement of democracy is to sublate antagonistic confrontations (in which enemies confront each other as an



Law and Agonistic Politics

existential threat) into agonistic social relations (in which adversaries understand their conflict in terms of the shared symbolic space of the polity). In contrast to the Greeks, however, Breen argues that Mouffe has an unduly optimistic view of agonistic conflict. Despite taking antagonism to be constitutive of the political, she presumes that antagonism can be overcome, channelled into socially integrative conflict. But such a view is only plausible on the basis of a peculiarly quietist conception of radical democracy that discounts conflict that would threaten the survival of the political association. C onsequently, Mouffe fails to develop an ethic of antagonism. Since she presumes that all antagonistic conflict can be sublated into agonism, Mouffe does not provide any guidance as to how we should deal with intractable conflict in which the other remains our enemy. Against Mouffe’s charge that Arendtian conceptions of agonism reduce the political to the ethical, Breen shows that, in fact, A rendt provides a rich resource from which to develop precisely the ethic of antagonism that Mouffe lacks. A lthough A rendt conceives of the political (isonomy) in opposition to violence (sovereignty), she nonetheless views these as inextricably interwoven. Moreover, despite her celebration of political action in terms of the freedom to institute new beginnings, she also recognizes that this same freedom threatens the political association by transgressing its laws and institutions. W hile praising the agonal spirit of the Greeks, she remains mindful of how agonism made alliances difficult between city-states and led to civil strife within. T his leads A rendt to recognize the fragility of the community that is constituted through action and to articulate an ethic of care for conserving the relationships and institutions that sustain political life. Moreover, this ethic of care for the world constituted with co-members of the political association extends beyond the polis to include relations with our enemies. Against the Greeks, she turns to the Roman conceptions of law and war to develop an ethic of antagonism underwritten by the Kantian precept that no war should be conducted in such a way that ‘would make mutual confidence in subsequent peace impossible.’ Nathalie Karagiannis and Peter Wagner further take up this question of the relation of the inside of an agonistic political community to its outside. W ith Breen, they note the failure of agonistic theories to account for how a democracy should relate to those non-members who are excluded from participation in its collective decisionmaking. Against this shortcoming of contemporary agonistic theory, they articulate the implications of their favoured conception of ‘synagonism’ for how a political community should relate to its strangers. Appropriating the Greek understanding of agonism, they define synagonism as the respectful struggle of one against another, bound by rules larger than the struggle, in view of excellence winning for the benefit of the city. In contrast to the presupposition of exclusion as a constitutive condition of political community in Mouffe’s agonism, synagonism starts from the principle of social inclusion or philoxenia in order to understand the social and political relations between members and non-members of a particular polity. Following the principle of philoxenia, strangers are welcomed in recognition of the benefits they bring to the city through their participation in social synagonism,

Introduction



especially in the realm of production. In the synagonistic polity foreigners would therefore come and go relatively unhindered. Yet philoxenia does not entail an open border. For this hospitality is conditional on the guest being amicably inclined toward the city and respecting its rules and ways. Moreover, the guest is admitted to the city on condition that she remains a foreigner. T he status of the guest is therefore temporary: there is no place in the synagonistic polity for permanent guests such as the Gasterbeiter in G ermany. For this would institutionalize an exclusionary politics that runs counter to the synagonistic principle of competitive struggle to achieve excellence for the benefit of the city. Moreover, it would contradict the imbrication of relations of production and citizenship in the synagonistic polis. C onsequently, after a time, guests must either become full members of the polity or leave the city. A ssuming the guest wishes to join the polity, the only condition for membership is the guest’s commitment to the spirit of synagonism. T he avowedly normative character of synagonism raises again the issue of the relation between strategic agonism (in which political struggle is a means for social transformation) and expressivist agonism (in which struggle is an end in itself since it manifests plurality and freedom). Like other expressivist theories, synagonism presupposes the recognition of equality and freedom as a necessary condition for agonism, whether between co-members of the synagonistc polity or (at least socially) between members and non-members. For strategic agonists, however, this appears to be begging the question since it means agonistic politics only refers to conflict that is mediated by already agreed upon norms and procedures. Between social unequals, by implication, agonism is not possible; there is only domination. Consequently, the sting is taken out of agonistic conflict since it is reduced to terms commensurate with its overcoming, represented as internal to a political unity that is removed from the field of contestation. In contrast to expressivists, then, strategic agonists conceptualize the agon in terms of constituent moments, political acts that establish a rupture with the existing self-understanding of the political community and thereby transform the social context in terms of which claims appear intelligible or unintelligible, reasonable or unreasonable, legal or illegal. Yet, as O wen argues in defence of expressivist agonism, it is only by virtue of shared orientation to the abstract and critical norms of popular sovereignty and the rule of law that such political action can be characterized as a democratic struggle in the first place. Central to the apparent disagreement between strategic and expressivist agonists, then, is the question of whether it is proper to speak of agonistic politics at all when conflict is mediated by commonly agreed upon norms and procedures. Or should agonistic politics be distinguished from ordinary politics, reserving the term to characterize conflict over the discursive field (‘the political’) that determines (albeit imperfectly) the available subject positions from which political claims can be articulated and heard? Emphasizing the strategic dimension of agonistic politics, Aletta Norval takes up again this question of the relation between struggles within the rules (the conventional) and struggles over the rules (the non-conventional) via an engagement

10

Law and Agonistic Politics

with speech act theory. In particular, Stanley Cavell’s notion of a passionate utterance (as distinguished from J.L. Austin’s conception of a performative utterance) provides a basis for conceptualizing an agonism that exceeds the bounds of its institutional signification, involving the constitution of alternative political subjectivities. By performative utterance, A ustin means to capture how to say something (‘I forgive you’) can also be to do something (forgive). The success or ‘felicity’ of such performatives depends on the acceptance of a convention in terms of which they can be judged to have been carried out. A s such, conventions establish roles that qualify a subject to speak and establish the terms in which what is said is meaningful or not. In contrast, C avell distinguishes passionate utterances in terms of the non-conventional effects that they produce in their audience. In the case of passionate utterances, there is no conventional procedure, the identities of addressor and addressee are not given but constituted through the utterance and, in having been singled out to respond, the addressor is free to contest the speech situation that the passionate utterance stages in the first place. In Norval’s view, the lawsuit brought by the Khulumani Support Group in the US S upreme C ourt against a number of companies who did business in apartheid South Africa, exemplifies a passionate utterance. Resembling what Frank refers to as a constituent moment, the class action aims to reconfigure the space in which the claim it brings can be heard. In applying an eighteenth-century A ct (the A lien T ort C laims A ct) to an unprecedented case, the conventional is thrown out of joint. Moreover, the articulation of this political claim is at the same time constitutive of a form of political subjectivity (‘unemployed workers’) that is irreducible to any subject position available within the social order (the prevailing discourse of the ‘new South Africa’). At the same time it singles out another subject (globalized capital) from which it demands a response, an acknowledgement that may contest the terms of discourse and the subject positions that the passionate utterance seeks to establish. Yet the Khulumani case also seems to confirm David Owen’s point that contest over the rules is often represented as a contest within the rules; that these two orders of contest are often indistinguishable. For, in order to be heard, the expressive utterance of the Khulumani claim must pose as a performative utterance, invoking a convention (the Alien Tort Claims Act) at the same time as it exceeds the institutional context in which the claim is raised. Similarly, for Fiona Jenkins the task of agonistic theory is to understand a speech situation as a space of struggle. S he further explores the agonic relation of the political community to its ‘strangers’ via a close reading of a television documentary based on interviews with some British Muslim men (‘the Beeston boys’) who belonged to the same local community from which the London bombers came. The report establishes a speech situation in which the men take the role of helping their audience to understand the actions of these ‘home-grown terrorists’. In doing so, the interviewees are confronted with a double bind. On the one hand, they appeal to the cosmopolitan sympathies of their audience by claiming to ‘understand’ these violent acts in view of their own experience of social exclusion as British Muslims and their outrage at the suffering of Muslims

Introduction

11

throughout the world. A t the same time, however, the expression of such politicized feeling confirms their identification as part of a problematic subaltern community. In this way they are required both to confirm their membership in the wider political community by condemning terrorism while at the same time assisting this community to understand the radicalization of British Muslims in confirming their affinity with them. This positioning of the interviewees by eliciting ‘politicized feeling’ exemplifies what R ancière calls consensus-effects, which re-inscribe the established terms of belonging within the political community. T he opinion sought from them to help understand is already shot through with explanation in terms of the expectations of the political community about the men’s problematic place within it. Within this frame, the significance of the politicized feeling of grief and anger is taken to be obvious as a confused form of thought (understandable but irrational) and thereby depoliticized. Yet, Jenkins also suggests that beyond its obviousness, the politicized feeling of the interviewees has the potential to politicize the speech situation itself and to denaturalize the subject position in terms of which the interviewees are situated. Following R ancière, this would require the staging of a disagreement, according to which their grievance against the British political community would be heard by their audience not as an expression of suffering but a claim about (in)justice. Like Karagiannis and Wagner, Adrian Little turns to the insights of social theory to develop a richer conception of political agonism. A ccording to Little, complexity theory challenges simplistic ontological assumptions that inform both deliberative and agonistic theories of democracy. S ocial complexity means that pluralistic societies cannot be managed by institutional design and attempts to do so will be prone to failure. Complexity can be understood in terms of four key features of non-linearity, path dependence, information loops and emergent properties. Little argues that, in conceptualizing the relation between popular sovereignty and the rule of law as co-original, Habermas tends to conflate complexity with pluralism rather than recognizing how complexity challenges static conceptions of plurality, according to which certain values are ascribed to particular groups or individuals. From the perspective of complexity theory, plurality cannot be dealt with as a question of management. Moreover, insofar as it always reduces complexity, constitutionalism appears irreconcilable with democracy. If H abermas tends to privilege constitutionalism as a way of managing social complexity, agonistic theorists such as H onig tend to privilege democracy with its propensity for disagreement and dispute. S uch an approach appears more compatible with the recognition of social complexity since it takes closure around a specific institutional structure to be problematic and exclusionary. However, certain thematizations of agonism may also be reductive to the extent that they fail to capture the complex and dynamic nature of political interaction. A s Little puts it, complexity theory suggests that agonism should be understood in more fluid terms, characterized by changing membership, contested boundaries of political interaction and emergent political arguments.

12

Law and Agonistic Politics

In the final chapter, I revisit whether agonistic politics can include contestation of the political unity in terms of which it is represented. T his is addressed in the context of indigenous peoples’ struggle for sovereignty in Australia since the establishment of a tent embassy on the lawns of Parliament H ouse in C anberra in 1972. A ppealing to principles of international law, A boriginal activists have argued that sovereignty was never ceded to the British invaders and therefore that a treaty remains to be negotiated between indigenous people and the settler society. In response, the former Australian Prime Minister, John Howard, declared that it was an absurd proposition that a nation would make a treaty with its own citizens. A s several contributors to this volume demonstrate, whether a political claim appears as reasonable or absurd goes precisely to the heart of agonistic politics. For the reasonableness of claims depends on the giving and receiving of reasons in terms of the foundational values of a polity to which all assent. In contrast, a political claim that contests the political unity from which the legal order derives its legitimacy is likely to appear unreasonable or absurd. Politics is agonistic, on this account, precisely to the extent that it involves struggle over the speech situation itself, transforming the social context in which the claim is articulated so that it might come to be heard. A s such the agon between indigenous people and the settler society in A ustralia might be understood either in Lyotard’s terms as a case of the differend or in Rancière’s terms as the staging of a disagreement. As a case of the differend, the absurd proposition of A boriginal sovereignty would amount to an unreasonable proposal or illogical assertion. From this perspective politics is agonistic because it is distinguished by the threat of the differend, the silencing of those who have suffered a wrong by taking away the discursive means to bring the wrong to recognition. T he various legal claims indigenous people have brought in an attempt to assert A boriginal sovereignty seem clearly to exemplify a case of the differend. A s the staging of a disagreement, in contrast, the absurd proposition of A boriginal sovereignty would appear as a ridiculous presentation. From this perspective, politics is agonistic because it involves demonstrating the wrong of the social order. T he A boriginal tent embassy can be understood as the staging of a disagreement in which the demonstrators both enacted their equality by addressing the A ustralian state on behalf of a sovereign people while testifying to their dispossession as aliens in their own land. A lthough the tent embassy was successful as a political demonstration, i.e. as an act of self-determination in and of itself, A ustralian A borigines have yet to establish a treaty with the A ustralian government. T o understand the embassy only in terms of a celebratory expressive agonism would therefore to be too glib about the ongoing social and political exclusion of A boriginal people. For their struggle is, in Deranty and Renault’s terms, an ‘abolitionist’ one, a struggle for decolonization. A nd yet, to understand the agonic relation between colonial governance and indigenous resistance in wholly instrumental terms would also be reductive. For the tent embassy is perhaps best understood as a failed revolution or in, Frank’s terms, an ‘unfelicitous’ constituent moment, i.e. a constituent act that

Introduction

13

has not (yet) come to be recognized as such. Yet, to the extent that the tent embassy brought into social existence a mode of political subjectivity (the sovereign A boriginal nation) that was not afforded by the prevailing social order, it remains a testament to indigenous freedom and, hence, to the ever-present possibility of decolonization in the present. A s should be clear by now, while all the contributors to this volume are sympathetic to agonistic conceptions of politics, we also critically engage with those takenfor-granted presuppositions that often underlie the contemporary celebration of conflict as an antidote to de-politicizing consensus. Examining the relation between law and agonistic politics affords a perspective from which to think more rigorously about the normative significance of social and political struggle in a democratic society, while also revealing the limits of any simple opposition between consensus and conflict theories of politics. As Andreas Kalyvas points out, there has been somewhat of an institutional and legal deficit in the agonism of the postmoderns (with the important exception of James Tully). It is hoped that this book will begin to address this deficit by deepening our understanding of the democratic agon and the ways in which law may serve to sustain or curtail it.

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C hapter 1

T he D emocratic N arcissus: T he A gonism of the A ncients C ompared to that of the (Post)Moderns A ndreas Kalyvas

T heories of democratic agonism offer a new understanding of the political along with a novel vision of democracy. Emerging from a, broadly defined, poststructuralist ontology while inspired by modern receptions of the ancient Greek legacy of the agōn, they elevate plurality, contest and antagonism, above and against the paradigmatic standing in contemporary political thought of rational deliberation, procedural neutrality and public consensus. Politics, defined agonistically, is a dynamic mobile field of power relations animated by disputes and struggles that forge identities, produce zones of exclusion and codify new norms and practices of inclusion. Undoubtedly, this rediscovery of agonism has been decisive for redirecting attention from agreement to conflict, from rationality to affects, from the singular to the multiple and from essences to contingency. T hese multiple shifts suggest a critical reorientation in democratic theory, bearing on the actual meaning, value, and radical impulses of democracy. For contemporary agonistic theories, it is the plural condition of social life and the conflictual being-together of differences that mostly define the democratic experience and account for the normative worth of democracy. In fact, the question of whether the many can live free is subordinated to the more pressing issue of how the many can live together (see D eveaux 1999; W enman 2003). Plural identities, their constitution, relationships, and confrontations, give rise to a new set of political considerations, overshadowing older conventional preoccupations with political freedom, the common good, or collective self-legislation, commonly associated with the modern democratic tradition, at least since Jean-Jacques Rousseau. Michel Foucault (1983, 222) foregrounds this re-signification in his recommendation that:

  Because of the size limits of this contribution I will selectively address the democratic agonism of the three following authors: W illiam C onnolly (1991; 2004; 2005; 2008), C hantal Mouffe (2000; 2005) and Bonnie H onig (1993a; 1993b; 1995). I do not intend to reduce the concept to their work. Several other contributions are worth discussing, but in the present context I can only engage with a few leading ones.

16

Law and Agonistic Politics Rather than speaking of an essential freedom, it would be better to speak of an ‘agonism’ – of a relationship which is at the same time reciprocal incitation and struggle; less faceto-face confrontation which paralyzes both sides than a permanent provocation.

With this pronounced focus on pluralism, identity and difference, conflict and exclusion, agonistic democracy has emerged as the most decisive ‘postmodern’ attempt to explicitly name a radical political project. It represents the utmost positive political moment of post-structuralist thinking. Yet, surprisingly, this bold move forward glimpses back at Greek antiquity to revive the almost forgotten concept of the agōn. T his most unexpected encounter between the A ncients and the ‘postmoderns’ is barely evoked in the silence of contemporary political theorists of agonistic democracy for the H ellenic resources upon which they draw to advance their democratic vision. Nowhere in their texts is the concept of agonism linked to its ancient existence as it were with Friedrich N ietzsche or H annah A rendt, the two last ‘Ancient’ agonists. There is no reference to how older layers of language, meanings and practices might still inform or could have survived residually in its recent revival. A nd nowhere does this literature examine how democracy and the agōn were initially intertwined in classical G reece in a rare historical synthesis that gave birth to an exceptional, short-lived form of popular politics. This historical and conceptual omission is emblematically reflected in standard but schematic historiographies of ‘postmodern’ agonism. They often begin with Nietzsche (1994), ‘the agonal prophet of the postmodern world’ (Lungstrum and S auer 1997, 1) to end with Foucault (1983) and François Lyotard (1984; Lyotard and T hebaud 1985). A brief linear history of agonism is thus established with its founding figures, its beginnings and trajectories, its concepts and names. T here is certainly something true in this narrative: the modern rediscovery did take place within the context of a post-R omantic and philhellenic G erman culture. Not only Nietzsche appealed to the Greeks but also, famously, Jacob Burckhardt (1998) and H annah A rendt (1958; 2005) and, perhaps, C arl S chmitt (2007) and Martin H eidegger (1992; see T homson in this volume). Equally important has been the relation with post-structuralism. In the unique agonistic combination of play, contest, performativity, contingency and unpredictability, post-structuralist currents identified vital allies against the hegemony of structures in the social sciences, the juridical logic of modern political theory and the rational essentialism of W estern metaphysics. N onetheless, the continuing absence of the A ncients in contemporary discussions on agonism is striking. Indirect and scattered references are not sufficient to compensate for this lack. As a consequence, the origins and   For example, see T hiele (1990); C onnolly (1993); S ax (1997); T ully (1999); S chrift (2001). What the ‘official’ historiography misses is the scope and richness of the agonistic tradition in the W estern political tradition. T his issue is too complex to be addressed here. For two different historical accounts, see R usso (2002) and Kalyvas and Katznelson (2008).

The Democratic Narcissus

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politics of agonism in Greek antiquity are ignored or kept separate from current debates. My contribution addresses this omission – or parts of it anyway (but see H oberman 1997). C omparing and contrasting the agonism of the A ncients to that of the ‘postmoderns’ I hope to bring the Greek experience to bear on contemporary questions and assumptions. Looking at the past of the concept as if through a mirror might not only increase the awareness of contemporary theories regarding the historical, political and philosophical traditions they rely on to build their distinctive democratic vision; it could also better clarify their conceptual assumptions and normative aspirations and, perhaps, prompt them to a certain reformulation and refinement of their radical claims and democratic objectives. Two broad aims, in short, inform the task of establishing the terms of a critical dialogue between the two kinds of democratic agonism: diachronically, to explore points of continuity and rupture, of affinities and innovations, in this long, uneven conceptual history; synchronically, to elucidate and assess, and perhaps sharpen, the democratic promises of the agonism of the ‘postmoderns’ by contrasting it to that of the ancients. I begin with the archaic origins of agonism and briefly examine its early cultural, symbolic and social meanings. In particular, I concentrate on the historically distinctive experience of agonistic individualism, which permeated the imaginary of those ancient athletic contests. In order to reach the anthropological core of the archaic agōn, I invoke the myth of Narcissus, as it reveals, so to speak, the agōn’s psychic structure. In the next two sections I discuss the politicization and democratization of ancient agonism and the affects of its narcissistic citizenship. A ncient democracy appears as a political and symbolic order constituted and transversed by the narcissistic drives of the many, the previously excluded, the poor and the multitude, who can now participate in adversarial public contests for triumph, distinction, greatness and primacy in the name of the city’s common good. By way of conclusion, I seek out the terms of a dialogue between Ancients and ‘postmoderns’ for a further elucidation of the democratic and radical possibilities of agonism. Four general changes are involved in the post-structural appropriation, which culminate in a ‘de-Hellenization’ of agonism. A central feature of this reorientation is the removal of N arcissus from the agon and the concomitant neglect of the institutional and legal apparatus of agonistic democracy in favour of a predominantly abstract and normatively inclined understanding of political conflict that equates the radical impulse of democracy with permanent contestation and social inclusion. Narcissism in Ancient Agonism To recapture the Ancient Greek practice of democratic agonism one needs to dig deep into its religious, martial and athletic archaic origins and trace the event of its political appropriation and institutional transformation by the classical polis. T o recuperate this past history is a thorny, impossible enterprise. T here are considerable

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Law and Agonistic Politics

obstacles. T he A ncients did not develop a systematic or explicit theory of the agon. T here is no political philosophy of agonism to depend on as a guide nor is there a text or treatise devoted to it. Equally meagre is the historical and philological scholarship on the subject. For these and other reasons, one has to revisit Greek antiquity and to sift through fragmented and dispersed textual and material sources in mythology, poetry, theatre, rhetoric, historiography, philosophy, visual representation, architecture and archaeology and try to combine and interpret the findings into an eclectic, tentative and uncertain framework that cannot but accept its own unavoidable arbitrariness. A ny claim to have fully recovered the ancient invention and experience of the democratic agon would be pretentious and foolish. Obviously, no endeavour of this magnitude is undertaken here. Far from it, my intentions are rather minimal. My approach, much narrower and modest, is a preliminary rumination on the democratic agonism of the A ncients; an initial, tentative effort to evoke something of its past political existence. One attempt at recuperation is via the agon’s etymological and textual origins. In our case, however, the sources are obscure and indeterminate, although H omeric epic poetry offers important clues (D uchemin 1945; Ellsworth 1971; Ellsworth 1976; S canlon 1983). T he archaic athletic agones/games provide another point of entry. Leaning perhaps on older religious rituals and holy festivals, hunting re-enactments and martial celebrations, these early forms of athletic competition, staged in sacred sites, became institutionalized around the ninth and eighth centuries BC (Miller 2004a, 20–30; S ansone 1988, 1–72; G olden 1998, 10–28). A n aristocratic value system permeated and coexisted with the religious and martial qualities of the archaic agon. T he aristocratic element is twofold. First, as a form of game oriented toward the selection of the aristos. A contest of strength, skill and courage, the archaic agon consists of a hierarchy of criteria by which the best adjudicate who is the truly best. S econd, as a social and cultural institution associated largely with the nobility and its symbolic space. In the agones, each contestant, in front of a public gathering of spectators, strove to excel, to distinguish oneself, to be the best and win; he sought to outdo and defeat all rivals in a fair, open contest, obtaining the recognition and admiration of the public that bestowed the victors with honours, praise and the favours of gods. This competitive aristocratic practice to achieve superiority is reflected in a variety of etymological meanings of the term that bring together a sense of being the first, of leading, driving and setting in motion, with the presence of an assembly, a place to meet to see games, the actual space-gathering of contest, a public staging of competition. In the simplest terms, the archaic athletic agon is the performance of a contest to excel in front of an audience.   There is debate over the religious or military origins of the Greek games. In one version, athletic contests emerge from within a religious culture of holy festivals and sacred rituals. In another, the source of athletic competitions is traced back to prehistoric hunting practices and ceremonial martial exercises (see Burckhardt 1998, 160–1; Huizinga 1950, 71–5, 30–2; S canlon 2002). S ee also Evjen (1986, 51–6; 1992, 95–104); Lee (1998).

The Democratic Narcissus

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T he axiological idea of excellence (Arête) seems to have defined the symbolic meaning of these early agonistic performances (H awhee 2002; 2005; Miller 2004a, 235–40; H uizinga 1950, 63–4). A n ethical ideal of a good, superior form of life is gradually fashioned, the life of striving to ‘always be the best and excel others’ (Homer 2003, VI.208). It is, foremost, a life and a way of living one’s life that stands apart from, and above, work and the exertion of physical labour for bare existence. A ncient agonism presupposes that the contestants are free from the necessities of life and enjoy the leisure time to engage in practices, relationships, and movements of no real practical, instrumental utility (Burckhardt 1998, 160–2, 185–6). For Galen’s Greek physician Hippocrates, ‘the practice of athletics has no use in the real business of life’ (Golen cited in Miller 2004b, 173). Released from the need to struggle for survival, athletes could partake in higher, materially useless activities in order to accomplish those noble deeds and worthy acts that separate the few from the many, the banausoi. T hus, the struggle for greatness was perceived as superior to the struggle for survival and basically reserved to the few (see D eranty and R enault in this volume). A s an aristocratic performance, the athletic agon was a sign of nobility and status privilege (Burckhardt 1998, 160–2, 170). A ncient agonistic ethos exhibits contempt for the peaceful, everyday existence of the common people (Golden 1998, 146–57). The defeat of one’s equal in a fair contest is a noble and worthy act, reminiscent of mythical heroes, great military deeds and actual warfare (C rowther 1999). Even the ordinary human fear of pain and death was disdained and defied in certain deadly games, where the defeated could be killed, mutilated and wounded in a dignified effort to measure up themselves against each other in a quest for supremacy. C ourage is precisely not to fear death, to ignore pain. T he English cognate agony, agonia, reflects the presence of pain in the struggle for pre-eminence between opposing forces (H uizinga 1950, 51). Solon’s reply to Anacharsis’ incomprehension for how Greeks ‘are willing to undergo these preliminary pains and to risk getting choked and broken in two by one another in order to get some laurel-berries and celery’ makes clear the agonistic attitude toward pain: we do not look at prizes which are handed out. They are tokens of victory and a way to recognize the victors. T ogether with them goes a reputation which is worth everything to the victors, and getting kicked is a small price to pay for those who seek fame through pain. It cannot be acquired without pain, and the man who wants it must endure many

 I will suggest that the athletic games provided a stage for the ruling class to reenter the public space, to perform extraordinary deeds, to disclose its skills and virtues, thus displaying the splendour of its superiority, and to reaffirm its pre-eminence over the social body of the city. A n agonistic stage, one could imagine, through which the city could recognize itself and identify with the competitive athletic spectacle.   Brophy 1978; Brophy and Brophy 1985; Polakioff 1987; Scanlon 2002, 274–321; Burckhardt 1998, 172–3; Miller 2004a, 56–60; Golden 1998, 24.

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Law and Agonistic Politics hardships in the beginning before he can even start to see the profitable and sweet ends of his efforts. (Lucian cited in Miller 2004b, 77)

A gony, the physical and emotional pain associated with athletic contest, came to denote in the classical period, with T hucydides, D emosthenes and A ristotle, an internal disposition, an inner tension and extreme anxiety, a concentration of power before an imminent decision, and an intense concern for victory in face of an approaching struggle. And although the possibility of sacrificial death gradually declined as the games became more institutionalized, technical, professional and commercialized, it never was completely ruled out. In this early period of the agonistic culture, an archaic ethos of individuality was forged through a staged rivalry and a public fight with one’s equals. As ‘the emphasis is exclusively on the individual and his competitive capabilities,’ agonism comes to describe individual endeavours and movements, embedded in reciprocal relations with others but understood in terms of self-regarding motives (Miller 2004a, 29). C ertainly, the pleasures of victory pass from the person to the community and the excellence of the victor reflects the excellence of his city. T he contestants stood and fought for particular families, clans, tribes and cities and their actions were rooted deeply within kinship relations, blood lines, and ancestral genealogies, all infused with collective significations that surpassed their individual particularity in that they represented the group to which they belonged (Thucydides 1974, VI.16.2). Still, it was a definite person who fought and competed with the unequivocal desire to excel and win. And it was a specific individuality who was awarded, praised, admired, and whose singular presence was applauded and his name sung. Poets composed odes for the winners of games, commemorating their exploits and victories, and ensuring their names will be remembered forever, beyond and above death (O’Sullivan 2004; Golden 1998, 74–103). Sculptors and painters did the same (G umbrecht 2006, 97). T his artistic and aesthetic immortalization of individual winners corresponds and seems internal to the cultural world of agonism that encouraged competitiveness, valued personal ambition, the ‘friend of fame’, and rewarded the desire for glory and greatness through an actual victory over one’s equals in a fair, public fight. This glorification of individualities, a kind of pre-modern cult of personality, represents a specific adversarial culture of individualization and subject formation and the affirmation of one’s own distinctive self through institutionalized practices of mutual recognition that were deeply relational, oppositional, physical, conflictual and public. Predictably, this incipient form of agonism had strong masculine connotations and was associated with an axiological understanding of manhood. T o prove oneself in front of and against others, in activities that emulated hunting or military exploits, points at an ideal of man as a warrior and fighter, fearless, decisive, violent and competitive. Respectively, the experience of defeat signified a great reduction in a man’s status. To lose in an athletic agon was shameful and dishonourable. There were occasions when losers would only return at night in their cities, like

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vanquished armies, shattered and humiliated, away from the disparaging gaze of their fellow citizens (Pindar 1997, Olympian VIII .68–71, Pythian, VIII .81–7). Re-entering one’s community defeated, like in wars, meant stigmatization, a long, painful prospect of infamy. Losing was experienced both as collective and individual shame. Thus, the stakes of the archaic agon were high, for not only to secure victory but to avoid defeat at any cost had crucial implications for one’s social reputation, personal sense of worth, pride, experience of individuality and overall place within one’s community. T his symbolic and axiological ideal of masculinity was embedded within a wider aesthetic culture that promoted and celebrated beauty, strength and bodily perfection (Gumbrecht 2006). An early conception of the care of the self is at work in the archaic agon, where distinction and superiority are correlated with physical harmony and muscular splendour. T he materiality of the body expressed social pre-eminence and the mythology of epic poetry provided ample quasi-divine, heroic models to try to emulate and surpass in magnificence (see Miller 2004a, 160f.). T hree general aspects of the athletic agon are worth considering. First, it was a form of performance. A staging of bodies, where their movements are enacted and played publicly in front of an audience and according to a set of strict rules (S teiner 1998). S econd, as a form of competitive contest, agonism entails the institutionalization of contingency derived from the principle of equality: the outcome of the contest is not predetermined. For, ‘god is not the judge of games, but of life’ (Artemidoros cited in Miller 2004b, 70). Any result is possible. This unpredictability certainly contributed to the intensity and pleasures of the agon for spectators and athletes alike and fostered respect for the norm of equal treatment established by the rules and rituals of the athletic agones. Not knowing who the winner will be must have been an important component of the staging of the archaic games and of the agonistic ethos as a fair public fight among peers with equal chances of exceeding and winning. R ecognizing this contingent character partly explains the ancient insistence on procedures and rules for ensuring the fair (dike) character of the game (tyche). T hird, a narcissistic drive seems to have informed agonistic contest as the best emerges from and is shaped by highly ritualistic and adversarial struggles for personal greatness and glory. The individual urge to assert and affirm oneself against others is a distinguishing symptom of self-love. N ote the absence of team events from the archaic games (Miller 2004a, 28–9; Poliakoff 1987, 107). Individual winning is the manifest purpose of the athletic agon; public adulation is the ultimate prize, the real crown, for the victor’s triumph, his athlos (H uizinga 1950, 63). T o win is  H ere lies the main difference between agonistic theories and Marxism. A lthough the latter consists of a theory of social conflict, it lacks several attributes of agonism. For instance, the plurality of identities is subordinated to a binary model between two competing universalities; the result of class struggle is historically predetermined and does not permit any contingent outcome; the political is treated as a reflection of deeper socio-economic forces; and the political role of affects and embodiment is overlooked by Marxism.

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‘to be admired by the mortals’, to be loved. T he agon is permeated by the desire to be praised and honoured for one’s excellence, that is, to love oneself through the recognition and love of others. If for Aristotle (2000, I.5.2–6), ‘men crave honour in order to assure themselves of their own merit’, in the agon they crave glory to assure themselves of their own self-love. In the early agonistic culture there is the carving of a symbolic space where narcissistic drives are acknowledged, released, staged, performed, regulated, sublimated and celebrated. T he love of oneself is publicly encouraged and commemorated through mutual relations of competition that ascertain which individuals are as distinguished and extraordinary as to deserve the recognition and admiration of all others. H ere I draw on the myth of N arcissus to further elaborate and better clarify the narcissistic kernel of ancient agonism. It is a rich myth that comes to us from several sources, in multiple, incomplete versions, with a long history of innovative interpretations and bold appropriations. D espite noticeable variations, N arcissus appears in ancient mythology as a figure of self-love, someone who loves himself with a love mediated by a passionate attachment to his own reflection.10 In the myth, Narcissus, arriving at a spring, ‘fell in love with himself’ (Pausanias 1935, IX.31.7). ‘I am burning with love for myself,’ he exclaimed (Ovid 2004, III.437– 74). H ow did this happen? A s O vid (2004, III .410–20) narrates, while N arcissus bends over the river ‘to quench his thirst, a different thirst is created. While he drinks he is seized by the vision of his reflected form. He loves a bodiless dream.’ Narcissus fell in love with his own beauty as it was reflected on the surface of the water (Philostratus 1931, I.23). H e loved himself through his visual re-presentation. A nd he loved so much his own copy that he attempted to unify his body with its double, the real with its imitation. ‘Narcissus, who it is said, came to the spring and gazing at his beauty on the water, died among the N ymphs, for desiring to unify with his eidolon’ (Callistratus, V:4). So he drowned. But even after his death, and in Hades, Narcissus mesmerized by his double and still in love kept searching for his lost beautiful reflection (Ovid 2004, III.348–450). Narcissus’ desire is certainly self-love. But it is not fully transparent or unequivocal. It is constituted, mediated and distorted by an image, the reflection of his body, a visual replica that splits N arcissus into a loving subject and a loved object. T o love himself, N arcissus has to become two in one, to objectify and idealize his subjectivity, and to make it present to himself (Philostratus 1931,   From a 472 BC inscription on a statue base of white marble found at O lympia cited by Miller (2004b, 113).  C onon in Photius 1994, III:134b; O vid 2004, III.339–510; Pausanias 1935, IX.31.7–9; Plutarch 1997, 7.4; Plotinus 1991, I.6.8; Philostratus 1931, I.23.   Vinge 1967; Pulver 1986; N ouvet 1991; Frontisi-D ucroux and Vernant 1997, 200–241. 10 I do not intend to include or discuss modern psychoanalytical theories of narcissism. For these, see Freud (1966; 1986; 2006); Lacan (2002); Bromberg (1986); S chultz (1994). For two recent psychoanalytical readings of the ancient myth of N arcissus in O vid and Callistratus, see Shadi Bartsch (2006, 84–102) and Jas Elsner (2007, 133–55).

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I.23). He takes himself both as the subject and object of his love. This effect of duplication and repetition in representation makes Narcissus ‘his own lover,’ the lover of himself through the love of his own image (C onon cited in FrontisiD ucroux and Vernant 1997, 201). T he agonistic quest for admiration, to be honoured and loved, is a manifestation of self-love, of loving oneself through the others’ gaze. Instead of a visual image as in the myth, it is the veneration and love of others that objectify and idealize the subjectivity of the contestants and feeds their narcissistic desires. A ncient agonism is, among other things, a strategy for inducing others to love you so that you can love yourself through their love for you. In the archaic athletic agon, the narcissistic love of oneself is constituted and represented through the reaction, shouts, gestures, assent and the adulation of the spectators. W inning is one thing, but winning in front of an audience, of one’s own community, is another. The staging of the stadium is akin to a gigantic mirror that reflects and doubles the winner into a physical person and its symbolic (heroic) re-presentation by the viewers. It also magnifies and idealizes the reflection. The victor sees himself through the eyes of the crowd, which divides him into the mortal and the sublime, and like the spectators, he falls in love with his own image, his double. He sees himself as the audience sees him at the enthusiastic pinnacle of a victory, in a happening of collective idolization. The Democratization of the Agon A round the middle and late archaic age, between the seventh and sixth centuries BC, a significant transformation began: the gradual expansion of agonistic practices in diverse social settings and cultural spheres. A rtistic, legal, rhetorical, philosophical, medical and musical contests, to name just a few, came to supplement athletic games, which themselves slowly opened up to allow individuals from broader and lower social strata to compete. T his enlargement, proliferation and dispersion of agonism within and outside the athletic world, which according to Burckhardt ‘led to the whole of Greek life being dominated by the habit of competition’, brought crucial changes, some vital for the impending politicization of the agon and the making of ancient democracy (Burckhardt 1998, 182). First, the distinctive physical aspects receded and agonism took primarily the form of a public contest of words, a discursive dispute. N otwithstanding the enduring presence of athletic competitions, one notices a steady pacification of the agon. A lthough it retained its martial connotations and metaphors, it slowly gave up its more physical and violent attributes to develop in the direction of symbolic and sublimated confrontations for excellence and adversarial forms of public display. R hetoric, itself an agonistic practice, transformed weapons and physical strength into words and oration (Hawhee 2002; Johnstone 2006). Second, agonism became more inclusive and diversified. Poets and musicians, artists and rhetoricians, doctors and potters, historians and sophists, all engaged in competitive contests for distinction

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and fame in front of diverse, mostly self-constituted audiences (Poliakoff 1987, 104–107; S ansone 1988, 76–8). W ith the transition from the archaic to the classical polis, the aristocratic spirit became increasingly detached from its social and material bases, as additional social groups were gradually forming and participating in their own multiple agonistic spheres. T hese changes culminated in the democratization of the agon, that is, in the singular encounter of the democratic logic of equality with the aristocratic spirit of excellence (Kyle 1997). T he political transformation and its democratic appropriation is well captured by Arendt’s observation that ‘the public realm itself, the polis, was permeated by a fiercely agonal spirit, where everybody had constantly to distinguish himself from all others, to show through unique deeds or achievements that he was the best of all’ (Arendt 1958, 41). In the democratic city the entire demos of free and equal male citizens could strive for excellence and glory in political contests and oratory disputes over the definition and realization of the public good. C lassical democratic agonism relied more on words and speech, the giving and taking of reasons, adversarial public argumentation and elaborate strategies of rhetorical persuasion and less on bodily strength, physical agility and the muscular mass of the archaic athletic agon. A n agonistic mode of reasoning came to occupy the public space of contestation (H uizinga 1950, 76–88). T his extraordinary encounter and blending of two opposed terms, democracy – isonomy and the rule of the demos, the many – and aristocracy – the competitive struggle for glory and individual distinction – produced some important innovations. For one thing, the politicization of agonism meant that the criterion of excellence was now transformed by how one’s civic participation in common affairs contributed to the good of one’s city better than anyone else (see Karagiannis and W agner in this volume). T he pre-eminent citizen was he who gained the approval and assent of his peers; whose proposals were ratified by the popular assembly to become public policy; whose actions and deeds were understood to procure more greatness, prosperity and security to the political community than those of his rivals; and who shared in public burdens, holding various offices, and discharging his civic functions with responsibility and trustworthiness. T o be recognized as the best and the first, admired and praised, one had to persuade the many with reasons and actions that he served the city better than his fellow citizens. A nd when he did, the city followed him and bestowed him with distinctions, offices, and glory. In Pericles’ terms: whenever each man has earned recognition he is singled out for public service in accordance with the claims of distinction, not by rotation but by merit, nor when it comes to poverty, if a man has real ability to benefit the city, is he prevented by obscure renown. (T hucydides 1974, II .37)

T he democratization of the archaic agon is visible in the material changes pertaining to its staging. A s a novel agonal space, the public assembly of the demos supplemented the previous spatial division between actors and spectators

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in that every spectator could now be an actor and the viewer became the performer and vice-versa. T he democratic demos created a new architectonics of a more equal, polyphonic space for competition that fused the physical site for the gathering of the audience with the actual performance itself. A udience and performers interchanged roles, becoming one and the same thing. O ne could be both. T he staging of the political agon became more inclusive and participatory as it grew in energy and power. S imilarly, the competition itself became more fluid, contingent and volatile as winners and losers could challenge more often each other with the positions of power, pre-eminence and influence in perpetual alternation. T his constant instability was integrally related to the democratic spirit of equality, its contingent existence that resists the solidification of asymmetrical relations of power, which tend to perpetuate themselves at the detriment of an ongoing democratic competition. It was also associated with classical democracy’s infamous tumultuous and volatile tendencies. In addition, this democratization meant that peasants, labourers, the uneducated and the urban poor were, for the first time, welcomed to formally compete for excellence as equals against their more learned and wealthy fellow citizens. ‘And what could be more convenient than a game in which everyone, no matter his status or career, can participate?’ (Galen cited in Miller 2004b, 121). Democracy is such a game. A ll free male citizens could strive to excel in civic virtue, to distinguish themselves and to struggle to establish the greatness and superiority of their unique individuality, independently of class and wealth, birth and nobility, knowledge and expertise, status and occupation. In agonistic democracy everybody, at least formally, could attempt to compete to be the first and best. The agon’s contribution to the making of ancient democracy with respect to equality and the rule of law is also significant. For instance, the democratic institutionalization of legal equality, ‘where everyone is equal before the law’, follows and emulates the procedural organization of agonism (T hucydides 1974, II .37). T he rules of an ancient competitive game were absolutely binding, allowing no exceptions, and making no distinctions. They applied equally to all participants. A ncient athletics were rule-oriented contests (T ully 1999, 162–9). In the athletic agon, as Stephen G. Miller observes, ‘winners are determined strictly on the basis of objective criteria – a form of isonomia – and committers of fouls are flogged regardless of social or economic status’ (Miller 2004a, 233, 17–18). Before the political institutionalization of agonism in the democratic polis, the authority of athletic norms and the spirit of equality among opponents are early but clear expressions of isonomia and the promise of equal treatment (Poliakoff 1987, 18). Thus, an interesting dialectical relationship took place between the democratization of the agon and the aristocratization of democratic politics. A creative process of mutual contamination occurred between these two opposing logics. A s the multitude acquired access to a practice that once was the privilege of the nobility, the democratic city absorbed and redirected to new ends the struggle to excel others in search for personal admiration and glory.

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Law and Agonistic Politics

The Counter-Narcissistic Legal Apparatus of Ancient Agonistic Democracy Viewed through the prism of agonism, ancient democracy is understood here as a political and symbolic order that facilitates, regulates and channels the narcissistic urge of a multitude of individuals who compete to win and outdo each other in an adversarial quest for greatness, distinction and primacy. A gonistic citizenship is predicated on the freedom to vie for glory and fame independently of one’s social standing, wealth or education, but through one’s dedication and services to the public interest and within the legal, cultural and ethical constraints of the city. Citizens strive to affirm themselves by competing for authority, popularity, influence and leadership, that is, by participating in the politics of the demos and contributing to its greatness through the excellence of their speech and deeds and the intensity of their civic engagement. Political participation is treated as the focal, most worthy venue to struggle for admiration, to procure self-love through the love of others. T he individual ambition for reputation and approbation is the driving incentive of democratic citizenship as the narcissistic demand for distinction is the motivating force of civic participation and public dedication (see Poliakoff 1987, 105). By politicizing and democratizing the agon, the classical polis seems to have discovered a powerful mechanism that turned the narcissistic love of oneself into the civic virtue of loving one’s country and mobilized self-seeking passions for common ends. Individual ambition is transformed into a public force that potentially could benefit all by channelling self-regarding motivations and their conflictual symptoms into public-oriented action. Blending the physis of N arcissus with the nomos of the agon, ancient democracy mobilized personal self-love and the struggles it generated for the good of the community. Metaphorically speaking, classical democracy is the regime of N arcissus rather than of A thena, where love of oneself is transformed into love of country. S tarting from the mytho-anthropological premise that human nature is competitive, ambitious, egocentric, envious and narcissistic, oriented primarily to the love of the self and its public display, driven by the need of recognition, and propelled by personal ambition, classical democracy appears as a historically unique political form and the most intriguing of institutional orders: while it broadens and promotes the egocentric and adversarial drive to distinguish oneself, it also seeks to contain and curb it, to exploit and consume it, to use it for its own ends. T here is a powerful sense of realism in this understanding of human nature and of the manifold possibilities it gives birth to, an understanding that cut across and goes well beyond the Judeo-Christian binary of good and evil. Something splendid and elevating but also factional and destructive looms within the human that neither should be repressed nor reserved for the few. R ather, ancient agonistic democracy acknowledges the Narcissus within each one of us by exploiting its creative potentials and motivational force with appropriate institutional and symbolic incentives while it simultaneously tries to devise constitutional and legal limits to control its querulous, tumultuous effects.

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C ontrary thus to conventional depictions of ancient democracy as a natural organic community, collectivist and/or communitarian, derived from a single concept of the good, agonism gestures towards a different interpretation, or at least illuminates significant aspects often ignored. It is not Jean-Jacques Rousseau’s (1997, I.7) daunting vision of an overarching, uniform civic ethos, internalized by all citizens who, correctly educated and socialized, learn to voluntarily sacrifice their own interests in the name of an abstract shared good and thus ‘forced to be free’. Rather, it is the sincere and realistic acknowledgement and productive use of individual narcissistic needs that, if correctly combined, institutionalized and channelled, are made to coincide with and work for the public interest. Agonistic democracy, pace Rousseau (1997, III.4), does not need ‘a people of Gods’ because it is already suited to ‘men’; it channels and stirs the narcissistic passion of self-love towards the common good by retranslating the meaning of excellence into civic virtue. N arcissistic self-love coexists with civic virtue as they feed on each other. It is precisely because of agonistic individualism that ancient democracy had to face a remarkable political dilemma unique to its agonal form: can Narcissus be reconciled with equality and stability? H ow can the individual desire for superiority coexist with the equal rights of all? C an democracy tame N arcissus and evade from drowning? N ot for Polybius, who elaborated, in his cyclical theory of regime change, a general theory of democratic decline in terms of agonism. In fact, for the Greek historian, writing in the second century BC, agonism becomes the natural cause and tangible symptom of the unavoidable collapse of democracy and its transformation to and/or replacement by ochlocracy. A s the new generations ‘become so accustomed to equal and fearless speech that they no longer value them’, they begin to aim at ‘pre-eminence’ for purely egoistic reasons, devoid of any civic or collective goal and in order to satisfy their personal ‘lust for power’ (Polybius 1979, VI:9.6) Divorced from its public signification, agonism is perverted into what Polybius shrewdly calls a ‘reckless gluttony for fame’ (ἂ����� φρονα δοξοφαγίαν), which compels individuals to claim excellence and superiority through bribes, violence, and deceit and not through the personal skills displayed in a fair contest (Polybius 1979, VI:9.7). A t a latter point, and in the context of an agonism gone all wrong, C icero expressed the dilemma of this ‘desire for pre-eminence’: the more outstanding an individual is in greatness of spirit, the more he desires complete pre-eminence, or rather to be the sole ruler. But when you desire to surpass all others, it is difficult to respect the fairness that is a special mark of justice. Consequently, such men allow themselves to be defeated neither by argument not by any public or legal obligation. Only too often do they emerge in public life as bribers and agitators, seeking to acquire as much wealth as possible, preferring violent pre-eminence to equality through justice. (C icero 1991, I.64)

C lassical democracy offered to the many the equal right to compete as peers in the political realm and to partake of the pleasures and honours of victory,

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acknowledging in this manner that the narcissistic affects of the many are as equal and worthy as that of the few. As a result, it had to cope with the increased risks of disagreement, intense competition, quarrels, civil strife, stasis and even the dissolution of the social. The accumulation of the non-rational, selfish and selfdestructive impulses of self-love, like vanity, arrogance and envy, could be fatal for democratic politics as they were imminent to its agonistic existence. By enlarging the space and encouraging the practice of agonistic contest so as to include the entire community of free male citizens, democratic institutions were confronted with the demanding task of how to limit its explosive, conflictual tendencies and achieve a relative political stability. While the Ancients were aware of the necessity, benefits and joys of the agon they also knew its treacherous, centrifugal and factional side. After all, in the Narcissus myth, the love of oneself takes the form of a divine punishment and everlasting curse. Self-love was the gods’ firm reaction to Narcissus’ inability to love others. H e was thus condemned to an insatiable desire, an impossible love, a love that could never be fulfilled. Likewise, the agon threatens the political association with corruption as it tends to instrumentalize and denigrate politics for one’s private interests in a visceral quest for pre-eminence. This threat was a permanent reminder of the truth in the myth of N arcissus, his punishment and the harmful potential of self-love. This insight is powerfully evoked in Hesiod’s story of the two forms of Eris, strife: the bad that fosters over-ambition, envy, and distrust, causing wars, bloodshed, and destruction and the other, the good Eris that stimulates rivalry and competition and promotes collective betterment through adversarial relations (H esiod 1999, 12–16). A ncient democracy sought to contain the narcissistic forces it helped release into the public sphere and prevent from causing civil unrest, factional struggles, disorder and destruction. T he realization of how the spirit and practice of political agonism threatened to overwhelm democracy, to tear it down through opposed forces and irreconcilable quarrels, propelled democratic A thens to develop a complex institutional and juridical system of self-limitation and self-correction, a counter-narcissistic apparatus of power. W ithin the limits of this contribution, I will briefly comment on only two such ‘agonistic’ institutions designed to contain agonal action and thus to protect it against its own excesses: ostracism and tyrannicide. O stracism appears with three functions in this agonistic reinterpretation of classical democracy (see Karagiannis and Wagner in this volume). There is first its levelling, stabilizing function that A ristotle discussed in detail. T he law of ostracism, he argued, reconciles two distinct, antithetical logics: the democratic principle of equality and the aristocratic spirit of excellence, the interests of the many and the interests of the best. Aristotle keenly realized that the spirit of the agon is aristocratic as it bestows to one or to the few the title of the best and superior, distinguishing him or them from their fellow citizens (A ristotle 1998, III.viii.1–2). T his is in tension with the democratic principle of equality and of equal political participation (A ristotle 1998, III.xi.13). T he device of ostracism attempts to relieve the opposition between

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these two principles. It does so in the form of a levelling legal procedure that flattens the citizen body: the banishment of extraordinary political citizens (A ristotle 1998, III.viii.30–8; cf. Forsdyke 2005, 274–6). For Aristotle, the sheer existence of an outstanding individual, who seeks and succeeds to overreach is a threat to democracy. C ompetition among equals is undermined by an extraordinary contestant. O stracism, therefore, ‘was also used to remove any other person who seemed to be too great’ because ‘such a man will naturally be as a god among men’ (Aristotle 1984, xxii.6). Such a standing citizen deserves to be king, Aristotle (1998, V.xi.5) affirmed, and therefore he cannot coexist with democracy. T he aristocratic ethos of agonism is an injustice, a threat to equality, which the institution of ostracism is devised to address and remedy. Evaluated in terms of equality, as A ristotle (1998, III.viii.6) observed, ‘the argument for ostracism has a certain element of political justice’. Agonistic equality may be an oxymoron as it is not at ease with extraordinary virtues, which are the properties of the few and not the many. Ostracism is like ‘level[ling] the cornfield by plucking off the ears that stood above the rest’ and ‘has in a way the same effect of docking off all the outstanding men by exile’ (A ristotle 1998, III.viii.4). N ietzsche focused on a second, productive and energizing function of ostracism that in Bonnie Honig’s (1993b, 530) words ‘evidences not an intolerance of excellence but a commitment to its (re)production’. It works as a stimulant that removes outstanding citizens and keeps alive the motivation to compete and win, the vital force that drives the cultivation of superior individualities in agonist contests. Who wants to compete if the odds of winning are already known to be null? A permanent victor causes a loss of interest in the game with the ensuing result that no other great personalities will be forged out of the struggle to excel. With ostracism, Nietzsche (1994, 192–3) observed, ‘the pre-eminent individual is removed so that a new contest of powers is awakened: a thought … which assumes that there are always several geniuses to incite each other to action just as they keep each other within certain limits, too.’ Unlike Aristotle’s interpretation that focuses on the levelling, egalitarian effects of ostracism, Nietzsche’s interest is motivated by an aristocratic anxiety that the development of monopolistic tendencies may block the adversarial production of additional agonistic subjectivities. At stake, for N ietzsche, is not equality but disproportionality, not uniformity but plurality. Finally, ostracism has a protective function as well: to minimize and contain the likelihood that power may yield to purely narcissistic impulses to become the lifeless instrument of individual self-love. The figure of the (bad) demagogue incarnates this specific danger of narcissism. The madness of Narcissus takes on the form of a warning against the temptation to use politics solely for one’s selfaggrandizement. Thucydides’ (1974, VI.15) Alcibiades, for instance, is overtaken by this madness that puts in motion the fall of Athens ‘and to a great extent it was this which destroyed the Athenian city’. Ostracism provides a safety-valve to protect the democratic city from individual over-ambition, immoderate self-love, the reckless quest for superiority and hubris. In search of personal power and glory, the demagogue deceives, manipulates and lies to defeat his rivals, win a dispute and gain the favour of his fellow citizens, indifferent to the common good of the

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city. By overturning the logic of political agonism, the demagogue subordinates the city to his self-love and elevates himself into the highest end of politics. T his point brings me to a second agonistic institution of ancient democracy: the laws of tyrannicide. Anti-tyrannical legislation designated the tyrant as ‘public enemy’ πολέµιος and called for his assassination.11 T hese extraordinary laws aimed at removing by murder any tyrant or aspiring tyrant. T yrannicide was intended to eliminate not extraordinary individuals but the impostors who seek to win by cheating and breaking the agonistic rules. From the ethos of democratic agonism, tyrants are those who desire to win and gain admiration and fame, influence and power, without a fair contest and with no real rivals; who aspire to outdo all others with means external to the rules of the game, such as fraud, intimidation and violence, and against the principle of formal equality among contestants. T yrants do not care to display true excellence or perform admirable acts as they are not prepared to lose. C ompetition is turned into a sham and the spirit of equality and competitive respect is destroyed by force and cunning. The tyrant fixes the result of the contest before it has started and fakes a victory without a fight. He can decide to break the rules, invoke them discretionarily according to his whims, or ignore them altogether. H e negates the logic and performance of the agon. For this reason, tyranny must be cast out, for it threatens the existence of the agon as such (Huizinga 1950, 11). Tyranny is anti-agonistic. As Burckhardt (1998, 160, 161) correctly understood, ‘tyranny … was inimical to the agon’ as it destroys the principle of equal and fair contest by monopolizing victory and prohibiting anyone else from competing for admiration and glory. Ironically, but quite consistently, according to the various A thenian laws of tyrannicide, those who were willing to undertake this task and carry it out successfully were to be admired, applauded and praised as the foremost citizens. In fact, tyrant-slayers became incarnations of democratic citizenship and constitutive figures of its popular mythology. The Agonism of the (Post)Moderns Compared to that of the Ancients As sketchy and incomplete as this recuperation is, still it invites a preliminary reflection on the initial encounter between agonism and democracy. It also illuminates crucial aspects of this political experience that are neglected in more canonical accounts, such as the narcissistic drive of ancient competitive games, the individualistic dimension of agonistic democratic citizenship and the intricate institutional structure of agonal democracy. Finally, it establishes the terms of a critical dialogue and conceptual comparison with the democratic agonism of the ‘postmoderns.’ I now turn to explore lines of engagement and intersection between the two and to discuss the recent revival of the agon in contemporary

11 A ntocides 1982, I.96–8; Merritt 1952, 355–9; Lysias 1988; Lucian 1996; O stwald 1955; Jaiszi and Lewis 1957; Podlecki 1966; Ford 1985; Taylor 1992.

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political theory through the lens of its Greek precursor as outlined in the previous sections. Undoubtedly, the emphasis on disagreement, contestation and strife remains constant in contemporary agonistic theories and testifies to a conceptual continuity. Agonism, ancient and ‘postmodern’ alike, consists of confrontational strategies and adversarial acts. Both Ancients and ‘postmoderns’ view political conflict as central to democracy. They understand politics as the enactment of public disagreement and dissent. Reminiscent of classical agonism’s inclusion of the lower popular social strata into political adversarial contests, ‘postmodern’ agonism solicits the inclusion of difference and otherness in the public realm. Its call for the politicization of identities echoes ancient agonism’s politicization of N arcissus. It incites a multiplicity of particularities and cultures to participate within a common symbolic space and display themselves in the course of public debate and political strife against each other. Notwithstanding these affinities and continuities, the current revival of the agon in political theory does not suggest a nostalgic appeal to a pre-modern Greek past. It does not indicate yet another neo-classical revival. Quite the opposite, I would argue. It represents a ‘de-Hellenization’ of agonism, a considerable divestment of its ancient significations and a radical redefinition. At least four broad changes are involved in the post-structural appropriation. A lthough they do not appear together in all contemporary agonistic theories, they indicate certain of their most vocal and influential properties. First, there is a comprehensive shift regarding the subject of the agon from the individual person to the identity of a group, that is, to a collective entity with a shared sense of existence (but see Deranty and Renault in this volume). ‘Postmodern’ agonism focuses on ‘contending identities’ or ‘opposing hegemonic projects’ rather than concrete individuals and their narcissistic urges (C onnolly 1991, 166; Mouffe 2005, 21). W hereas for the A ncients, the agon was predominantly understood and practised in personalistic idioms, for the contemporary proponents it designates mostly subject positions and relationships of collective identity formation. For instance, Honig (1995, 155) writes ‘agonistic feminism also departs from the implied individualism of Arendt’s pariah … The identities engaged by agonistic feminists are shared, public practices not merely markers of individual personalities.’ After the long-fought battles against the theo-philosophy of the subject and free will, this de-centring of ancient agonism and its disassociation from agonistic individualism should not come as a surprise. S econd, and quite predictably, the strong connotations of masculinity and the aesthetics of manliness are denounced and often replaced by an expressivist concept of agonistic subjectivity, with a much greater emphasis on playfulness, virtuosity, acting and gaming (Tully 1999; Huizinga 1950, 11). With the ‘postmoderns’, the actor comes to replace the athlete; the dancer and the flute-player supplant the wrestler and the boxer. Equally telling is the purge of the agon from its archaic and classical invocations of heroism. The ‘postmodern’ agon ‘does not usually take heroism’ (Connolly 2008, 209); it seeks to be post- or anti-heroic. It does

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not describe extraordinary acts and exceptional endeavours beyond measure. A nd although an aesthetical appreciation is still expressed in certain agonistic theories today, something their critics are always eager to point out, it is of an altogether different kind. Neither masculine nor martial, ‘postmodern’ agonism seems at times to indulge in the celebration of diversity, fluid identities and dissension. T hird, the concrete outcome of ancient contest, the telos of the agon – to win by defeating one’s opponents – is almost being displaced in favour of the more abstract notion of disruption, subversion, and perpetual contestation of existing power relations, fixed identities, and closed meanings. Here, the reason for this change could be the anti-teleological current in post-structural thinking, its critique of philosophies of history and its commitment to contingency and indeterminacy. W hereas in antiquity the political agon was intrinsically related to victory and success and as a type of performance it clearly consisted of instrumental and utilitarian significations, in contemporary theories agonism becomes conflated to pure performativity, independently of concrete outcomes. Fourth, the gains or benefits of agonism have also shifted. From a positive contest for greatness, glory and prominence, the agon is mostly converted into a reactive resistance against the negative and anti-political forces of rational consensus, deliberation, neutrality and abstract universalism, often associated to liberal normative discourses. T he broader agonistic effects of social admiration and praise are retrofitted and transformed into a struggle for inclusion, recognition and respect (C onnolly 1995b, note 40, 235). In certain cases, however, this transfiguration retains some of its past connotations, as for instance in Honig’s (1995, 159) suggestion for an alternative reading of ‘distinction’, which draws nearer to the Ancients: ‘The agonal passion for distinction, which so moved Arendt’s theoretical account, may also be read as a struggle for individuation, for emergence as a distinct self.’ T hese four moves away from ancient democratic agonism suggest a radical re-orientation toward questions of power and culture, identity formation and exclusion. W hat the anthropological narcissistic drive was for the ancients, identity and its exclusion are for the ‘postmoderns’. Hence, a key theoretical innovation of the ‘postmodern’ accounts is to have brought into attention the relevance of identity and difference to agonistic politics. A gonal democracy, in its various guises, addresses the possibility of constructing a relatively stable, plural and inclusive political order without generating sameness and an oppressive consensus, that is, without eradicating disagreement and contestation in the name of an over-assertive and universal good, it is still participatory and democratic. Politicization and conflict become the vital mechanisms of political inclusion and social integration in the face of pluralism and diversity. The ‘postmodern’ agon provides a relative solution to this predicament as the classical agon was a solution to the conundrum of narcissism and civic virtue, the tension between the drive for pre-eminence and the principle of equality. For contemporary approaches, exclusion represents the main threat to politics. Against this risk, agonistic contest is treated as a force that disturbs, relativizes and

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de-naturalizes the fixity of established identities, allowing for a more hospitable and inclusive attitude toward the other. Agonistic practices, it is argued, ‘challenge existing distributions of power, disrupt the hegemonic social, and proliferate political spaces when they interrupt the routine, predictability, and repetition on which … dominant patterns of private realm identity depend’ (Honig 1993b, 532; C onnolly 1991, 193, 200). Inclusion and respect for the other is the ultimate prize of this kind of agonism and democracy is praised for the space it creates within which a greater expression of identities is realized through their confrontational interactions. ‘Postmodern’ agonism, therefore, expresses the hope that the politicization of difference and the intensification of strife will foster inclusion, secure plurality, and safeguard differences (H onig 1993b, 532; C onnolly 2004, 510–11). In its strongest version, agonism cultivates an ethical respect for one’s opponent and keeps open the politics of renewal and augmentation. William Connolly expresses this faith better than anyone else, when he asserts that: in a democratic, pluralizing ethos, agents of enactment would exercise a certain forbearance in pressing their claims, and agents of reception would exercise a reciprocal generosity in responding to productions that disrupt what they are. T his agonistic reciprocity is the pathos of distance in politics. (C onnolly 1995b, 193; see also, C onnolly 2005, 123–8)

T his optimism is coupled by a clear normative orientation, shared by most agonistic theories today. Democratic agonism does not seek to describe real existing democracies but rather to point at a normative vision. D emocracy ought to be a permanent and open-ended contest among identities and particularities struggling over self-affirmation, recognition, inclusion, power distribution and the definition of collective meaning. If one probes deeper, one discovers that this normative ideal is derived from the fundamental value ascribed to the principle of the greatest inclusion of differences, which itself presupposes a particular ontology of life. Life is abundant, plural and rich and so should be the best political regime. T his celebration of otherness and the worth of its inclusion in the public realm is perhaps one of the most original aspects of contemporary agonistic theories compared to the A ncients. It is here that the departure from ancient democratic agonism becomes more poignant. I only can briefly clarify certain crucial points of divergence, in need of further elaboration elsewhere. The first pertains to a certain optimism of the ‘postmodern’ agonists that departs significantly from the pessimism that informed ancient agonistic culture. This discrepancy is due, I think, to the fact that contemporary theories have disassociated the agon from the logic of winning and losing, of victory and defeat, pain and agony. It is as if no one wins and, respectively, no one loses; or better, for the ‘postmoderns’ everybody wins. The experience of defeat is eliminated from the democratic agon and with it the feelings of shame and humiliation, stigmatization and inner exclusion which the ancient

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agon generated. A lso lost is the motivation for victory, with its symbolic pleasures, libidinal investment and civic rewards. Likewise, contemporary discourses on agonism, with the exception of Chantal Mouffe, have done away with the realistic attitude of the A ncients toward the inexorable presence of N arcissus in the human and the individual urge to distinguish oneself from others. It should be reminded that ancient democratic agonism was primarily a form of a necessary, pragmatic accommodation informed by a mythophilosophical anthropology. It was based on a descriptive understanding of human nature and for this reason it lacked the celebration of otherness that is so central to contemporary approaches. In fact, agonistic theories today assume that conflict will mostly be good and advantageous as they interconnect and bind rivals together and cultivate respect among contending identities. T his assumption, however, remains to be proven. What guarantees that conflict will make identities more receptive and respectful to otherness instead of inducing them to an existential entrenchment by closing up on themselves in an effort to defend their views, values, and ways of life, especially when they are confronted with more powerful identities? D isagreement and confrontation might as well accentuate differences by making collective identities better realize what they do not share with others and what unique beliefs and axiological world-views distinguish them from their opponents (W enman 2003, 172–4). A gonism could as well foster exclusion rather than inclusion. It is not clear, therefore, why conflict destabilizes and challenges the fixity of group identities, encouraging the inclusion of and respect for ethical and cultural differences. Politicization could lead to polarization, the polemization of political contests, to hostility and aggression, and finally to factionalization and violent dissolution (D eveaux 1999, 15; S chaap 2007, 68). T his precisely is what many thinkers and historians in the course of Western political theory perceived as the fatal cause of the decline of ancient democracies. For this reason the A ncients developed a complex institutional system, what I described as a counter-narcissistic legal apparatus, to contain the agony of agonism as they were worried about the destructive effects of the agon. The ‘postmoderns’ do not exhibit the same institutional imagination as they primarily share a positive view of political contest and public confrontation. H ence, an institutional and legal deficit is evident in their approaches. Adopting a rather abstract and normative discourse they tend to subordinate political reality and the intricacies of institutional design to philosophical speculation. A s a result, the institutionalization of agonal democracy remains an unfulfilled promise (Schaap 2007, 68–9). Finally, by eliminating Narcissus from the agon, ‘postmodern’ theories dispense with a theory of civic motivation like the one developed by the Ancients. Given the fact that the agonistic politics of confrontation and contestation might be quite demanding, arduous and sometimes painful, contemporary perspectives cannot account for those who might chose a more passive, peaceful, and tranquil nonpolitical life. Especially so, when ‘postmodern’ agonism endorses plural identities, which means, it accepts a plurality of cultural, ethical and religious groups, some

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which may not appreciate the political life of the agon as fitting to their particular world-views, values and beliefs. W ould then democratic agonism appeal to the superiority of a singular concept of the good, that of the agon, at the detriment of all those identities that opt for a non-agonistic, consensual, even private life (D eveaux 1999, 5; C onnolly 2008, 210)? W ithout the passions of the N arcissus and an appropriate institutional structure that drives individuals to compete and struggle for greatness by participating and accomplishing positive deeds for their political community, ‘postmodern’ theories of agonism face an important challenge: to reconcile the worth of the agon with a plurality of identities that may not be as sympathetic or inclined to confrontational and argumentative politics. These differences between the two kinds of democratic agonism, however, should not be overstated nor projected to the entire range of ‘postmodern’ agonistic theories. In fact, in one particular version the spirit of classical democratic agonism re-asserts itself, even if indirectly and reluctantly. H ere I have in mind C hantal Mouffe’s work, which stands apart from the other theories of agonism although it certainly shares certain central ontological and political attributes. Mouffe’s approach is predominantly pragmatic rather than normative or celebratory and here lies its core affinity with the Ancients and its disagreement with her contemporaries. T he value and merit of democratic agonism does not pertain merely to how inclusive it is or how many differences it incorporates into the public sphere. Instead, Mouffe recognizes the inexorable fact of exclusion and its necessary role in consolidating collective identities and political unity. C ontrary to other contemporary thinkers of democratic agonism, Mouffe (2005, 15–16) takes seriously the irreducibility of an outside that can neither be fully incorporated, eradicated or repressed. A nd since there is no objective, transcendental or rational ground to reconcile or overcome differences, antagonism remains ineradicable in political life, an everlasting presence and challenge to politics. For Mouffe, the main task of radical democracy is to allow agonism while taming and containing antagonism. Agonism is precisely what makes possible the conflictual character of politics without falling into a destructive war of all against all. By turning the enemy into an adversary and antagonism into agonism, democracy enables a regulated conflict among competing hegemonic projects to unfold while taming its disruptive and destructive tendencies (Mouffe 2005, 20): Envisaged from the point of view of ‘agonistic pluralism’, the aim of democratic politics is to construct the ‘them’ in such a way that is no longer perceived as an enemy to be destroyed but as an adversary, that is, somebody whose ideas we combat but whose right to defend those ideas we do not put into question. (Mouffe 2000, 102)

Mouffe’s agonistic democracy seeks to avoid both de-politicization and overpoliticization in an effort to keep political confrontation alive without being destroyed by it. T he agon, which occupies a middle position between deliberative models of rational consensus on the one hand and identity politics on the other, aims at deflating conflicts through inclusion and politicization but without erasing

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them. Reminiscent of the Ancients’ realism that the narcissistic passion to excel may engulf politics if left to its own devices, Mouffe’s (2005, 21) version is predicated on a similar prudential rule that ‘antagonistic conflicts are less likely to emerge as long as agonistic legitimate political channels for dissenting voices exist’ (but see Breen in this volume). In addition, by directly discussing the role and significance of passions and affects in politics, Mouffe moves closer to the A ncients with her psychoanalytically oriented approach that takes into consideration the libidinal forces of identification, reminiscent of the force of Narcissus. Agonistic democracy acknowledges the libidinal pleasure of identification while it seeks to curb its dangerous and violent impulses. ‘Understood in an agonistic way’, she claims, ‘democratic institutions can contribute to this disarming of the libidinal forces leading towards hostility which are always present in human societies’ (Mouffe 2005, 26). Without the good Eris (agonism/the adversary) there is only a bad Eris (antagonism/the enemy). Agonal plural democracy aims to transform conflict into a form of regulated public contest in order to avoid the eruption of violent antagonisms into politics. T hus, Mouffe’s pragmatic and realist theory of plural democracy, informed by a similar awareness of the threatening and unpredictable potentialities of the political, retains certain affinities with classical democratic agonism, mediating between Ancients and ‘postmoderns’. Acknowledgement I am particularly grateful to Andrew Schaap for making possible this chapter. His intellectual engagement with agonism has been a major inspiration for the present chapter. I also would like to thank for their insightful comments, suggestions, and criticisms Ian Hampsher-Monk, Dick Bernstein, Chantal Mouffe, Nadia Urbinati, Janet Coleman, Vassilis Lambropoulos, Nathalie Karagiannis, Peter Wagner, Banu Bargu, Jason Frank, Dick Howard, Ian Zuckerman, Hans Lindahl, David Owen, Nancy Fraser, Paulina Tambakaki, Emilios Christodoulidis and Ross Poole. Bibliography Antocides (1982), ‘On the Mysteries’, Minor Attic Orators: Antiphon, Andocides, Vol. I (C ambridge, MA : H arvard University Press). A rendt, H . (1958), The Human Condition (C hicago, IL: University of C hicago Press). A rendt, H . (2005), The Promise of Politics, ed. J. Kohn (New York: Schocken Books). A ristotle (1984), The Athenian Constitution, trans. P.J. Rhodes (Harmondsworth: Penguin). A ristotle (1998), The Politics, trans. E. Barker (Oxford: Oxford Classics).

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A ristotle (2000), Nicomachean Ethics, trans. R . C risp (C ambridge: C ambridge University Press). Bartsch, S . (2006), The Mirror of the Self: Sexuality, Self-Knowledge, and the Gaze in the Early Roman Empire (C hicago, IL: C hicago University Press). Bromberg, P.M. (1986), ‘The Mirror and the Mask: On Narcissism and Psychoanalytical Growth’ in A.P. Morrison (ed.) Essential Papers on Narcissism (New York: New York University Press). Brophy, R.H. (1978), ‘Deaths in the Pan-Hellenic Games: Arrachion and Creugas’, The American Journal of Philology 99:3, 363–90. Brophy, R. and M. Brophy (1985), ‘Deaths in the Pan-Hellenic Games II: All Combative Sports’, American Journal of Philology, 106:2, 171–98. Burckhardt, J. (1998), The Greeks and Greek Civilization, ed. O . Murray (N ew York: St. Martin’s Press). C icero, M.T . (1991), On Duties, eds M.T. Griffin and E.M. Atkins (Cambridge: C ambridge University Press). C onnolly, W .E. (1991), Identity/Difference: Democratic Negotiations of Political Paradox (Minneapolis, MN : University of Minnesota Press). Connolly, W.E. (1993), ‘Beyond Good and Evil: The Ethical Sensibility of Michel Foucault’, Political Theory 21:3, 365–89. Connolly, W.E. (1995a), ‘Twilight of the Idols’, Philosophy and Social Criticism 21:3, 127–38. C onnolly, W .E. (1995b), The Ethos of Pluralization (Minneapolis, MN : University of Minnesota Press). Connolly, W.E. (2004), ‘Response: Realizing Agonistic Respect’, American Academy of Religion 72:2, 507–11. C onnolly, W .E. (2005), Pluralism (Durham, NC: Duke University Press). Connolly, W.E. (2008), ‘Agonism, Pluralism, and Contemporary Capitalism: An Interview with William E. Connolly’, Contemporary Political Theory 7, 200– 219. Crowther, N.B. (1999), ‘Athlete as Warrior in the Ancient Greece Games: Some Reflections’, Nikephoros 12, 121–30. Deveaux, M. (1999), ‘Agonism and Pluralism’, Philosophy and Social Criticism 25:1, 1–22. Duchemin, J. (1945), L’Agon dans la tragédie grecque (Paris: Belles Lettres). Ellsworth, J.D. (1971), ‘Agon: Studies in the Use of a Word’, PhD dissertation, Berkeley, CA: University of California. Ellsworth, J.D. (1976), ‘Agonios, Agonarchos, Agonisterion: Three Words Allegedly Formed from Agon, “Assembly”’, Transactions of the American Philological Association 106, 101–11. Elsner, J. (2007), Roman Eyes: Visuality and Subjectivity in Art and Text (Princeton, NJ: Princeton University Press). Evjen, H.D. (1986), ‘Competitive Athletics in Ancient Greece: The Search for Origins and Influences’, Opuscula Altheniensia 16, 51–6.

38

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Evjen, H.D. (1992), ‘The Origins and Functions of Formal Athletic Competition in the Ancient World’ in W. Coulson and H. Kyrieleis (eds) Proceedings of an International Symposium on the Olympic Games (A thens). Ford, F.L. (1985), Political Murder: From Tyrannicide to Political Terrorism (C ambridge, MA : H arvard University Press). Forsdyke, S. (2005), Exile, Ostracism, and Democracy: The Politics of Expulsion in Ancient Greece (Princeton, NJ: Princeton University Press). Foucault, M. (1983), ‘Afterword: The Subject and Power’ in Michel Foucault: Beyond Structuralism and Hermeneutics, ed. H .L. D reyfus (C hicago, IL: University of C hicago Press). Freud, S. (1966), ‘The Libido Theory and Narcissism’ in Introductory Lectures on Psychoanalysis, ed. and trans. J. Strachey (New York: W.W. Norton). Freud, S. (1986), ‘On Narcissism: An Introduction,’ in A.P. Morrison (ed.) Essential Papers on Narcissism (New York: New York University Press). Freud, S . (2006), Three Essays on the Theory of Sexuality (New York: Basic Books). Frontisi-Ducroux, F. and J-P. Vernant (1997) Dans l’oeuil du mirroir (Paris: O dile Jacob). G olden, M. (1998), Sport and Society in Ancient Greece (C ambridge: C ambridge University Press). G umbrecht, H .U. (2006), In Praise of Athletic Beauty (C ambridge, MA : T he Belknap Press of Harvard University Press). Hawhee, D. (2002), ‘Agonism and Arete’, Philosophy and Rhetoric 35:3, 185– 207. Hawhee, D (2005), ‘Contesting Virtuosity: Agonism and the Production of Arete’ in Bodily Arts: Rhetoric and Athletics in Ancient Greece (A ustin, T X: University of T exas Press). H eidegger, M. (1992), Parmenides (Bloomington, IN : Indiana University Press). H esiod (1999), Theogeny, Works and Days, trans. M.L. W est (O xford: O xford C lassics). Hoberman, J. (1997), ‘The Sportive Agon in Ancient and Modern Times’ in J. Lungstrum and E. S auer (eds) Agonistics: Arenas of Creative Contest (N ew York: State University of New York). H omer (2003), The Iliad, trans. E.V. R ieu (H armondsworth: Penguin). H onig, B. (1993a), Political Theory and the Displacement of Politics (Ithaca, N Y: C ornell University Press). Honig, B. (1993b), ‘The Politics of Agonism: A Critical Response to “Beyond G ood and Evil: A rendt, N ietzsche, and the A estheticization of Political A ction” by Dana R. Villa’, Political Theory 21:3, 528–33. Honig, B. (1995), ‘Toward an Agonistic Feminism: Hannah Arendt and the Politics of Identity’ and ‘Afterword: Agonism Versus Associationism?’ in B. H onig (ed.) Feminist Interpretations of Hannah Arendt (Pennsylvania, PA : Pennsylvania S tate University).

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39

Huizinga, J. (1950), Homo Ludens: A Study of the Play Element in Culture (Boston, MA : T he Beacon Press). Jaiszi, O. and J.D. Lewis (1957), Against the Tyrant: the Tradition and Theory of Tyrannicide (G lencoe, IL: Free Press). Johnstone, C. L. (2006), ‘Sophistical Wisdom: Politikê Arête and “Logosophia”’, Philosophy and Rhetoric 39:4, 265–89. Kalyvas, A. and I. Katznelson (2008), ‘Agonistic Liberalism: Adam Ferguson on Modern Commercial Society and the Limits of Classical Republicanism’ in Liberal Beginnings: Making a Republic for the Moderns (C ambridge: C ambridge University Press). Kyle, Donald G. (1997), ‘The First Hundred Olympiads: A Process of Decline or Democratization?’ Nikephoros 10, 53–76. Knops, A. (2007), ‘Agonism as Deliberation – On Mouffe’s Theory of Democracy’, The Journal of Political Philosophy 15:1, 115–26. Lacan, J. (2002), ‘The Mirror State as Formative of the I Function as R evealed in Psychoanalytic Experience’ in Écrits. A Selection, trans. B. Fink (New York: W .W . N orton). Lee, H.M. (1998), ‘The Ancient Olympic Games: Origins, Evolution, Revolution’, Classical Bulletin 74, 129–41. Lucian (1996), ‘Tyrannicide,’ Lucian. Volume I (C ambridge, MA : H arvard University Press). Lungstrum, J. and Sauer, E. (1997), ‘Creative Agonistics: An Introduction’ in J. Lungstrum and E. S auer (eds) Agonistics: Arenas of Creative Contest (N ew York: State University of New York). Lyotard, J-F. (1984), The Postmodern Condition: A Report on Knowledge (Minneapolis, MN : University of Minnesota Press). Lyotard, J-F. and J-L. Thebaud (1985), Just Gaming (Minneapolis, MN : University of Minnesota Press). Lysias (1988), Against Eratosthenes in Lysias, trans. W .R .M. Lamb (C ambridge, MA : Loeb C lassical Library). Miller, S .G . (2004a), Ancient Greek Athletics (N ew H aven, CT : Yale University Press). Miller, S .G . (2004b), Arete: Greek Sports from Ancient Sources (Berkeley, CA: University of C alifornia Press). Meritt, B.D. (1952), ‘Greek Inscriptions: Anti-tyrannical Inscription,’ Hesperia, 21, 355–9. Mouffe, C. (1992), ‘Democratic Citizenship and the Political Community’, Directions of Radical Democracy in C . Mouffe (ed.) Pluralism, Citizenship, Community (London: Verso). Mouffe, C. (1996a), ‘On the Itineraries of Democracy: an Interview with Chantal Mouffe’, Studies in Political Economy 49, 131–48. Mouffe, C. (1996b), ‘Democracy, Power, and the “Political”’ in S. Benhabib (ed.) Democracy and Difference: Contesting the Boundaries of the Political (Princeton, NJ: Princeton University Press).

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Mouffe, C. (2000), ‘For an Agonistic Model of Democracy’ in The Democratic Paradox (London: Verso). Mouffe, C . (2005), On the Political (London: R outledge). Nietzsche, F. (1994), ‘Homer on Competition’ in On the Genealogy of Morals, ed. K. A nsell-Pearson (C ambridge: C ambridge University Press). Nouvet, C. (1991), ‘An Impossible Response: The Disaster of Narcissus’, Yale French Studies 79, 103–34. Ostwald, M. (1955), ‘Athenian Legislation against Tyranny and Subversion’, Transactions of the American Philological Association, 86, 110–28. O vid (2004), Metamorphoses, trans. D . R aeburn (H armondsworth: Penguin). O’Sullivan, P. (2004), ‘Victory Song, Victory Statue: Pindar’s Agonistic Imagery and Its Legacy’ in D. Phillips and D. Pritchard (eds) Sport and Festival in the Ancient Greek (S wansea: C lassical Press of W ales). Pausanias (1935), Descriptions of Greece, ed. R .E. W ycherley (C ambridge, MA : Loeb C lassical Library). Philostratus, F. (1931), ‘Imagines’ in Philostratus: Imagines. Callistratus: Descriptiones, trans. A. Fairbanks (London: Heinemann). Photius (1994), The Bibliotheca, trans. N.G. Wilson (London: Duckworth). Pindar (1997), Olympian Odes, Pythian Odes (C ambridge, MA : Loeb C lassical Library). Plotinus (1991), The Enneads, abridged edition, trans. S . MacKenna (H armondsworth: Penguin). Plutarch (1997), ‘Table-Talk’ in Moralia vol. 5, trans. F.C . Babbit (C ambridge, MA : Loeb C lassical Library). Podlecki, A.J. (1966), ‘The Political Significance of Athenian “Tyrannicide” Cult’, Historia 15:2, 129–41. Polakioff, M.B. (1987), Combat Sports in the Ancient World: Competition, Violence, and Culture (N ew H aven: Yale University Press). Polybius (1979), The Histories, trans. W .R . Paton (C ambridge, MA : Loeb C lassical Library). Pulver, S.E. (1986), ‘Narcissism: The Term and the Concept’ in A.P. Morrison (ed.) Essential Papers on Narcissism (New York: New York University Press). Rousseau, J-J, (1997), ‘The Social Contract’ in ‘The Social Contract’ and Other Political Writings, ed. V. G ourevitch (C ambridge: C ambridge University Press). Russo, R. (2002), ‘A Natural History of “Agonist”’, Perspectives in Biology and Medicine 45:3, 350–8. S ansone, D . (1988), Greek Athletics and the Genesis of Sport (Berkeley, CA: University of C alifornia Press). Sax, B.C. (1997), ‘Cultural Agonistics: Nietzsche, the Greeks, Eternal Recurrence’ in J. Lungstrum and E. Sauer (eds.) Agonistics: Arenas of Creative Contest (New York: State University of New York). Scanlon, T.F. (1983), ‘The Vocabulary of Competition: Agon and Aethlos, Greek Terms for Contest,’ Arete 1:1, 147–62.

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S canlon, T .F. (2002), Eros and Greek Athletics (O xford: O xford University Press). Schaap, A. (2007), ‘Political Theory and the Agony of Politics’, Political Studies Review 5:1, 56–74. Schultz, K. (1994), ‘In Defence of Narcissus: Lou Andreas-Salomé and Julia Kristeva’, The German Quarterly, 67:2, 185–96. S chmitt, C . (2007), The Concept of the Political (C hicago, IL: University of C hicago Press). Schrift, A.D. (2001), ‘Nietzschean Agonism and the Subject of Radical Democracy’, Philosophy Today 45, 153–63. Steiner, D. (1998) ‘Moving Images: Fifth-Century Victory Monuments and the Athlete’s Allure,’ Classical Antiquity 17, 123–49. T aylor, M.W . (1992), The Tyrant Slayers: The Heroic Image in the Fifth Century B.C. Athenian Art and Politics (Manchester: A yer). Thiele, L.P. (1990), ‘The Agony of Politics: The Nietzschean Roots of Foucault’s Politics’, American Political Science Review 84:3, 907–25. T hucydides (1974), History of the Peloponnesian War (H armondsworth: Penguin). Tully, J. (1999), ‘The Agonic Freedom of Citizens’, Economy and Society, 28:2, 166–9. Vinge, L. (1967) The Narcissus Theme in Western European Literature up to the Early 19th Century (Lund: G leerup). Wenman, M. (2003), ‘“Agonistic Pluralism” and Three Archetypal Forms of Politics’, Contemporary Political Theory 2, 165–86.

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C hapter 2

D emocratic A gon: S triving for D istinction or S truggle against D omination and Injustice? Jean-Philippe Deranty and Emmanuel Renault

In recent years, many theorists have sought to appropriate an agonistic conception of politics from A rendt as a way to thematize the possibility of transforming reductive social identities (e.g. Honig 1995; Tully 1999; Markell 2003). On this account agonistic politics concerns the ‘striving for distinction’ (that is the competition amongst equals to define and implement the common good). The virtue of this approach is that it redeems the very name of politics in an age of utter political cynicism. First, because it restores the notion of politics as true transformative action. But also because Arendt’s insistence on the equality of those who take part in politics immediately translates into a critique of oppressive social identities. And finally, because she shows how political participation provides the opportunity to develop a true self, that is a self emancipated from such identities. H owever, this approach treats political participation as the solution to problems which in fact are the very obstacles that make political participation problematic in the first place. Is political participation threatened solely by the destruction of the political sphere (in particular by totalitarian forces, as in Arendt’s diagnosis)? Or is there not another factor just as significant, namely exclusion from politics? Exclusion from politics is a real phenomenon with its specific causes and impacts. Its causes have to do with a twofold political and social process, a process that can be characterized as a process of alienation in the exact sense of a loss of self (of one’s power of acting) and a loss of world. The political dimension of that process is well characterized in the terms under which Marx understood political alienation: when the political public space is no longer able to represent the different aspects of the social question, it appears more and more as a foreign space to those who are stuck in that question. But there are also decisive social factors in political exclusion: in particular, when individuals are caught up in forms of social exclusion, it becomes increasingly difficult for them to access positions where their claims will be deemed to be legitimate; moreover, they then tend to attribute to themselves the responsibility of the social injustice they suffer; in the end, social exclusion leads to loneliness and loss of world, in other words, to social alienation. A rendt (1958) criticizes Marx for having conceptualized alienation as loss of self rather than as loss of world. H owever, the Marxian concept of alienation emphasizes precisely the imbrication of the two processes (see Jaeggi

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1997; 2005), as well as the imbrications of political and social alienation (see H aber 2006; 2007). A ll this points to the fact that exclusion from politics is one of the crucial questions of politics. However, if one takes seriously this issue of the obstacles to political participation, then suddenly a whole series of problems become central to political theory: notably, the politicization of social experience; the modalities of struggles against political and social alienation, and against their potential reciprocal reinforcement. We argue that there is an ‘aristocratic’ strand in Arendt’s conception of politics which prevents her from taking the full measure of these problems. Against understanding agonistic politics in Arendt’s terms, we argue that democratic agonism is inherently antagonistic in so far as it entails a struggle against all the factors responsible for political exclusion. R ather than viewing equality as just an unthematized condition of possibility of agonistic politics, we should define democratic agonism as the effort to realize equality in conditions of social inequality, through the transformation of institutions and the confrontation with the law. Aristocratic Assumptions in the Distinction Model A rendt offers the most sophisticated demonstration of the importance of participation in collective action, as well as an analysis of the conditions of that participation. Moreover, she also offers substantive arguments to diagnose the destruction of politics by systemic forces (the increasing power of economic forces, the rise of consumerism, and so on). N evertheless, the problem of political exclusion does not seem to be an A rendtian problem, or rather, it seems to be one of the problems she denies is a decisive one. Arendt’s interest is directed towards the nature of political action and its importance for the human subject; it is not concerned with the conditions of access to political action. In A ristotelian manner she interprets political action as the actualization of a way of life (A rendt 1958, 12–13). Political action for her represents a kind of human destiny that each individual is potentially able to realize. Beside this Aristotelian streak, there is an undeniable existentialist element that just as powerfully influences her understanding of politics: political action is a revelation of the self to itself, and the only guarantee of meaning for a human subject always under the threat of the absurdity of the human condition. However, as in many existentialists and neo-Aristotelians, Arendt’s vision of politics as authentic way of life also comes with a serious lack of consideration for the fact that social situations can render politics impossible or meaningless for entire groups of individuals. It is in that context that one could talk of the danger of a certain ‘aristocratism’ in Arendt’s political thinking. This aspect of her thought first comes to the fore as a tone of voice, a strikingly harsh, unsympathetic and contemptuous tone, whenever she describes the situation of populations who are excluded from politics as a result of their social situation. Because political action is the only way for humans to

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access and express their truly human powers, all the multitudes mired in the tasks of social reproduction or tied to the necessities of survival fail to quite reach the full status of humanity. The extreme example of this are the ‘pariahs’, who, being utterly ‘worldless’, live in a condition of ‘barbarism’ (Arendt 1968, 13; Arendt 1966, 301–302). But it is also the example of the ‘multitudes’ of past revolutions, the ‘immense majority’ invading the ‘space and light’ of the public realm populated by those ‘who were free’, the multitude of those ‘who are not free because they are driven by daily needs’ (Arendt 1965, 48). T here are many passages where the ‘wretched’, the ‘downtrodden’ are described in similar unflattering terms. From the perspective of political sociology, Arendt’s negative descriptions of the ‘obscure’ and the ‘invisible’ might well be accurate. Indeed one could use Arendt’s analyses to emphasize the dehumanizing effects of misery in general, its capacity to sever an individual from the world, and more specifically from the community. Misery leads to a loss of faith in politics, as well as to perverted forms of political action, where it becomes confused with criminality, violence or indeed religion (see D ejours 1998; C orten 2000). O ne could thus well argue that one of Arendt’s great merits is to introduce in political sociology a whole series of concerns and arguments, which all point to the debilitating effects of social suffering (see Wilkinson 2005). There is a sense, however, that a sociological redemption of these harsh passages cannot be fully accurate, since it is in politics that Arendt is interested, not the social conditions that make it possible. As a result, one is often left with the impression that, when she acknowledges the scope of the social problems that form the dark side of democratic politics, Arendt is more or less happy to leave the wretched to their fate as she rejects any notion that it could be the role of political action to try to alleviate their suffering or to address their needs and their wants. Arendt’s (1965, 112–14) notion that there can be no political treatment to misery and poverty has implications beyond the attempt to preserve the purity of politics from the demands of the social (Pitkin 1981; Bernstein 1986). It implies also that there is nothing to be done about ‘necessity’, that one must simply accept, as a fact of the human condition, that many will have to be devoted to its service. Indeed, this is entailed in the very logic of the ontological separation of the spheres of labour, work and action: those who engage in the space of ‘appearances’ cannot, by definition, be the same as those who labour and work. However, since even ‘the free’ have bodily needs that demand to be fulfilled and since their free actions can achieve permanence and survive in the world only through the products of work, the only solution is for some to labour and to work so that the free can act and be free. In other words, it is difficult to totally combat the impression that for Arendt politics is exceptional not just because it is rare, but also because it is the preserve of exceptional people, and that it is therefore just that others should work at their service. On that reading, the distinction between plurality and the condition of ‘the   Indeed, the tone is more sympathetic in the pages devoted to the worker movement in The Human Condition.

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multitude’ (who are multiple only in a numerical sense, but form a united mass) does not so much signal a conceptual distinction as it marks the real boundary between two humanities, the free and the not-free. Most of the contemporary theorists who want to operate with an A rendtian model acknowledge that her strict separation of the social and the political is highly problematic, since it prohibits a political challenge to the structures of domination operating in the social, whether these are gender-, race- or class-based (e.g. H onig 1995). On the other hand, it is precisely this separation that is the key to Arendtian politics, because it is this separation which makes politics independent of, and conflicting with, socially defined identity. Most contemporary Arendtians choose to be inspired by her precisely for that reason. A ccordingly their strategy is to use her model in a non-literal way and to emphasize the potentialities her model of politics opens up for thinking of politics not as a way of life but rather as the instance where ways of life defined by social situations are dissolved, in a sense therefore that would be quite close to R ancière (Ingram 2006). The problem with such readings is that they don’t pay sufficient attention to the aristocratic assumptions hidden in the A rendtian model. T he crucial issue concerns the problematic link between social life and political life. It is not sufficient to claim that all one needs to do is overlook her theoretical prohibitions and simply apply her model of politics to the spheres in which she thought politics would be negated. This is selling one’s theoretical cake and eating it too. It is simply impossible within the A rendtian paradigm to focus with the required degree of intensity on what constitutes the central issues of politics: how politics can be defined as the challenge to the exclusion from politics, first in a narrow sense, but also, and more fundamentally, as a challenge to the realities of social life in which those exclusions are rooted. S uch a perspective requires precisely homing in on what an A rendtian rejects as anti-political: the social processes of political exclusion – and the processes of politicization that also start within social life. For example, what is required if one is serious about political participation as a constitutive question of politics, is to see how political action can be defined as a reflective action that can originate precisely in ways of life that would appear, on an A rendtian account, to deny it, i.e. in situations of poverty and misery. S ituations of social injustice can give rise to genuine political action because the experience of injustice induces practical reactions (of refusal, flight or adaptation), as well as cognitive reactions (in the shape of reflective returns on disappointed expectations; a critical perception of the social rules that allow injustice to occur; the attempt at   In this article, we often relate the arguments to Rancière’s positions. This is because Rancière’s political writings are decisive for debates on democratic agonism, as is demonstrated by the increasing number of references to his work in contemporary political theory. Rancière’s theses are now often used in tandem with Arendtian arguments (despite Rancière’s consistent criticisms). We question the plausibility of such an alliance. In any case, his theses indeed provide a robust alternative model to other versions of democratic agonism.

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revendication, and so on) (Renault 2004a; Renault 2005). If one takes such dynamics into consideration, the effects of misery and poverty might appear as obstacles to processes of politicization, but certainly not as conditions that would be essentially incompatible with political action. T hat perspective in fact enables us to see that the effects of misery and poverty can in fact play two opposite roles: that of obstacles, for sure, but conversely also that of incentives, to overcome these obstacles. T he effects of poverty and misery can become proper factors of politics inasmuch as they favour the development of specific forms of political action, aiming for specific forms of emancipation. This is quite exactly the inspiration behind Rancière’s writings: to undo the division between those who speak and those who labour and work, thus to rescue the ‘nights’ of the proletarians; to restage their ‘scenes’ and show that, despite the abjection of their condition and the debilitating aspects of their work, they were more than barbarians, more than just half-men ‘driven by their daily needs’; indeed that their speech and actions were the closest to what politics in fact is about, namely a contestation of the boundaries between the free and the non-free, and in particular, a contestation of the exclusion from politics of the question of that boundary. Incidentally, this is also quite close to the inspiration at the heart of A xel Honneth’s (1995) theory of recognition (see Deranty 2004). Insisting on the crucial conceptual difference between necessity and obstacle and on the zone between obstacle and incentive requires us to contest two of the most decisive premises of A rendtian politics: its underlying theory of the subject; and the definition of politics itself. The strength of Arendt’s political philosophy stems from the articulation she establishes between a political anthropology and a political ontology. We think it is legitimate to relate politics to anthropology, but the one propounded by A rendt seems to us to be faulty on at least two important fronts: first because of its essentialism, with the idea of ways of life. Second because it is basically unrealistic; as we will attempt to briefly argue below, it is not sufficiently differentiated to be able to analyse political action. Moreover, it seems to us that a definition of politics from the perspective of collective action in public space should lead to a definition of politics in terms of process rather than through the definition of an essence. As a result, two critical operations need to be put in place: the reformulation of A rendtian politics via an alternative anthropology and a redefinition of the political insisting on its processual aspect. Political Anthropology H ere, two questions deserve special attention: the question of identity and that of the actions of the subject of politics. Social and economic life locks individuals into rigid identities and only politics allows the subject to develop a true singularity. In recent years, it is probably this argument that has been the focal point behind the return to A rendt as the most powerful alternative to liberalism. It has been embraced of course by theorists inspired by post-structuralism, but also by others, like Markell, who simply admire Arendt’s ‘non sovereign’, that is, truly democratic

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and ‘liberal’, models of identity and politics (Markell 2003). The major objection against such constructs is that they take too simple a view of the weight of the identity question in politics. It seems impossible to deny that many political problems arise from the existence of forms of power and from inequalities that are directly linked to class-, gender- and race-identities. Equally, it seems difficult to deny that the inequalities and forms of power relating to forms of identity can bring individuals to develop forms of political reflexivity that can be characterized as forms of politicization of identity: there are different types of politicization of identity (R enault 2004b). T he exact political problem about identity is not the deconstruction of identities in general, but the deconstruction of social identities, and more precisely of the particular identities where the production and reproduction of oppression are at play. T he problem is not a metaphysical problem hidden in the notion of identity, but a strictly political problem linked to the social frames in which forms of domination are created and entrenched, and more specifically to the incarnations of domination in institutional apparatuses where socialization is embedded. Indeed if one is serious about the reality of domination, then the solution is not the destruction of particular oppressive identities, but rather their transformation, or, to be more precise, the transformation of the forms of internalization and incorporation of dominations, and of the institutional frames of social experience in which they are reproduced. The dualisms in Arendt’s politics also affect her theory of action. Firstly, any realistic theory of action must take the subject of action in terms of biographical and social destiny. Acting subjects are always ‘heavy with identity’, an identity that is a biographical and social construct. The categories of ‘singularity’ or ‘unicity’, which underpin Arendt’s insistence on the ‘multiplicity’ of truly human humanity, are too abstract in that regard. Individuals enter collective action, including political action, on the basis of an identity that is constructed in social experience. S econdly, any realistic theory of action should consider the subject of action as a body as much as a speaking being. T he dynamics of action arise mainly from the actualization of corporeal dispositions, even if interaction also presupposes communicative relations that are mediated by language. C onsequently, action is governed by the structures of corporeal dispositions and embodied practical logics much more so than by any representations or consciously formulated principles. Indeed it is generally only when the spontaneous unfolding of action encounters obstacles and difficulties that action becomes thematized, its underlying principles are made explicit, and potentially become the object of a deliberation (see Mead 1967).

  For A rendt, we are all similar from the point of view of our embodied existence, and become individualized only through our symbolic actions. T his is a strange conception of human embodiment, in any case a rather doubtful dualistic conception of the human person.

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If, as Arendt argues, politics needs to be defined as the unfolding of a specific type of action, its characteristic should be found in the dynamics that characterize the human body (its forces, its needs, its acquired skills and, crucially, the social practices that have been implanted in it), and in the identities of the acting subjects, in the descriptions of ‘what’ we are and ‘what’ we are worth, and the projects of ‘who’ we want to be. All this is not necessarily opposed to, indeed can be well reconciled with, key characteristics of politics, notably, the fact that it transcends bodily necessity and social automatism, as well as its being oriented by principles. T hese features can be shown to arise from the very dynamics of action, that is, from the constraints of social experience, which reorient collective action in reflexive and critical processes. In other words, the ‘transcendence’ that politics represents in relation to biological and social life should be construed in processual and dialectical, not in essentialist and dualistic terms (A rendt 1977, 151f.). With an Arendtian model, this type of anthropological clarification of political action is excluded on two accounts: as a result first of all of the opposition of necessity and social automatisms versus the spontaneity of political freedom, the opposition of ‘what I am’ in biological and social life and ‘who’ I am revealing myself to be in action; and secondly because of the definition of politics as action inspired by transcending principles in a space where speech amongst equals is exchanged. In the end, Arendt’s political anthropology amounts to a definition of the human from the perspective of politics, and does not really take into account the full extent and specificity of an anthropological questioning. It is as if an abstract definition of the essence of politics as ‘beginning’ and ‘creation’ led subsequently to the construction of an ad hoc anthropology based on the opposition of work and action, of needs and freedom, of body and speech. Instead of an unrealistic anthropology on the basis of some essential features of politics, the more promising philosophical challenge would be to approach the issue the other way around, namely to try and think the capacity of politics to create the new, as well as the irreducibility of political problems to private preoccupations and biological, biographical and social constraints, from a more realistic anthropology, one that fully acknowledges the importance of identity and embodiment for subjects in action. Political Ontology Despite all the efforts to appropriate Arendt for a ‘non-essentialist’ approach to politics (e.g. Tully 1999), her political theory must really be called ‘essentialist’ since it is primarily organized around the question ‘what is politics?’ and answers that question by formulating a number of fundamental predicates, which were fully actualized only in the world of A ncient G reece. Even if A rendt could be said to have developed an account of the political as ‘event’ rather than as an essence (Balibar 2007), it is from the point of view of a set of essential predicates that particular events are identified as ‘a complete political experience’ (Arendt 1993, fragment 3b, sec.1). A nd even if A rendt generally approaches the question of

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politics from the perspective of its ‘meaning’, and even if that meaning relates to a form of freedom that is to be ‘experienced in the course of action’ (Arendt 1977, 165f.), the answer relies undoubtedly on the identification of essential properties, rather than a set of practical processes (R ancière 2006; D eranty 2007). T he essential predicates that determine the presence, or not, of politics are well known. The first is the essential link between politics and freedom. Freedom, Arendt (1977: 143–51) says, is the ‘ratio essendi’, the real legitimation of politics. By freedom, she understands not an internal experience characteristic of the will, but the archein, the power to start and to command, a power that can be asserted only in the intermediary space that is created between humans when they come together. T his freedom is the freedom that guides the only true form of acting, the ontological marker of human beings, their capacity to spontaneously commence something new, and extract themselves from necessity and social automatism. It is action in the noble sense of the term, out of concern for the world, for the good of the community, to create a common history, and thereby to discover who one is. T he second essential feature of politics for A rendt is the emergence of a public space in which freedom can appear and thrive (A rendt 1977). Political, public space is characterized by two features: isonomy and agōn. Isonomy, the equality of the participants, is a necessary condition for a true exchange in the public space; it is the condition of authentic speech and authentic reception. Agōn, the struggle for distinction amongst the equal and the free, is the second necessary feature of the political stage. It is on the basis of this definition of the essential attributes of politics that A rendt can then identify the factors that threaten to destroy politics and prohibit its full actualization. Foremost amongst those factors are attempts to ground politics in human needs. N eeds are destructive of politics for her because they originate in the body, and thus belong to that part of human existence that cannot be communicated. N o human, that is, political, community can be built on the community of needs (see S chaap forthcoming). O ther factors that destroy politics are those premised on the confusion between the world of ‘poiesis’, the worlds of production and work, and ‘praxis’, the sphere of real action as exchange and struggle for distinction amongst equals. As soon as one operates with such a definition of the essence of politics, and the ontological boundaries it immediately creates, participation in politics is envisaged in such a way that it becomes simply impossible to properly articulate the issue of exclusion from it, and in particular to consider any political solution to it. T o recall the introduction, with exclusion from politics, we have a twofold phenomenon in sight: first, the fact that specific problems, which amount to a questioning and possibly a negating of the existing state of a social order, are not recognized as legitimate questions in the public space, and are thus subjected to a form of invisibilization (for example, problems linked to gender, to work or to social status); secondly, the fact that the social and psychological resources that are necessary to engage in political action can be lacking precisely because of the effects of processes that are typical of the social question. By contrast, if one

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interprets the distinction of the private and the public as an ontological distinction rather than a construction that can always be displaced by political action, and if one dualistically opposes the visibility of the public sphere to the obscurity of the social, then any struggle that aims to challenge the exclusion of specific problems from politics necessarily amounts to a destruction of politics. T his problem concerns not just the general prohibition of a political treatment of social questions, but also more specifically the problem of individual participation in political action. Because of her radical ontological separation of the public and the private, Arendt constructs the passage from ‘non-political’ to ‘political’ action in ethical categories, in terms of ‘courage’, and in metaphysical categories, as the ‘infinite improbability’ of a ‘miracle’ and of the ‘event’ (Arendt 1967, 151–6, 165–71). But this leaves no room for an analysis of the social and psychological processes that block that liberating passage, and thus for an analysis of what would be entailed, politically, for their transformation. N ot only does the question of political exclusion disappear from view as a problem, but it is no longer possible to account for the processes of politicization themselves, and especially to the political dimensions of these processes. S uch processes, however, are not just psychological or sociological appendages and, as such, external adjuncts to the more noble question of politics. Much of what politics is about is best defined through the lens of politicization: the factors that prevent it (affiliations, exclusions, work, social status, and so on); the vectors of collective action (bodily dispositions, social groups, institutional opportunities); and the concrete objects of political reflexivity (needs, domination, inequalities) (see Renault 2008). Democratic Antagonism W hat image of the democratic agon emerges from a focus on political participation and exclusion? First, the meaning of equality is transfigured. Equality needs to designate more than just the de facto situation of those involved in politics, which, as we saw, on a literal reading of Arendt at least, can coexist with significant inequality, an inequality which, in any case, cannot itself become the object of politics. Equality needs to become an imperative, a contested claim of politics itself, indeed perhaps the main object of politics, not just an implicit necessary condition of it. If one blurs this fundamental distinction between an implicit, unthematized condition and the explicit, controversial, contested object of political action itself, one goes past a number of fundamental implications. A good example is provided by the interpretation of historical social movements, and notably of past revolutions, especially of the French R evolution – the paradigm of a social movement guided by the ‘social question’. Arendt either completely rejects historical social movements, on the basis that they destroyed politics because they were based on the pursuit of happiness rather than freedom (French R evolution), or gives highly circumspect appraisals of them (labour movement), bemoaning their confusion between the real political element (the

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demand for political participation) versus the detrimental social element. In all cases, she denies that the struggles against social inequality and social injustice could have had any true political import; indeed, she argues they to a lesser (labour movement) or greater extent (French R evolution) had pernicious dimensions, which contributed to the contemporary destruction of politics. By contrast, if one sees in the struggle against the social causes of political exclusion one of the main dimensions of politics, the aims and achievements of past social movements, and of past historical agents, are seen in a much more positive light. T his shift in historical interpretation has important conceptual repercussions. It entails a shift from static definitions of equality as ‘isonomia’ and essentialist definitions of liberty as ‘raison d’être’ of the political, to abolitionist conceptions of freedom and equality. Following W alzer (1983), it is important to insist that all the main political concepts are abolitionist in the sense that they do not define the positive content of a norm, but express types of claims made against the current state of affairs (lack of liberty or of equality for instance). The problems raised by political exclusion point to the fact that lack of liberty and inequality are interrelated, and that the very concepts of liberty and equality entail struggles against their (political and social) obstacles. Evidently, understanding political action as the abolition of injustice significantly alters the perspective on social suffering and its role in politics. A rendt strenuously rejects any political validity, indeed condemns as anti-political any attempt to link politics to the abolition of suffering. For her, when social subjects pretend to make political claims on the basis of their suffering, we have the premises of totalitarianism (because life, not freedom, comes on stage), and any political action inspired by the suffering of others is equally misguided. T he negative lesson of the French R evolution, which was inspired by the suffering of the masses, is the dangerousness and perversity of a politics of social suffering. In contrast, in a famous passage of Men in Dark Times, A rendt promotes instead a ‘politics of joy’: In judging these affects, we can scarcely help raising the question of selflessness, or rather the question of openness to others, which in fact is the precondition for ‘humanity’ in every sense of that word. It seems evident that sharing joy is absolutely superior in this respect to sharing suffering. (A rendt 1968, 15)

If, however, politics is best characterized in terms of the dynamics of politicization, then the perspective is dramatically altered. A gain, a detour through the anthropological perspective is very eloquent. A realistic anthropology of action suggests that the dynamism of action always entails a mixture of activity and passivity, and that in that passivity some suffering is involved. Indeed Arendt’s 1958: 188–91) own reflections on action indicate so much. A s soon as one  In this passage of The Human Condition, action receives a much broader sense; indeed, Arendt defines action precisely as the breaking of boundaries. This makes it difficult

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thinks of politics in dynamic, processual terms, it becomes clear that suffering is not important solely for the aim it defines (even though the struggle against suffering is decisive to combat political exclusion), but also because of the movement it initiates, one that can very well be initially inspired by negative feelings feeding on one’s own suffering or the suffering of others – affects like rage, anger or indignation. Indeed, the meaning of courage as a political affect needs to be re-evaluated from that point of view. C ourage can no longer be reduced to the refusal of being merely a living being and the choice of being in competition with others for distinction, as A rendt sees it. C ourage, as a politically significant affect, can also be the courage to face one’s own suffering: first to acknowledge it as being socially caused and, second, to strive to transform the social conditions that cause it (Bourdieu 1999; Kleinman et al. 1997). T his is the courage demanded of many today: to face one’s own suffering and the social conditions it betrays, rather than simply adapting to it (to attribute to oneself the responsibility for it, or to repress it); the courage to say no to domination and to the social routines that entrench it. As soon as one thinks of politics in processual terms, one can also see that the negative affects that are often at the origin of politics in no way forbid a form of joy, once action has been organized. T his is true not just because of the dynamism inherent in action itself, the incontrovertible joy of action, but also because of the results of the dynamics of politicization through which individuals extract themselves from political and social alienation. In the best cases, the dynamics of politics lead to the joy of recuperating a power of action that had been amputated by alienation. O ne must say therefore that there are different, compatible types of political joy: one that consists in manifesting one’s excellence to all the others, which is aristocratic in nature; and another that arises from the dispelling of alienation, which could be called a communist manifestation of the circle of freedom and equality. Another shift arising from thinking politics as the abolition of injustice and the struggle against social suffering relates to the meaning of ‘distinction’. A necessary requisite of an abolitionist conception of politics is that the collective is inescapably split. If some are not happy with the state of the social, and politics consists in their expressing their disagreement and attempting to bring about its transformation, it is necessary to conceptualize the universal as split, torn, or rife with tensions. This means that the ‘struggle for distinction’ should not be in fact conceptualized as ‘synagonism’, as a search for distinction for the common good, since that would immediately sweep the structural fact of domination and the empirical cases of alienation under the carpet (Karagiannis and W agner 2005 and in this volume). R ather, the agonism of democratic politics, of a politics serious about equality, must be conceived properly as antagonism. Indeed, to quote another important reference in the field of democratic agonism, this is what is entailed in to reconcile with all the other passages, in the same book and other writings that rely on sharply defined ontological boundaries.

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Foucault’s (1983) reference to ‘agonism’, in his famous lectures on ‘The Subject and Power’. Finally, an abolitionist conception of politics transforms the relation between politics and the law. In ����������������������������������������������������������� an A rendtian perspective, the law is fundamentally seen as a byproduct of a more fundamental instance, the act of founding, the creation of a common world and a public space. Famously, the A merican D eclaration of Independence, literally the constitution of a new common wealth, is for A rendt the paradigmatic case of such political action and creation, the exact antithesis to the awful example of the French R evolution (A rendt 1965, ch.4). A ccordingly, as a necessary delimitation of public space (A rendt 1958, 63������������������������ –����������������������� 5, 191), the law holds for as long as it is the expression of common will, but there is no need to be ultralegalistic or positivistic about it either. A s a result, the transformation of the law needs to be criticized, when it can be analysed as a substitution of poiesis to praxis (A rendt 1958, ch.5), but it can also be praised and supported when it is the true expression of collective will, a manifestation of the creativity of political praxis. N othing more precise or more concrete can be further said in this regard, since the only interesting aspect about the law is its origin, not its content or its effects. T he antagonistic model puts much greater emphasis on the inevitability of a challenge to the law as a central part of politics. T he law needs to be changed on the one hand because it is a major factor in the entrenchment of inequality and domination, in the entrenchment of social situations that make political equality and freedom a mockery; and on the other hand because it generally involves restrictions to political participation according to national or social statuses. S imilarly, the antagonistic, abolitionist approach to politics puts much greater emphasis on the tensions in the concept of rights. From an A rendtian perspective this is a fuzzy issue because the fundamental interest, once again, is in the political������������� –������������ ontological origin of all rights. Namely, the famous ‘right to have rights’, the right to be a full citizen or the citizen of a ‘true’ government, i.e. one that lets citizens appear and have their say (A rendt 1966, 296; A rendt 1965, 149). A n antagonistic approach to politics forces one to embrace the tensions between rights much more squarely. In particular, it is essential for this approach to make sure that rights can be upheld against other rights, notably to change the law. T he fundamental right is no longer the right to have rights, but the rights of liberty and equality, which amount to the

  This contradicts Tully’s (1999) interpretation of Foucauldian ‘agonism’. How can a challenge to the very rules of a ����������������������������������������������������������� ‘game’ be described as ‘agonistic’ only in the banal sense of competitive performance? A preliminary condition of any competition is acceptance of the rules and notably of who qualifies to play the game. Challenging the rules of the games is always something more radical and more confrontational, more ‘antagonistic’. By choosing the Greek term ‘agonism’, the aim of Foucault is probably to fluidify the reified understanding of class struggle in the orthodox Marxism of his day. T his is by no means synonymous with a reduction of political struggle to game-playing, sport or theatre.

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right to challenge definitions and applications of rights that entrench dominations and deny equality. Bibliography A rendt, H . (1958), The Human Condition (C hicago, IL: University of C hicago Press). A rendt, H . (1965), On Revolution (London: Penguin). A rendt, H . (1966), The Origins of Totalitarianism (New York: Harcourt Brace & C ompany). Arendt, H. (1968), ‘On Humanity in Dark Times’ in Men in Dark Times (N ew York: Harcourt Brace Jovanovich). Arendt, H. (1977), ‘What is Freedom?’ in Between Past and Future: Eight Exercises in Political Thought (H armondsworth: Penguin). A rendt, H . (1993), Was ist Politik?, ed. U. Ludz (Munich: Piper Verlag), translated as ‘Introduction into Politics’ in The Promise of Politics, ed. J. Kohn (New York: Schocken Books, 2005). Balibar, E. (2007), ‘(De)constructing the Human as Human Institution: A Reflection on the Coherence of Hannah Arendt’s Practical Philosophy’, Social Research 74:3, 727–38. Bernstein, R. (1986), ‘Rethinking the Social and the Political’ in Philosophical Profiles (Philadelphia, PA : University of Philadelphia Press). Bourdieu, P. (1999), The Weight of the World. Social Suffering in Contemporary Society (C ambridge: Polity Press). C orten, A . (2000), Diabolisation et Mal Politique. Haïti: Misère, Religion et Politique (Paris: Karthala). D ejours, C . (1998), Souffrance en France. La Banalisation de l’Injustice Sociale (Paris: S euil). Deranty, J.-P. (2004), ‘Injustice, Violence and Social Struggle. The Critical Potential of Axel Honneth’s Ethics of Recognition’, Critical Horizons 5, 297–322. Deranty, J.-P. (2007), ‘Democratic Aesthetics: On Jacques Rancière’s Latest Writings’, Critical Horizons, 8:2, 230–54. Foucault, M. (1983), ‘The Subject and Power’ in Michel Foucault: Beyond Structuralism and Hermeneutics, eds H . D reyfus and P. R abinow (Brighton: H arvester). H aber, S . (2006), ‘Que faut-il reprocher aux Manuscrits de 1844?’, Actuel Marx, 39, 55–70. H aber, S . (2007), L’Aliénation. Vie sociale et Expérience de la Dépossession (Paris: PUF).

  Rancière (2004) makes that very point in relation to the rights of refugees, typically the people whom A rendt believes are devoid of any rights since they are without world.

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Honig, B. (1995), ‘Toward an Agonistic Feminism: Hannah Arendt and the Politics of Identity’ in B. Honig (ed.) Feminist Interpretations of Hannah Arendt (University Park, PN: Pennsylvania State University). Honneth, A. (1995), ‘A Fragmented World: On the Implicit Relevance of Lukacs’s Early Work’ in The Fragmented World of the Social (New York: State University of New York Press). Ingram, J. (2006), ‘The Subject of the Politics of Recognition: Hannah Arendt and Jacques Rancière’ in G. Bertram, R. Celikates, C. Laudou and D. Lauer (eds) Socialité et reconnaissance. Grammaires ����������������������� de l’humain (Paris: L’Harmattan). Jaeggi, R. (1997), Welt und Person (Berlin: Lukas Verlag). Jaeggi, R. (2005), Entfremdung. Zur Aktualität eines Sozialphilosophischen Problems (Frankfurt/Main: Campus Verlag). Joas, H. (1997), The Creativity of Action (C hicago, IL: University of C hicago Press). Karagiannis, N. and P. Wagner (2005), ‘Towards a Theory of Synagonism’, Journal of Political Philosophy 13:3, 235–62. Kleinman A., V. Das and M. ������������������� Lock (eds) (1997), Social Suffering (Berkeley, Los A ngeles, CA : University of C alifornia Press). Markell, P. (2003), Bound by Recognition (Princeton, NJ: Princeton University Press). Mead, G .H . (1967), Mind, Self and Society (C hicago, IL: University of C hicago Press). Pitkin, H. (1981), ‘Justice: on Relating Public and Private’, Political Theory 9:3, 327–52. Rancière, J. (2004), ‘Who is the Subject of the Rights of Man?’, South Atlantic Quarterly 103:2/3, 297–310. Rancière J. (2006), Hatred of Democracy (London: Verso). R enault, E. (2004a), L’Expérience de l’Injustice (Paris: La D écouverte). Renault, E. (2004b), ‘European Conceptions of Identity’ in M. Mamdani (ed.) Keywords: Identity (New York: Other Press). Renault, E. (2005), ‘Radical Democracy and an Abolitionist Concept of Justice. A Critique of Habermas’ Theory of Justice’ Critical Horizons 6, 137–51. R enault, E. (2008), Souffrances Sociales. Sociologie, Psychologie et Politique (Paris: La D écouverte). Schaap, A. (forthcoming), ‘The Politics of Need’ in D. Celermajer, V. Karalis and A . S chaap (eds) Hannah Arendt and the Dilemmas of Humanism. (N ewcastle upon T yne: C ambridge S cholars Press). Tully, J. (1999), ‘The Agonic Freedom of Citizens’, Economy and Society 28:2, 161–82. W alzer, M. (1983), Spheres of Justice (New York: Basics Books). Wilkinson, I. (2005), Suffering. A Sociological Introduction (C ambridge: Polity Press).

C hapter 3

T he O pening: A legality and Political A gonism H ans Lindahl

T his chapter defends the thesis that the notion of alegality, which I will contrast to (il)legality, is the privileged point of access to a theory of the relation between law and political agonism. By introducing this notion, I aim to scrutinize two conceptually distinct but intertwined forms of legal disorder. The first concerns the distinction between legal and illegal acts. T his derivative form of legal disorder ensues when human behavior breaches a legal norm. T he second, primordial form of legal disorder involves acts that challenge the very distinction between legality and illegality, as drawn by a political community. S uch is the case, for example, when a group of individuals actively subverts the legal distinction between a private sphere of religious expression and a sphere of public obligations, as posited in the larger political community of which they are deemed members. It is this second form of legal disorder for which I reserve the term ‘alegality’, and which I describe at some length hereinafter. I propose, in particular, to explore the relation between law and political agonism by examining the interaction between alegal acts that challenge the distinction between legality and illegality, on the one hand, and the legal responses thereto, on the other. Politics, I will argue, is irreducibly agonistic because it involves a double asymmetry between acts that challenge (il)legality and the legal qualification thereof. This double asymmetry is the primordial form of openness. More precisely, it is an opening that precedes and conditions all forms of legal openness – and closure. A theory of the relation between law and political agonism is, at bottom, an attempt to think through how this O pening, as I will call it, conditions the possibility of all political claims to and contestations of legal commonality. T his chapter unfolds in four stages. S ection 1 offers an abridged presentation of legal order and disorder by drawing attention to the three-way distinction between legality, illegality and alegality. S ection 2 explains why struggle is not only ineluctable but also irreducible, i.e. why alegality is irreducible to (il)legality. Section 3 critically scrutinizes an important article by Jim Tully that attempts to control political agonism by subordinating struggle to the normative principle of reciprocity. Section 4 reflects on openness and closure, arguing that a normative theory of law and politics that does justice to the irreducibility of struggle should take its point of departure in the double asymmetry that holds sway between alegal acts and legal responses to alegality.

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Legality, Illegality and Alegality My initial assumption is that legislation (in a broad sense that includes all acts of law-making, ranging from the enactment of a constitution to a judicial ruling) orders human behavior by setting its boundaries. W hich boundaries? A n answer to this question passes through the well-known distinction between the four ‘spheres of validity’ of legal norms. In effect, the legal doctrine parses legal norms into their subjective, material, spatial and temporal spheres of validity. T o decide is to posit legal boundaries because legislation establishes, in general or in particular, explicitly or implicitly, who ought to do what, where and when. Importantly, although they focus on different dimensions of human behavior, each of these spheres of validity delimits behavior in terms of the binary distinction between the legal and the illegal. A ccordingly, and in general, to legislate, by positing the subjective, material, spatial and temporal boundaries of human behavior, is, for each of these four spheres of validity, to posit the distinction between legality and illegality. W hat is the ground of legislative acts? A ccording to modern political theory, legislative acts and the legal order they enact are grounded insofar as they are acts of collective self-legislation. What sense are we to make of the notion of ‘self’ implied in collective self-legislation, and how does this pertain to the notion of legislative acts as being grounded or justified? I take my cue from Pettit’s (2001, 80) observation that ‘the word “self” derives from the pronominal se- whereby we indicate that an attitude or action bears on the agent himself or herself.’ Drawing on this etymology, he proposes to reserve the notion of selfhood ‘for those agents who can in principle speak for themselves and think of themselves under the aspect of the first-person indexicals ‘I’ and ‘me’, ‘my’ and ‘mine’’ (Pettit 2001, 80). As he later points out, selfhood is not limited to the first-person singular perspective. The reflexive structure of selfhood includes the first-person plural perspective of a ‘we’ as a collective agent: ‘As there is a personal perspective available only with talk of “I”, so there is a personal perspective that becomes available only with talk of “we”’ (Pettit 2001, 117). On this reading, political self-legislation is a species of collective action; it denotes those acts whereby the members of a polity articulate a common interest by referring to themselves as the unity that enacts legal norms and for the sake of which those norms are enacted (Van Roermund 2003). Legislation, on this reflexive reading, is grounded insofar as a collective as its interested author enacts it. In short, collective self-legislation not only yields the basic structure of legislation, as an act of positing legal boundaries, but also of what counts, in political modernity, as a grounded legal order. W hile the theories of collective intentionality and action advanced by Bratman, Pettit and others offer a persuasive alternative to attempts to dissolve collective self-legislation into a summation of individual acts, while steering clear of any reification of collective selfhood, those theories fall prey to a decisive difficulty. Indeed, the foregoing account of collective self-legislation assumes that the boundaries that give rise to a legal order have already been posited. But

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this assumption conceals the fact that, by definition, acts that create legal orders cannot themselves be a part thereof. Indeed, the founding acts of legal order are themselves neither legal nor illegal because both terms of this binary opposition already presuppose a legal order as the condition for their intelligibility. Instead, foundational acts are alegal: they institute the distinction itself between legality and illegality. More generally, the alegality of foundational acts implies that these acts do not fall on either side of the master distinction between selfhood and alterity. To the contrary, they introduce the cleavage, both ‘othering’ and ‘selfing’ at one fell swoop. O n this reading, collective self-legislation is the constitution of a collective self (and its others) through a legislative act. But this is only part of the story. Indeed, inaugural acts can only posit legal boundaries ab initio by repositing these boundaries. So the ‘paradox of politics’ (H onig 2007) amounts to the paradox of representation (an act originates a collective by representing the original collective) and the paradox of constituent power (constituent power inaugurates a polity by acting as a constituted power). If constituent acts succeed (i.e. if the individuals that such acts evoke as members of a group attribute these to themselves as their own constituent acts), the distinction between selfhood and alterity takes hold, albeit provisionally and incompletely, such that alegal acts appear retrospectively as having been legal. If and to the extent that this happens, collective self-legislation is an act of boundary setting by a collective self. T hese ideas shed further light on the problem of the ground of the acts that posit legal boundaries and, therewith, the distinction itself between legality and illegality. O n the one hand, in the same way that the question who is a party to a social contract cannot be decided by a social contract without begging the question, so also the prior issue concerning who is a party to a practical discourse or dialogue in view of grounding legislation requires a prior decision that is neither discursive nor dialogical. As has been noted, this exposes an irresolvable difficulty in Habermas’ attempt to reconstruct a normative account of legal order in terms of what he calls a ‘practical discourse’ (cf. Van Roermund 1997, 145ff, and in this volume; Honig 2007). A no less irresolvable difficulty confronts dialogical conceptions of politics and law. In the process of defending constitutional dialogue as the legal vehicle of political recognition, T ully inadvertently exposes the blind spot of dialogue, when he notes that ‘only a dialogue in which different ways of participating in the dialogue are mutually recognized would be just (even if the first piece of business is to agree on which forms of dialogue are admissible)’ (Tully 1995, 53). Notice that the proviso within brackets is but the first step in what has already become an infinite regress. O n the other hand, whoever seizes the initiative to found a polity must claim to legislate in the name of a collective, attributing her/his act to a group. A ttribution  ������������������������������������������������������������������������������������������� I have previously referred to this three-way distinction in terms of legality, illegality, and non-legality (Lindahl 2003), but I prefer this rendition of it, which I borrow from W aldenfels (2006: 130–1).

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always involves both a representational claim (the evocation of a collective ground of acts of setting legal boundaries) and a representational claim (the evocation of a collective ground that can be contested, validated, or rejected). T his allows for justifying legislative acts, albeit a posteriori and ever incompletely. In short, the paradox of politics deconstructs the simple opposition between groundless and grounded legislative acts: a groundless act can only inaugurate a polity if it retrospectively succeeds in being viewed as grounded (Lindahl 2007; Lindahl 2008b). But this ‘success’ is always ambiguous, for the self-attribution of legal norms by a group of individuals as their interested author never entirely neutralizes the residual groundlessness of the act whereby someone seizes the initiative to posit legal boundaries on behalf of a ‘we’. Indeed, the normalization, whereby alegal foundational acts retrospectively are deemed legal, has its inverted image in the disruptions of legal boundaries whereby the prospective qualification of behavior as legal or illegal is challenged by alegal behavior. A ccordingly, the alegal foundation of a polity catches up with it from behind by announcing itself from up front – from the future. By alegal behavior I mean acts that contest the distinction between legality and illegality, as drawn by a legal order, intimating another way of distinguishing between these terms. A s such, alegality exposes the gap between actual and possible law. Alegal acts not only break the law; they also transgress it. Importantly, the ‘a’ of alegality does not mean the other of legality, for this is illegality; instead, it means that such acts transgress boundaries by revealing another legality, other possibilities of drawing the distinction between legality and illegality. More precisely, alegal acts contest legal boundaries by intimating the possible legality of what counts as illegal, and the possible illegality of what counts as legal. A nd in the same way that alegality disrupts (il)legality, it also disrupts the master distinction between selfhood and alterity. T o conclude this section, notice that these considerations on alegality, however abridged, offer a preliminary understanding of the concept of struggle, which is constitutive for political agonism. T he agon refers, in legal terms, to the ever-present possibility of alegal behavior, to a form of behavior that is not merely disorderly by dint of being illegal, but which also contests the orderliness of the law itself by revealing the residual groundlessness of what that order calls (il)legality. In other words, struggle is the overt manifestation of the irreducible contingency of legal orders. Moreover, to the extent that in the foundation of legal order has a residual alegality that never entirely disappears, so also political struggle is ineluctable: no legal order can succeed in stabilizing itself definitively. Question and Response Although this characterization of alegality takes us part of the way in understanding the relation between law and political agonism, a further and decisive step is required. For even if it is acknowledged that struggle about (il)legality is an ineluctable feature of politics, need we conclude that it is also an irreducible

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feature thereof? C annot alegality be integrated – ideally, if not always in fact – into the law by way of an enlarged legality? A ddressing this problem requires that we outline how legal orders respond to alegality. In effect, legislative acts are, to begin with, responsive to something that demands a normative, no less than a factual, qualification. Something demands legal qualification, in the very broad sense of a determination of who ought to do what, where and when. A s such, legislation responds to a question about legal boundaries. My claim is, therefore, twofold. First, acts of setting legal boundaries – legislative acts – are responsive because, at every turn, human behavior renders legal boundaries questionable, if nothing else because it must be established whether behavior is legal or illegal – derivative questionability, as I would call it. But, second, legislative acts are responsive in a strong sense of the term because alegal behavior betrays the residual groundlessness of legal boundaries – primordial questionability, as I would call it. O n this strong reading of responsiveness, to legislate is to deal, in one way or another, with the primordial questionability of legal boundaries, as revealed through alegal behavior. In turn, to deal with this primordial questionability means, for a manifold of individuals, having to determine time and again, with respect to what demands legal qualification, whether they are (to become) a unity and what defines them as a unity, i.e. which determinations of (il)legality are their own possibilities. A n elemental objection arises at this point: if collectives can only qualify human behavior as legal or illegal, how can they at all be responsive to alegality? The key to this problem resides in the paradox of politics: as noted earlier, inaugural acts originate a polity by repositing the boundaries of an original polity. A ccordingly, not only must every collective qualify human behavior as legal or illegal, but what calls for legal qualification inevitably confronts it with the question concerning an original unity to which it has no direct access, yet which it has to determine time and again through acts of boundary-setting. T his predicament explains why no polity can avoid deciding, time and again, about (il)legality. Because the paradoxical foundation of political community ensures that there is no direct access to the original community, legislative acts are never only about enforcing boundaries, hence about enforcing the distinction between legality and illegality. T he legal qualification of human behavior is always a decision because it unavoidably involves an assessment about what counts as legality and illegality, and therewith about what counts as a collective self and its others. In this minimal sense, legislative acts are always acts of boundary constitution. More properly, boundary enforcement and constitution are always intertwined, in such a way that although one or the other is more prominent, neither is ever given in pure form. For, in the same way that acts of boundary constitution claim to enforce the original boundaries of a collective, acts of boundary enforcement constitute those boundaries each time around, even when reaffirming their prior settings. A ccordingly, and returning to the objection   This intertwinement entails that David Owen misses the mark, in his contribution to this volume (see Chapter 4), when claiming that my account of law-making falls prey to ‘legal formalism’.

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at the outset of this paragraph, legislative acts can respond indirectly to alegality, by retroactively ordering anew the distinction between legality and illegality, and between selfhood and alterity. Now, it is tempting to immediately map these two kinds of legislative acts onto the distinction between (il)legality and alegality, in such a way that responses are dictated by questions. O n the one hand, legislative acts can enforce the boundaries of legal order in response to (il)legal acts. T hat we are and what we are as a collective are assumptions deemed to be more or less unproblematic in the acts that enforce boundaries. In other words, boundary enforcement takes for granted and confirms the distinctions between legality and illegality, and between selfhood and alterity, as posited in extant legal boundaries. O n the other, legislative acts can constitute the boundaries of legal order in response to alegal acts. In the face of alegal challenges to legal boundaries, a legislative act can constitute a collective while claiming to do no more than restore its original boundaries. Boundary constitution is, of course, a foundational act, an alegal response to alegal behavior. T he disruption of the distinctions between legality and illegality, and selfhood and alterity, elicited by alegal challenges to legal boundaries, is responded to by acts that posit the distinction (anew) from a position that is neither that of a collective self nor of its others. T here is, however, no simple sequence going from illegal behavior to boundary enforcement on the one hand, nor from alegal behavior to boundary constitution on the other. Indeed, there is an irreducible hiatus between the questionability of legal boundaries and the responsiveness of legislative acts. T his hiatus has two aspects. On the one hand, what demands legal qualification precedes the law, not merely temporally but most fundamentally because human behavior never entirely fits legal expectations. H uman behavior is always at least minimally alegal because it in some way upsets the anticipations of legality/illegality encoded in legal norms. This ‘precedence’ precludes that the meaning of human behavior can ever simply be a legal construct. In other words, what calls for legal qualification does not simply collapse into the legal qualification thereof. To this extent, questions do precede responses. O n the other hand, the responsiveness of legislative acts is never merely subordinate to what calls for legal qualification, never a fixed reaction to a pre-coded stimulus. T his is not only the case because, when legislating, a collective can marshal a variable range of responses to what calls for legal qualification. More radically, legislative acts are responsive because they establish retroactively whether and how behavior is alegal. C onsequently, the sequence going from (il)legality to boundary enforcement, and from alegality to boundary constitution, has its double in the inverted sequence: behavior becomes (il)legal when legislation enforces boundaries, and alegal when legislation constitutes boundaries. Legislation is responsive in a strong sense of the term because ‘that to which it responds occurs only in responding to it’ (Waldenfels 1994, 266).  ��������������������������������������������������������������������������������� My treatment of ‘precedence’ and ‘retroactivity’ draws on what Waldenfels calls, respectively, the Vorgängigkeit of questions and the Nachträglichkeit of responsiveness.

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T his strong sense of responsiveness has two aspects that require our further attention. O n the one hand, there is no overarching, independent normative viewpoint whence it would be possible for ‘all relevant parties’ to establish whether and how behavior is alegal, and how it should be responded to. For, as we have seen, who counts as ‘a relevant party’ presupposes a foundational act that seizes the initiative to determine who is a party and what interests join a manifold of individuals into a collective. O n the other hand, to a lesser or greater extent responses frame questions in ways that render them amenable to a response. T he interpretation of behavior as alegal is bound up with an authoritative assessment about what normative possibilities are the collective’s own possibilities. For this assessment determines the range of the collective’s available responses to a normative claim. So, legislative acts don’t only establish whether an act is alegal; also, and most fundamentally, they establish what kinds of alegality a collective can deal with. O n this reading, the responsive framing of questions by legislative acts has two limits. The first would be an act of legal qualification in which the distinction between legality and illegality, as posited in the extant legal order, exhausts the meaning of what calls for qualification. This extreme would mark a hypothetical situation in which behavior raises no normative claim of its own; instead, it would have a merely factual status that calls for normative qualification as legal or illegal. In such cases, legislative acts would cease to frame what calls for legal qualification, because what they qualify poses an entirely derivative question, in the sense noted hitherto; legislative acts would cease to be responsive, in this strong sense. T he second limit situation consists in the characterization of behavior as terrorist. By qualifying an act as terrorist, legal authorities deny that it can be the index of another legality, claiming, instead, that it is the expression of sheer illegality. Paradoxically, what raises normative claims that definitively elude the distinction between legality and illegality, as posited by a polity, is qualified as the definitive confirmation thereof, such that there is no option but to enforce the distinction – or so legal authorities claim. Terrorism marks a limit case of the responsive framing of questions because terrorism is the form of primordial questionability that can only be responded to by leveling it down to an entirely derivative form of questionability – or so authorities hold. H ere again, a legislative act ceases to be responsive, in the strong sense noted heretofore. In short, legislative acts display a finite responsiveness to what challenges legal boundaries, which means that they frame human behavior in such a way that it provokes the collective self with a finite questionability. In responding, legislative acts neutralize, to a greater or lesser extent, the alegality of what calls for legal qualification. This finite questionability and responsiveness entails that although a legal order can be transformed to a lesser or greater extent in response to the contestation of (il)legality, alegality is what resists inclusion in the legal order. In this strong sense of the term ‘alegality,’ struggle about (il)legality is not only ineluctable; it is also irreducible. In other words, precisely because authorities must present a legal order as a unity, for otherwise there could be no claim to collective

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self-legislation, political plurality is irreducible: the responsiveness of a legal order to what contests it is limited, and not merely when contestation takes on the form of what the order’s authorities dub ‘revolutionary’ or ‘terrorist’ activities. Reciprocity and the Neutralization of Alegality Before turning to consider what normative implications arise from the insight that political agonism is irreducible in this strong sense, I would first like to critically examine an attempt to bring the agon under control by subordinating struggle to the normative principle of reciprocity. To this effect, I will scrutinize what I take to be an uncompromising and acute attempt to reconcile political agonism with the principle of reciprocity: Jim Tully’s notion of a ‘constitutional dialogue’. To this effect, I will focus primarily on his important essay, ‘Struggles over Recognition and Distribution’. Although this essay does not capture the full scope of Tully’s view on political agonism, it is exemplary in defending political struggle against theories that would compromise its irreducibility. A s he perceptively notes, theories of justice generally view struggle as ‘something to be overcome or as a means to an end, even when one segment of the activity – an idealized mode of argumentation aimed at reaching agreement – was seen as the means to discover the just outcome and so end the struggle’ (Tully 2000, 478). Instead of concentrating on the goals of the struggles or how they could be fairly adjudicated, he argues, ‘one should look on the struggles themselves as the primary thing’ (Tully 2000, 469). Closer analysis reveals, however, that Tully’s interpretation of constitutional dialogue gainsays the irreducibility of political agonism. T o see why, let us begin with the essay’s central question. It evokes, almost verbatim, the concept of alegality outlined heretofore: ‘[W]hy is democratic activity not only agreement and disagreement within a set of rules of recognition and distribution, but also agreement and disagreement over any of these rules from time to time?’ (Tully 2000, 472). Tully distinguishes four kinds of constitutional rules which, from time to time, are the object of struggle: membership and the rights, duties and powers that accrue thereto; relations of governance among members; the set of procedures and institutions of democratic discussion and amendment of the foregoing rules; and the principles, values and goods that have a bearing on the identity of a community’s members. While there can be ‘reasonable disagreement’ among the members of the community about their interpretation, ‘these principles, values, and goods comprise the public normative warrants members appeal to in exchanging public reasons over the justice and stability of their conflicting demands for and against recognition [and distribution]’ (Tully 2000, 473). Not only ‘must [demands of recognition and distribution] be made good to others in terms of the principles, values, and goods they all share to some degree’, but these joint principles, values and goods condition the very possibility of ‘mutual recognition or reciprocity’ (Tully 2000, 475, 474). In turn, and crucially, mutual recognition or reciprocity based on shared principles, values and goods is the criterion that allows

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of drawing the line between ‘reasonable’ and ‘unreasonable’ forms of political struggle. In Tully’s view, mutual recognition is the yardstick that distinguishes forms of struggle that ought to be admitted to the forum of constitutional dialogue from those that ought to be evicted: S ince a demand is based on an argument that the member has been misrecognized or non-recognized, then the demand cannot itself involve the misrecognition or nonrecognition of others without committing a performative contradiction. S uch unilateral demands are unreasonable and should be ignored by the other members of the society. T hat is, legitimate recognition is always mutual. (T ully 2000, 474)

So, Tully’s interpretation of political agonism takes for granted: that there are reasonable and unreasonable forms of struggle, thus forms of alegality that deserve a hearing and those that don’t; that the principle of reciprocity determines what counts as reasonable struggle; and, finally, that ideally, if not necessarily in fact, politics is a negotiation in which initial ‘reasonable disagreement’ – alegality – leads to agreement, that is, to a mutually shared understanding of (il)legality, albeit provisional and fragile. C onstitutional dialogue aims to redress asymmetric relations, as unmasked by alegal behavior, such that a transformed, mutually accepted understanding of (il)legality, even if in the form of a compromise, sheds new light on the principles, values and goods that the members of the community already share. In other words, the immanent telos of constitutional dialogue is to reactualize, albeit ever provisionally, the prior, underlying agreement among the members of a polity concerning their joint principles, values and goods. Accordingly, the difference between Tully’s constitutional dialogue and the theories of justice to which he objects is not whether struggle is to be overcome (provisionally); the bone of contention is whether the criterion of what counts as the overcoming of ‘reasonable’ struggle is transcendent or immanent. This amounts to the claim that political plurality, if ‘reasonable,’ can be accommodated, at least in principle, within the transformed unity of a legal order. It is no coincidence, in this respect, that T ully would have political plurality be arbitrated by a constitutional dialogue, and that the constitution incorporates the shared principles, values and goods that define in advance what counts as a ‘reasonable’ struggle for recognition and distribution, namely, claims to alegality that accept those shared principles, values and goods, even while contesting their legal actualization. By contrast, any form of alegal behavior that contests that these principles, values and goods ought to be shared in any meaningful sense, is constitutionally out of bounds, ‘unreasonable’, and, returning to Tully’s formulation, ‘should be ignored by the other members of the society’. But this is precisely the notion of alegality in the strong sense noted at the end of S ection 2, namely, what resists integration into a legal order. A legality is, most fundamentally, about what counts as the distinction between politically reasonable and unreasonable behavior, not about the actualizations of a given criterion thereof. T he disagreement T ully is prepared to accept is a weak disagreement, a form of struggle that presupposes

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and is called on to confirm a prior, more fundamental agreement. In short, while Tully’s constitutional dialogue acknowledges the ineluctability of struggle, it asserts its reducibility. T ully illustrates the normative implications that follow from the reducibility thesis when he endorses Avigail Eisenberg’s analysis of Thomas v. Norris, a ruling by a Canadian federal court. The reader will quickly recognize that this is precisely the example I had in mind at the outset of this chapter when illustrating the basic structure of alegal acts. T he plaintiff, T homas, claimed that he had been subjected to assault, battery and imprisonment when he refused to participate in a spirit dance of the C oast S alish nation. T he defendants argued that they had a collective right to force the plaintiff, as a member of the nation, to participate in the spirit dance. T ully (1995, 172, citing Eisenberg 1994, 18) summarizes the ruling as follows: ‘The court found, as Eisenberg puts it, “that the Spirit Dance, and more specifically the involuntary aspect of it, was not a central feature of the Salish way of life”.’ Tully views this ruling as exemplary for a constitutional dialogue that respects claims to recognition: ‘The question the justices ask is how to apply rights even-handedly so they do not discriminate against citizens’ identity-related differences that can be shown to be worthy of protection’ (Tully 1995, 172 – emphasis added). Notice that the proviso neatly captures the distinction between ‘reasonable’ and ‘unreasonable’ struggle to which Tully alludes. As the collective right invoked by the representatives of the C oast S alish nation contests fundamental principles, values and goods that he takes to be shared by all C anadians, they engage in an ‘unreasonable’ form of struggle: they fall prey to a ‘performative contradiction’, such that their claim need not be heard. For, if the C oast S alish had a collective right to enforce participation by their members in spirit dances, it would not be possible, it seems, to view this first nation as being part of the Canadian political community. That is, this first nation could not be seen as participating in a practice of mutual recognition that takes for granted the principles, values and goods of a liberal community, in particular the sharp distinction between public obligations and private freedom of religion. T he question, however, is whether what conditions the possibility of rebuking the Coast Salish government council for their ‘performative contradiction’ is not itself a performative act, an act that makes Canadian citizens of the Coast Salish in the very process of claiming that the distinction between public obligations and private freedom of religious expression is already shared by all Canadian citizens. By claiming that ‘the Spirit Dance is not a central feature of the Salish way of life’, the federal court can reassert this distinction in such a way that the defendants’ act of coercion becomes a manifestation of derivative questionability that demands a legal act of boundary enforcement. H ere, precisely, is an example of the responsive framing of questions to which I alluded in the foregoing section, whereby, to a lesser or greater extent,   It makes no difference, in this respect, whether dialogue takes place between two persons or many, in the form of what he calls a ‘multilogue’ (Tully 2000: 475).

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legal authorities neutralize the alegality of what calls for legal qualification in light of what are deemed to be the polity’s own normative possibilities. Perhaps no liberal community can compromise on the aforementioned divide between the public and the private. But by celebrating the court’s ruling as the expression of mutual recognition, rather than as an asymmetrical act of legal qualification, Tully and Eisenberg contribute to masking the court’s neutralization of alegality. To this extent, both authors prove to be political monists, defining political plurality in such a way that it is a pretext for and the celebration of legal unity: e pluribus unum (see Lindahl 2008a). Let me generalize this point as follows. My concern with theories of political agonism that would reconcile struggle with reciprocity is that they ultimately pass off an asymmetrical relation as a symmetrical relation, such that whoever contests the criterion that determines the two positions of the allegedly symmetrical relation can be disqualified as unreasonable and not worthy of being heard. Succinctly, normative theories of political agonism that appeal to reciprocity ultimately level down alegality to (il)legality. The Opening W hat would be the contours of an alternative normative theory of law and politics that acknowledges that the agon and political plurality are not only ineluctable but also irreducible, in the strong sense noted heretofore? T his issue comes to a head in the problem of openness and closure: if struggle is irreducible, in what sense, if any, can a normative theory of law and politics be based on the injunction that a legal order be open to alegality? It is instructive to first look at what is arguably the most powerful interpretation of openness and closure in terms of reciprocity: Gadamer’s reconstruction of recognition in terms of what he dubs the hermeneutic experience. In what is indisputably the central ethical thesis of Truth and Method, G adamer (1990, 361 – translation altered) asserts that ‘Openness for the other … involves recognizing that I must allow something to hold against me, even if there were nobody that were to   Owen also claims, in his contribution to this volume, that I overlook the fact that Tully outlines a theory of agonism in the framework of democratic polities, and more precisely, of democracies under the rule of law. The problem I see myself as exposing in Tully’s account of political agonism cuts deeper than that, however. Institutionally speaking, a radically finite responsiveness of legislation to alegality means that the claim that the rule of law can accommodate all forms of democratically relevant contestation is ultimately tautologous. Indeed, no constitutional democracy escapes the predicament that only those forms of contestation count as democratically relevant that can be accommodated in a given constitutional order. A lthough constitutional democracies can deal with alegality up to a point, they never respond to it without neutralizing it to a lesser or greater extent. A nd this is to say that political pluralism is irreducible to legal unity.

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hold it against me’. The relevance of this passage to our own questioning becomes clearer if we focus on the word against. G adamer (1990, 354) insists that human experience is rooted in the negation of what we take for granted: ‘experience is initially always experience of negation (Nichtigkeit)’. This moment of negativity announces itself as strangeness, as what resists integration into our familiar world. W hile G adamer is concerned to reveal the general structure of the hermeneutic experience, his analysis of negativity and of strangeness includes what I have called alegality. For if a legal order anticipates reality and renders it familiar in terms of the distinction between legality and illegality, alegality, by contrast, contests, negates, that distinction; alegality is the legal manifestation of strangeness, that is, what resists inclusion in the legal order as (il)legal. N otice that the reference to ‘inclusion’ already invokes openness. So, for Gadamer, ethics is ingredient to the law in the form of an injunction to legal authorities: be open to alegality. But what does ‘openness’ mean here? And how is Gadamer’s interpretation of openness linked to an interpretation of its contrasting term, closure? On the one hand, Gadamer (1990, 345) strenuously objects to Hegel’s metaphysical thesis about the ‘total self-mediation of reason’, in which ‘ultimately, reason is its own foundation’. Gadamer insists that true openness requires acknowledgment of human finitude, of the fact that all anticipations and plans are limited, bounded. In other words, there is no openness without a prior closure; part of our finite condition is that the prior closure of all human fields of activity, whether individual or collective, is not and cannot be directly known as such in advance of the experience of strangeness. A ccordingly, legal orders are dependent on alegality to reveal the closure of a legal order, in the strong sense of the distinction between actual and possible law. O n the other, G adamer rejects the total self-mediation of reason to be able to endorse the H egelian thesis that reason is self-mediation: ‘The concept of experience means precisely this, that this kind of unity with oneself is first established. T his is the reversal that consciousness undergoes when it recognizes itself in what is alien and different’ (Gadamer 1990, 355). Recognition of the other in its strangeness is ultimately self-recognition and vice versa, such that the struggle for recognition presupposes a reciprocal or ‘mutual relation’ to be realized through that struggle (G adamer 1990, 365). A lthough there is no openness without a prior closure, closure is in principle provisional and called on to be overcome in a dialectic process. ‘What makes a limit a limit always also includes knowledge of what is on both sides of it. It is the dialectic of the limit to exist only by being superseded’ (G adamer 1990, 343). S o, returning to our initial question, openness to alegality means overcoming it as alegality through a transformed, more inclusive formulation of (il)legality. O penness, for G adamer, as for all theorists of recognition, amounts to the reduction of alegality to (il)legality. It is here, precisely, where a theory of law and politics that views the agon as irreducible must part ways with all normative variations on the theme of reciprocity. S truggle is irreducible because legal boundaries themselves are irreducible, even though they are amenable to transformation: by positing the distinction between legality and illegality, legislation not only includes what it excludes, but also, to

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a lesser or greater extent, excludes what it includes. T he closure of legal orders is definitive rather than provisional, to the extent that legislation cannot include without excluding. It is this strong sense of finitude I invoke when claiming, at the end of S ection 4, that legislation deploys a finite responsiveness to alegality. T his does not mean, however, that openness to alegality must be banished from a normative theory of the relation between law and politics. It means, to the contrary, that Gadamer’s injunction, ‘I must allow something to hold against me, even if there were nobody that were to hold it against me’, acquires its full normative significance for authoritative acts of positing legal boundaries only if such acts acknowledge, albeit indirectly, that they exclude what they include. T he governing insight of this alternative approach would be, therefore, that the encounter between what calls for legal qualification and the legal qualification thereof does not take place between reciprocal or symmetrical positions. Instead, it would embrace the insight that this encounter involves a double asymmetry. Here, I think, lies a new way of understanding the ‘between’ evoked in the notion of a dia-logue, a ‘between’ that is not a ‘common ground’ (Tully 1995, 14). If ‘dialogue’ means a ‘logos of the between’, then not in the form of the ‘selfmediation of reason’ but rather as a logos of the double asymmetry that holds sway between what calls for legal qualification and the legal responses thereto. T his double asymmetry is the primordial form of openness. More precisely, it is an opening that renders possible all forms of institutional openness – and closure. T his O pening, as I would call it, conditions the possibility of political agonism because it is not a ‘ground’ nor a ‘common ground,’ but rather an abyss – an Abgrund, as Heidegger would put it – that precedes and makes possible all claims to and contestations of legal commonality. Acknowledgement T his chapter is a revised version of a paper published in Rechtsfilosofie and Rechtstheorie 37:2 (2008) under the title ‘Law’s “Uncanniness”: A Phenomenology of Legal Decisions’. Bibliography Eisenberg, A. (1994), ‘The Politics of Individual and Group Difference in Canadian Jurisprudence’, Canadian Journal of Political Science 27, 3–21. G adamer, H -G . (1990), Truth and Method, 2nd edition, trans. J. Weinsheimer and D.G. Marshall (New York: Crossroads). Honig, B. (2007), ‘Between Decision and Deliberation: Political Paradox in Democratic Theory’, American Political Science Review 101, 1–17. Lindahl, H. (2003), ‘Dialectic and Revolution: Confronting Kelsen and Gadamer on Legal Interpretation’, Cardozo Law Review 24:2, 769–98.

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Lindahl, H. (2007), ‘Constituent Power and Reflexive Identity: Towards an Ontology of Collective Selfhood’ in M. Loughlin and N. Walker (eds) The Paradox of Constitutionalism (O xford: O xford University Press). Lindahl, H. (2008a), ‘Democracy, Political Reflexivity, and Bounded Dialogues: Revisiting the Monism-Pluralism Debate’ in E. Christodoulidis and S. Tierney (eds) Public Law and Politics: The Scope and Limits of Constitutionalism (A ldershot: A shgate). Lindahl, H. (2008b), ‘Collective Self-Legislation as an Actus Impurus: A R esponse to Heidegger’s Critique of European Nihilism’, Continental Philosophy Review 41, 323–43. Pettit, P. (2001), A Theory of Freedom (C ambridge: Polity). Tully, J. (1995), Strange Multiplicity: Constitutionalism in an Age of Diversity (C ambridge: C ambridge University Press). Tully, J. (2000), ‘Struggles over Recognition and Distribution’, Constellations 7, 469–82. Van R oermund, B. (1997), Law, Narrative and Reality: An Essay in Intercepting Politics (D ordrecht: Kluwer A cademic Publishers). Van Roermund, B. (2003), ‘First-Person Plural Legislature: Political Reflexivity and Representation’, Philosophical Explorations 6, 235–52. W aldenfels, B. (1994), Antwortregister (Frankfurt: Suhrkamp). W aldenfels, B. (2006), Schattenrisse der Moral (Frankfurt: Suhrkamp).

C hapter 4

T he Expressive A gon: O n Political A gency in a C onstitutional D emocratic Polity D avid O wen

T o conceive of the democratic polity as an agon is, first and foremost, to conceive of it as a site of plurality, as a stage on which the plural citizens of the polity deploy diverse perspectives to contest the terms, conditions, character, purpose and direction of the polity; of how, when, where and to what extent it should govern those subject to its rule. H owever, to adopt the approach that has come to be called ‘political agonism’ is to do more than conceive the polity in this way. It is also, on the account that I favour, to advance a normative orientation composed of the following four features. First, an acknowledgement of the ‘circumstances of politics’ (Waldron 1998): the condition that political disagreement may extend all the way down to fundamentals of justice and yet decisions-in-common need to be made. S econd, an understanding of the agon as the field of political expression, where expression is intended here in the strong sense that entails viewing citizenship not primarily as civil status or office but as civic activity, as the working out of one’s civic identity. Third, an account of political belonging as not best conceived in terms of, say, identification with a political conception of justice that is the product of an overlapping consensus but, rather, as the by-product of participation in civic activity, that is, the exercise of civic freedom. Fourth, an argument that civic virtues are cultivated in and through civic activity, particularly deliberation understood as rhetorical speech, where the authority of an utterance is not fully separable from the question of who is speaking to whom about what. There are a number of points one could make concerning this specification of ‘political agonism’ which distinguish it from other variants on this theme as well as from other approaches to conceptualizing constitutional democratic politics. Perhaps the most central of these, however, is that political agency is conceived on an expressivist account in which the practice of citizenship is presented as the working out of one’s civic identity and, hence, the nature and extent of one’s community with one’s fellow citizens (see Owen 1995; Tully 2002; Norval 2007; O wen and T ully 2007). T hus, constitutional democratic politics is most fundamentally to be seen as specifying the medium through which this activity of working out the terms of our association and one’s relations to one’s fellow citizens is accomplished. T his view stands in contrast to (instrumentally) agonistic conceptions of constitutional democratic politics that conceive it fundamentally as the vehicle through which conflicts of interests are negotiated. In this latter case,

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constitutional democratic politics is an instrument of (ongoing) conflict resolution that is designed to be reasonably responsive to the interests of diverse citizens conceived as free and equals. A good illustration of this latter view is provided by Phillip Pettit’s (1999) reflections on what he terms ‘contestatory democracy’ in which he draws attention to the point that, within the institutions of representative democracy, the interests articulated by minority groups may be ignored or, at least, not granted equal status within the decision-making process. Pettit’s (1999, 179) suggestion is to introduce contestatory mechanisms such that a minority group who hold that the decision reached has not adequately acknowledged their political voice can contest the decision through: a procedure that would enable people, not to veto public decisions on the basis of their avowable, perceived interests, but to call them into question on such a basis and trigger a review; in particular, to trigger a review in a forum that they and others can all endorse as an impartial court of appeal.

S uch a contestatory supplement is, Pettit argues, important not least because it contributes to maintaining an effective sense of political belonging among minority groups. Given an interests-based account of political agency, Pettit’s arguments are compelling but this type of account presents as fundamental what is secondary. The interests that one understands oneself and/or one’s fellow citizens as having or sharing are always already conditional on the way in which one understands the form and substance of our relationship to one another as citizens – and this requires acknowledging the priority of a view of constitutional democracy as the medium through which we work out our civic identities rather than as the vehicle through which we negotiate conflicts of interests. Given the strength of this claim, this chapter begins by drawing on the work of Nietzsche, Cavell and T ully to elaborate a central feature of this version of political agonism, namely, its commitment to an expressivist conception of human agency, before turning to explore the implications of conceiving constitutional democracy as the medium of political agency. Ethical Agency: Expressivism and the Sovereign Individual What is it to speak of an expressivist account of political agency? To adapt Kant, one may say that political agency is expressive in the sense that the agent’s intention is not confirmed by the exemplary performance of a political act; it is discovered and revealed in and through that performance. More precisely, while political agency is rule-governed (it is neither arbitrary nor chaotic), the rule for such activity cannot be codified, that is, stated independently and in advance of the activity itself – in Kant’s words, it cannot have ‘a concept for its determining

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ground’ – but rather must ‘be gathered from the performance, i.e., from the product, which others may use to put their own talent to the test, so as to let it serve as a model, not for imitation, but for following’ (Kant 1952, S.46–7). An alternative, more W ittgensteinian, way of putting this point is to say that to engage in political speech and action is to bind oneself to norms, the nature and extent of which cannot be specified independently and in advance of the activity of acting in accordance with, or going against, them in actual cases. Before turning to the specific case of political agency in a constitutional democratic polity, I will start by sketching a general understanding of ethical agency in terms of such a picture by recourse to Nietzsche’s reflections on the figure of the sovereign individual. In the figure of the sovereign individual, Nietzsche presents the concept of the autonomous individual who is not bound by moral rules as customary constraints, but as the freely endorsed commitments through which he gives expression to his own character. In one respect, the evaluative contrast drawn in Nietzsche’s discussion of the sovereign individual is between those who are entitled to represent themselves ‘to others as holding certain beliefs or attitudes’ or commitments and those who ‘do not have the same right to speak in this way on their own behalf’ (Lovibond 2002, 71). The sovereign individual, as the positive pole of Nietzsche’s contrast, refers to ‘the condition of “self-mastery” or full competence to represent oneself to the rest of the world’ (Lovibond 2002, 74). At the negative pole of Nietzsche’s contrast, it seems, stands ‘the liar who breaks his word the moment he utters it’, that is, in contemporary philosophical parlance: the wanton (Frankfurt 1988, 11–25). There is, I think, little doubt that Nietzsche draws this contrast in such extreme terms in order to heighten our attraction to the figure of the sovereign individual and our repulsion from the figure of the wanton. But in doing so he raises a puzzle to which R idley (2007) has drawn attention, namely, what is distinctive about the sovereign individual’s promise-making? S ince it is the case that the vast majority of socialized individuals are not wantons, that is, are capable of making and, ceteris paribus, keeping promises, what is it that distinguishes the sovereign individual? N ietzsche ascribes to noble morality, and himself endorses, an account of agency in which one’s deeds are seen as criterial of one’s intentions, beliefs, desires, etc. (see Pippin 2004; O wen 2007; R idley 2007). O n this view, as R idley (2007, 4) points out, ‘if it is essential to a promise’s being made in good faith that the agent intend to act on it, it is essential, too, that – ceteris paribus – he does indeed so act’. If, however, the figure of sovereign individual represents a self-conscious condition of selfmastery, this entails a specific kind of understanding of the ceteris paribus clause, one in which the range of elaboratives to which one can have recourse is limited to reasons that are compatible with the presumption of self-mastery. T here are thus two main types of excuse that could justify the failure to maintain a commitment. T he first is that honouring one’s commitment is causally impossible due to circumstances beyond one’s control; hence, one cannot do what is required. T he second is that keeping one’s promises is normatively impossible due to circumstances beyond one’s control; hence, one must not do what is required. N otice that a further implication of

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this self-understanding is that, even in circumstances where the reasons for breach of one’s commitment are exculpatory, the sovereign individual acknowledges a debt to the addressee of their commitment and, thus, an acknowledgement that reparations may be due even if only in the form of his acknowledgement of his answerability to the other. In relation to this first aspect of the distinctiveness of the sovereign individual, Nietzsche’s position may be aligned with a point that Bernard Williams (1985, 177) was wont to press against ‘the morality system’ whose standpoint he describes as granting no special significance to the thought I did it and hence, as turning ‘our attention away from an important dimension of ethical experience, which lies in the distinction between what one has and what one has not done’, a distinction that ‘can be as important as the distinction between the voluntary and the non-voluntary’. There is, however, another dimension of the sovereign individual’s promisemaking that is also distinctive. This second dimension also hangs on the expressive account of agency to which N ietzsche is committed and can be drawn out by contrasting promises whose success conditions (i.e., the conditions that entitle one to say that the promise has been kept) can and cannot be specified externally (i.e., in advance and independent of the execution of the accomplishment). If I promise to meet you today for lunch in the pub, the success conditions can be specified externally: I have kept my promise if I turn up at the pub in order to eat with you within the relevant time frame. By contrast, if I promise to love and honour you until death us do part, then what counts as keeping this promise cannot be fully specified in advance and independently of a particular way of keeping it. In the former case, keeping my promise simply confirms the presence of my intention; in the latter case, the nature of my intention is revealed in the way that I keep it. W hat is distinctive about the sovereign individual in this respect is that his most characteristic form of promise-making is of the latter type. Indeed, it is precisely the sovereign individual’s self-mastery that grants him the prerogative to engage in this kind of promise-making (Ridley 2007). Another way of drawing the distinction between the two kinds of promise-making invoked here is to specify them in terms of commitments whose character is fully determined by the letter of the law and commitments whose character can only be fully determined by reference to both the letter and spirit of the law (R idley 2007, 10). T his second aspect of the distinctiveness of the sovereign individual helps to illuminate the point once again that N ietzsche is articulating a view of ethical autonomy that contrasts sharply with the ideal of moral autonomy expressed in Kant. T his is so because it directs attention to the fact that the central role of the categorical imperative in Kantian morality entails that if: I find that the maxim of my action cannot be universalized without contradiction, I have identified an absolute prohibition, an unconditional ‘I will not’. I have, in other words, stopped short at a formulable instruction that might be fully obeyed by anyone … The spirit … has gone missing without trace. (Ridley 2007, 12)

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We can put the point like this: ‘morality’ in the sense exemplified by Kant may have liberated itself from the morality of custom as regards to content but it has not done so with regard to form. Moral freedom for Kant, N ietzsche charges, can be articulated in terms of compliance with a list of ‘I will not’s that can be specified in advance and independently of the way in which commitment to them is executed. In this respect, Kant’s philosophy exhibits the characteristic errors of ‘morality’, namely, a failure to acknowledge the expressive character of human agency combined with a stress on the unconditional character of moral imperatives, and does so in a way that leaves it blind to the nature and experience of human freedom as an unformulable process of self-legislation. From Ethical Agency to Political Agency The two key features of the account of ethical autonomy provided by Nietzsche in the sense of distinguishing his position from that of Kant are that it acknowledges both the salience of the thought I did it and the unformulable character of human freedom. To draw out the political analogue of this account, we can turn to Cavell’s reflections on the issue of consent and one’s political responsibility for, and to, one’s polity. Cavell’s starting point is to draw attention to the fact that, within the social contract tradition, consent is not simply a question of obedience but also of membership: W hat I consent to, in consenting to the contract, is not mere obedience, but membership in a polis, which implies to two things: First, that I recognize the principle of consent itself; which means that I recognize others to have consented with me, and hence that I consent to political equality. S econd, that I recognize the society and its government, so constituted, as mine; which means that I am answerable not merely to it, but for it. S o far, then, as I recognize myself to be exercising my responsibility for it, my obedience to it is obedience to my own laws; citizenship in that case is the same as my autonomy; the polis is the field within which I work out my personal identity and it is the creation of (political) freedom. (C avell 1979, 23)

W ith respect to consenting to membership, to what is involved in (any) act of consent, C avell argues that: To speak for oneself politically is to speak for the others with whom you consent to association, and it is to consent to be spoken for by them – not as a parent speaks for you, i.e., instead of you but as someone in mutuality speaks for you, i.e., speaks your mind. Who these others are, for whom you speak and by whom you are spoken for, is not known a priori, though it is in practice generally treated as given. To speak for yourself then means risking the rebuff – on some occasion, perhaps once for all – of those for whom you claimed to be speaking; and it means risking having to rebuff – on some occasion, perhaps once for all – those who claim to be speaking for you. (1979: 27)

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So, on Cavell’s reading of the theory of social contract, consent is the condition of having and exercising one’s political voice. This consent entails both that you speak for, and are spoken for, by others in mutuality. Consequently, the exercise of one’s political voice ‘is at once a means of exploring one’s individuality and one’s community; it constitutes a mode of establishing a form of self-knowledge which is simultaneously a knowledge of others’ (Mulhall 1994, 65). In other words, it is through the exercise of one’s political voice that one discovers (ongoingly) where one stands politically (the limits of that to which one can assent) and how one stands politically in relation to others (the depth and extent of one’s agreement with others). However, we can move this discussion beyond Cavell’s brief reflections on the social contract tradition by noting that political agency in a constitutional democratic polity is oriented around two sets of critical and abstract norms. T he first set is the freedom and equality of the plural citizens of the polity. T hese denote the basic normative commitments intrinsic to democratic citizenship as a practical identity (in Korsgaard’s sense). The second set is comprised of the rule of law (constitutionalism) and popular sovereignty (democracy) which specify the conditions of political legitimacy in a constitutional democratic polity and can be seen as identifying the normative structure of the medium through which we work out the nature (and extent) of our relationship to one another as fellow citizens. It is important to note that the two critical and abstract norms in question are equiprimordial since this equiprimordiality expresses the point that democratic rule which is not constitutional is open to one kind of tyranny objection (the populist tyranny of the majority) and constitutional rule which is not democratic is open to another kind of tyranny objection (the juridical tyranny of alien rule). It is the case that all expressive activity is mediated but, crucially, as C ollingwood pointed out in relation to art, it follows that exemplary agency cannot treat the medium of expression as a mere vehicle for the articulation of thoughts, feelings or emotions (this would require that the determinate character of such states could be specified independently and in advance of the activity of working out what they are), rather agency is expression in and through the resources and requirements intrinsic to the medium via which its work is conducted. This entails that a full account of the expressive character of political agency would need to specify the resources and requirements intrinsic to constitutional democratic rule as the medium of political agency – and I’ll turn to offer at least some specification of such requirements and resources shortly. H owever, the fundamental point to note at this stage is that our orientation to the two sets of abstract and critical norms denote commitments intrinsic to membership in a democratic constitutional polity which are not to be seen as determinate external constraints on our political agency but, rather, as the non-determinate (not indeterminate) internal conditions of such political agency. T his point has two important implications for our current purposes. First, and contra Kant’s ‘nation-of-devils’ argument, it entails that the normative commitments intrinsic to political membership cannot be fully specified in and

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through any set of determinate legal principles. S econd, it offers a response to a fundamental critique of this form of political agonism offered by H ans Lindahl in this volume. Lindahl’s contribution is to give acute expression to the claim that the founding acts of a legal order are alegal – rather than legal or illegal – since they are prior to, and give rise to, the order of legality/illegality, and the consequent argument that political agonism may be seen not only as contestation within a legal order but also over a legal order, that is, the alegal contestation of the ordering of legality and illegality. In developing this argument, Lindahl goes on to claim that alegality in a strong sense entails the possible contestation of any principles, norms or values invoked in the current ordering of legality/illegality and, concomitantly, the possible contestation of any ordering of the reasonable/unreasonable invoked in current political deliberation. This point is crucial for Lindahl and he takes it to entail that the kind of view of political agonism that I have sketched in this section is a weak form of political agonism; one in which struggle is conceived as ineluctable but not irreducible. He bases this claim on Tully’s appeal to the principle of reciprocity – in my terms, the necessary acknowledgement of one’s fellow citizens as free, equal and plural – as distinguishing between reasonable and unreasonable forms of struggle since, from Lindahl’s viewpoint, this appeal appears as an external constraint on political agonism or, as he puts it, one that ‘asserts its reducibility’. If valid this would be a significant criticism; however, Lindahl’s argument is flawed by his failure to note that, in speaking of political agonism, Tully is not addressing any constitutional political order but specifically a democratic constitutional political order; thus the ‘we’ that is performatively constituted and re-constituted in the course of agonistic struggle is not simply to be seen as establishing (albeit never finally) a collective self or plural subject but as establishing such a self or subject characterized by a specific internal normative structure comprised of the two sets of critical and abstract norms outlined above. O nce this point is appreciated, we can see that the principle of reciprocity is not an external constraint on political agonism but, rather, a constitutive condition of (constitutional democratic) political agonism; it is part of the grammar of such political agonism. O f course, since the norms in question are conceived as critical and abstract, it is the case that just what the principle of reciprocity entails – and hence, the ordering of the reasonable/unreasonable – will be a matter of irreducible and ineluctable struggle but, crucially, also that this struggle is itself governed by the critical and abstract norms of freedom, equality and plurality (it is, if you like, the agonistic form of their self-reflection)! Lindahl may object that he wishes to invoke a broader sense of political agonism which applies to constitutional orders in general and not simply democratic ones but, if so, he needs to acknowledge that the diverse normative structures of different types of constitutional order have implications for what it is to engage in political contestation within and over the terms of those orders – and this means recognizing in relation to constitutional democratic polities that certain requirements of public reasoning are constitutive

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conditions of actually counting as engaging in such reasoning at all such as certain grammatical requirements are constitutive conditions of saying anything at all. Let us, then, turn to focus on the resources and requirements of constitutional democracy as a medium of political agency recalling the equiprimordiality of the rule of law and popular sovereignty: T he principle of constitutionalism (or the rule of law) requires that the exercise of political power in the whole and in every part of any constitutionally legitimate system of political, social and economic cooperation should be exercised in accordance with and through a global system of principles, rules and procedures, including procedures for amending any principle, rule or procedure ... T he principle of democracy (or popular sovereignty) requires that, although the people or peoples who comprise a political association are subject to the global constitutional system, they, or their entrusted representatives, must also impose the global system on themselves in order to be sovereign, and thus for the association to be democratically legitimate. T he sovereign people or peoples ‘impose’ the constitutional system on themselves by means of having a say through exchanging reasons in democratic practices of deliberation, either directly or indirectly through their representatives, usually in a piecemeal fashion by taking up some subset of the principles, rules and procedures of the system. These democratic practices of deliberation are themselves rule governed (to be constitutionally legitimate), but the rules must also be open to democratic amendment if they are to be democratically legitimate. (T ully 2002, 205)

Our orientation to these critical and abstract norms specifies the shared mode of our problematization of our political identity. However, acknowledging their critical and abstract character means recognizing that ‘they are not agreed to and applied directly in particular cases’ (Tully 2002, 205). Rather, there are diverse ways of understanding these norms and the respective weightings of them in any given case. Notice that what Tully has termed ‘the Moebius strip’ character of this account of political legitimacy entails that the distinction between ‘constitutional politics’ (or, let us say, the politics of founding and re-founding) and ‘ordinary politics’ is a matter of degree and not of kind. Precisely because the constitutional rules can be adapted en passant through both modes of democratic activity and of judicial activity, it is quite wrong – on this view – to stipulate a distinction of kind. Yet such a distinction is invoked by thinkers like Rancière in terms of the contrast between police and politics, and in this volume it is to be found in the argument of D eranty and R enault when, for example, they write: How can a challenge to the very rules of a ‘game’ be seen as being ‘agonistic’ only in the banal sense of competitive performance? A preliminary condition of any competition is acceptance of the rules and notably of who qualifies to play the game. Challenging the rules of the games is always something more radical and more confrontational, more ‘antagonistic’.

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The thought expressed by this kind of distinction between contest within the rules and contest over the rules finds natural expression in the context of games like chess in which it is broadly right to say that this distinction picks out two different kinds of activity or types of contest – and a political variant on this would be a version of legal constitutionalism which viewed the constitution as analogous to the rules of chess and asserted a distinction between democratic politics (as what occurs within the rules of the constitution) and constitutional super-politics (as what occurs when these rules are challenged). But this is an implausible view precisely because (i) the activity of politics extends across both (a) contests within the current constitutional rules and (b) contests over those rules, and (ii) because there is no sharp line between (a) and (b). In this respect, the attempt by D eranty and Renault to distinguish their proposed ‘antagonistic’ politics from political agonism depends on misconstruing the nature of political agonism by adopting an incoherent regulist picture of norms. T he precise nature of this incoherence can be elaborated by attending to constitutional democratic rule before turning to democratic constitutional rule. Agonism, Civil Liberties and the Rule of Law To focus on ‘the rule of law’ dimension of constitutional democratic rule, let us start with a preliminary conceptualization of law as the (more or less codified) public articulation of judiciable rules/norms of conduct within a regime of government. N ow consider what, following Brandom, may be called a regulist picture of law composed of two features. First, on this account: acts are liable to normative assessment insofar as they are governed by propositionally explicit prescriptions, prohibitions, and permissions. T hese may be conceived as rules, or alternatively as principles, laws, commands, contracts, or conventions. Each of these determines what one may or must do by saying what one may or must do. (Brandom 1994, 19)

S econd, it is rules all the way down, i.e., the interpretation (application) of rules is itself determined by explicit rules. O n this picture, we can distinguish as a matter of kind between activity within rules and contests over rules. However, as Brandom points out, the problem with this regulist picture of rules is that the correctness of the application of a rule is a function of its conforming to a further rule, a rule of application, which Wittgenstein calls an ‘interpretation’ (Deutung). In rejecting the regulist picture, W ittgenstein offers a regress argument: determining whether a rule has been applied correctly requires recourse to an interpretation, but to determine whether the interpretation is applied correctly requires recourse to a further interpretation, etc. T he moral of this critique of regulism is spelt out in Wittgenstein’s Philosophical Investigations:

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T his was our paradox: no course of action could be determined by a rule, because every course of action can be made out to accord with the rule. T he answer was: if everything can be made out to accord with the rule, then it can also be made out to conflict with it. And so there would be neither accord nor conflict here. It can be seen that there is a misunderstanding here from the mere fact that in the course of our argument we give one interpretation after another; as if each one contented us for at least a moment until we thought of yet another standing behind it. W hat this shows is that there is a way of grasping a rule which is not an interpretation, but which is exhibited in what we call ‘Obeying the rule’ and ‘going against it’ in actual cases. (Cited in Brandom 1994, 20)

In other words, use of explicit rules can only be grasped against a background of practices of applying rules (acting according to norms) that are not and cannot be codified as explicit rules: ‘Absent such a practical way of grasping norms, no sense can be made of the distinction between correct and incorrect performance – of the difference between acting according to the norm and acting against it. N orms would then be unintelligible’ (Brandom 1994, 21). Thus, the first point to make concerning the conceptualization of law is that the articulation and implementation of law – and hence the intelligibility of the rule of law – is that this presupposes the ‘ethical’ formation of citizens as legal subjects who can grasp, extend and apply explicit rules in virtue of such formation. One reason why this point matters emerges if we reflect on such ‘explicit rules’. W e can note the following: 1. If a general rule is to be sufficiently determinate to guide action, it needs to integrate some consideration of a [range of] standard/usual/normal case[s] into its formulation. 2. N o general rule can ever integrate consideration of all possible cases that may arise in relation to it. G iven 1 and 2, such a rule may always be viewed under either of two aspects: (a) T he rule is complete but it is not fully determinate in respect of its action-guiding direction in relation to non-standard cases. (b) T he rule is incomplete precisely because it offers determinate actionguiding direction only in relation to standard cases. C onsequently: (a*) T he rule requires context-sensitive application in order to enhance it through supplementation. (b*) T he non-standard case cannot be judged on the basis of the rule (since the applicability of this rule to this case is open to question) so must be   I am grateful to Jim Tully for helping to clarify this point to me.

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judged through the deployment of the same sensitivities (dispositions and capacities) that are exercised in the formulation of the rule. The key point to note here is that, although for many practical purposes, the application of a rule to a given case as an example of the type of case integrated into the formulation of the rule will not be contested, the designation of any given case as standard or non-standard cases is intrinsically defeasible – and hence a/a* collapses into b/b* (this is visibly the case in the context of common law but the point applies more generally). T hus the distinction between contests within a rule and over a rule as a distinction of kind collapses. A nother way of putting this point is to say that a subject of law is free to call into question a given rule in relation to a given case and, if successful, to modify the rule – and that such agonistic freedom is integral to the possibility of legal subjectivity and of the rule of law as a medium of expression of political agency. More specifically, this view entails that the rule of law is to be seen not only in terms of the equality of citizens in and before the law, but also in terms of the equality of citizens to contest the laws to which they are subject. H owever, to draw attention to the basic (ontological) form of civic freedom in the legal medium is not yet to say much about this relationship since this basic form of civic freedom is compatible with a condition of legal domination, that is, a condition in which those subject to the legal order in question do not have the effective capacity to contest the legal order to which they are subject, that is to demand that the regime – or some part of it – justify its current mode of government in terms acceptable to those subject to it or change its mode of government. T he lack of such an effective capacity does not entail that these legal subjects are not free in the relevant ontological sense; it does, however, entail that their powers of freedom are weak in the salient political sense – and, hence, on the view proposed above, it entails that the rule of law does not obtain in such conditions precisely because citizens lack the capacity to effectively challenge the laws to which they are subject. O ne reason why this point matters is that it directs our attention to the relationship of civic freedom and civil liberties. In terms of the basic form of civic freedom in the legal medium, we can say that this freedom is expressed in terms of the calling into question of a legal rule – say, the identification of the legal concept of ‘voter’ with the concept of ‘property-owning male’ – in a way that (a) aims to re-articulate the norm (say, by degendering the concept of voter) as (b) a new rule that is capable of (more or less) codified public expression. What is the relationship of civil liberties to such civic freedom? W ell, it appears that civil liberties in the form of constitutionally protected rights are neither necessary nor sufficient conditions of the effective exercise of civic freedom. T hat they are not necessary conditions is demonstrated by the historical successes of movements composed of groups lacking such rights to transform a regime to which they are subject by, for example, acquiring such   I owe this point to Jim Tully.

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liberties (e.g., the C hartists, the suffragettes, the US civil rights movement). T hat they are not sufficient is illustrated by the fact that groups possessing such rights may – and do – fail to contest effectively the governmental regime to which they are subject (as radical critics from Marx on have noted). Yet while civil liberties are not necessary or sufficient conditions of civic freedom, they may helpfully be conceived as enabling conditions for the effective exercise of civic freedom in the sense that, other things being equal, possession of such rights will increase the chances of citizens being able to effectively contest the regime of government to which they are subject, where effective contestation may range from making the regime (or some part of it) more accountable and responsive to more radical transformations of its character. It should be noted, moreover, that civil liberties are not simply enabling conditions in the sense that they help to secure conditions in which, for example, freedom of speech or of association can be exercised without being subject to the arbitrary use of legal power on the part of the state, but also in the sense that civil liberties are themselves an important element of the political acknowledgement of citizens as free, equal and plural; that is, civil liberties as codified public expressions of norms of freedom and equality can be conceived as both ways of stabilizing (to some degree) the expressive range of action oriented to the freedom and equality of others, and as a site of contestation of these norms in which, through legal cases, for example, the character of the civil liberties are elaborated, developed and extended in unpredictable ways. C ivil liberties, in other words, are essential to the rule of law in a twofold sense: on the one hand, they are a public acknowledgement of the equality of citizens in and before the law, and, on the other hand, they are conditions for enabling the freedom of citizens as equal and plural in challenging effectively the laws to which they are subject. Agonism, Democracy and Public Reason In turning to the democratic dimension of constitutional democracy, we return to the issue raised earlier in relation to Lindahl, namely, the role of the principle of reciprocity in distinguishing reasonable and unreasonable forms of public deliberation. T hus, on the account of political legitimacy proposed, we can say both that the way in which we work out the meaning of our freedom and equality as citizens is through our practical orientation to the norms of constitutionalism and democracy in our debates within and over the terms of the political association and that those debates will themselves be structured by the exchange of public reasons, where public reasons refer to reasons that express an acknowledgement of one’s fellow citizens as free and equal members of the political association. It is the latter of these points which is the focus of this section. What is it to speak of public reasons as reasons that express an acknowledgement of one’s fellow citizens as free, equal and plural? This means most basically that all citizens have an equal opportunity to advance public reasons concerning

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the character of their civic relationship to one another, and to their trusted and accountable representatives all the way up or down. But it also means that the reasonable acceptance or rejection of a claim expressed as a public reason makes a difference to the course of the deliberation through which we shape and reshape the content of our shared identity as citizens. If this latter condition is not met, then the person accepting or rejecting the public reason in question is not being treated as an equal and a variety of forms of civic protest and disobedience will be justified. As Laden (2001, 129) argues ‘the reasonableness of deliberation depends on the relevance of uptake of proffered reasons’ and further: Two central ways in which uptake can be rendered irrelevant are by ignoring it or assuming it. Ignoring uptake requires having the power to render rejection of a reason irrelevant. In such cases, we exclude others from our deliberations. Their uptake of our reasons has no effect because their rejection could have no effect. Assuming uptake requires being blind to the fact of deep diversity and how it shapes the plurality of political deliberation. In such cases, we assimilate others to our own perspective. We take for granted that because we find a reason authoritative, they will too. (Laden 2001, 129)

Consider in this respect two types of social exclusion: the first involves the imposition of a demeaning identity and the second simply the imposition of an identity (Laden 2001, 136). T he former type straightforwardly undermines the possibility of reasonable political deliberation. S uch deliberation requires not only that we enjoy sufficient self-respect to regard ourselves as political equals (which may be undermined by the internalization of demeaning stereotypical views of oneself as, say, a black person) but also that we see our fellow citizens as political equals: If Whites in the United States regard blacks in the United States as conforming to racist stereotypes, then these attitudes will be sufficient to undermine the preconditions for reasonable political deliberation. Here the problem will be not one lack of black selfrespect, but of white disrespect for blacks. (Laden 2001, 145)

H owever, even the latter type of social exclusion undermines the conditions of reasonable political deliberation in that imposing an identity on someone is a way of determining which claims have normative authority for them independent of their own view of these claims and thus involves a denial of their status as political equals, that is, ‘as co-authors with us of the nature of our political relationship’ irrespective of whether the imposed upon would endorse the identity in question (Laden 2001, 149). In stressing this point, Laden is directing attention to the role of constructive social power in the fabrication and reproduction of our practical identities, both our civic identity and our reasonable non-political identities. In this context, civic freedom takes the forms of the diverse rhetorical ways in which reasons can be engendered, proposed and exchanged and it is not only the case that the protection of civic freedom provides a basis for reasonable political deliberation. W e may also note that the experience of direct or indirect

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participation in these kinds of civic struggles helps to generate a new kind of second-order citizen identity appropriate to free, open and pluralistic forms of association. O ne comes to acquire an identity as a citizen through participation in the practices and institutions of one’s society, through having a say in them and over the ways one is governed. In complex contemporary political, legal, cultural and economic associations, one of the fundamental ways that this process of citizenization occurs is through participation in the very activities in which the norms of mutual recognition in any subsystem – say the legal field – are discussed, negotiated, modified, reviewed, and questioned again. The partners involved develop an attachment to the polity precisely because it allows them to engage in this, second-order free and democratic activity. My aim in this chapter has been to sketch out and elaborate the implications of a view of political agonism which gives centre stage to an expressivist account of political agency. I have sought to show, drawing particularly on the work of James T ully, that such an expressivist version of political agonism entails attending to constitutional democracy as the medium of political agency and that approaching constitutional democracy in this way provides a way of re-conceptualizing democratic citizenship that integrates accounts of the rule of law, of civil liberties and of public reason. W hile this chapter necessarily has a somewhat programmatic character, I have also sought to show how it offers cogent responses to the legal formalism of the criticisms offered by Lindahl, and the political regulism of the critique proposed by D eranty and R enault. Bibliography Brandom, R . (1994), Making it Explicit (C ambridge, MA : H arvard University Press). C avell, S . (1979), The Claim of Reason (O xford: O xford University Press). C ollingwood, R .G . (1963), Principles of Art (O xford: O xford University Press). Frankfurt, H. (1988), The Importance of What We Care About (C ambridge: C ambridge University Press). Kant, I. (1952), Critique of Judgement, trans. J.C. Meredith (Oxford: Oxford University Press). Laden, A .S . (2001), Reasonably Radical: Deliberative Liberalism and the Politics of Identity (Ithaca, N Y: C ornell University Press). Lovibond, S . (2002), Ethical Formation (C ambridge, MA : H arvard University Press). Mulhall, S . (1994), Stanley Cavell (O xford: O xford University Press). N orval, A . (2007), Aversive Democracy (C ambridge: C ambridge University Press). O wen, D . (1995), Nietzsche, Politics and Modernity (London: S age). O wen, D . (2007), Nietzsche’s Genealogy of Morality (London, A cumen).

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Owen, D. and J. Tully (2007), ‘Redistribution and Recognition: Two Approaches’ in A .S . Laden and D . O wen (eds) Multiculturalism and Political Theory (C ambridge: C ambridge University Press). Pettit, P. (1999), ‘Contestatory Democracy’ in I. Shapiro and C. Hacker-Cordon (eds) Democracy’s Value (C ambridge: C ambridge University Press). Pippin, R. (2004), ‘Lightning and Flash, Agent and Deed’ in O. Höfee (ed.) Friedrich Nietzsche, Genealogie der Moral (Berlin: Akadamie Verlag). Ridley, A. (2007), ‘Nietzsche’s Intention: What the Sovereign Individual Promises’, unpublished manuscript. Tully, J. (2002), ‘The Unfreedom of the Moderns in Relation to their Ideals of Constitutionalism and Democracy’, Modern Law Review 65:2, 204–28. Waldron, J. (1998), Law and Disagreement (O xford: O xford University Press). W illiams, B. (1985), Ethics and the Limits of Philosophy (London: Fontana).

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C hapter 5

Staging Dissensus: Frederick Douglass and ‘We, the People’ Jason Frank

A ny interpretation of the political meaning of the term people ought to start from the peculiar fact that in modern European languages this term always indicates also the poor, the underprivileged, and the excluded. T he same term names the constitutive political subject as well as the class that is excluded – de facto if not de jure – from politics. (A gamben 2000, 29)

The aporia of ordinary language that Agamben positions at the heart of ‘the political meaning of the term people’ goes strangely unacknowledged in most theoretical discussions of popular sovereignty, even though these discussions generally construe the people as the very foundation of democratic legitimacy. In the familiar oppositions that govern most contemporary democratic theory – will and reason, legitimacy and legality, democracy and constitutionalism, majoritarianism and individual rights, the liberty of the A ncients and the liberty of the moderns – the people is usually equated with the first half of each pairing, and the theoretical difficulty is taken to be how best to reconcile the opposing logics. In what follows, I argue, through an exploration of speeches and essays by the radical American abolitionist Frederick Douglass, that we can learn important lessons about the peculiarities of democratic claims-making by understanding the people as a form of political subjectification enacted through the simultaneous claiming of the two poles A gamben describes: the people as both the legitimating ‘fount of all political power’ and that which lies beyond its authorizing claims. Unlike Agamben (2000, 35), however, I do not believe this internal division need culminate in a ‘biopolitical plan to produce a people without fracture’. To the contrary, Douglass’ speeches transmit an understanding of the people as a claim enacted by what Jacques Rancière (1998, 1–19) describes as ‘the part that has no part in the name of the whole’. My reading of Douglass is therefore inspired by Rancière’s (2004, 7) insight that ‘the fact that the people are internally divided is not … a scandal to be deplored … [so much as] the primary condition of the exercise of politics’. Douglass enacted this dissensus through his invocation of a rhetorical, a constitutional and a virtual ‘We, the People’. I will focus my comments primarily on Douglass’ most celebrated address – ‘The Meaning of July Fourth for the Negro’, delivered July 5, 1852, before a largely white anti-slavery society in Rochester, New York. In it, Douglass

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exemplified a form of political subjectification that I call a constituent moment. Constituent moments enact felicitous claims to speak in the people’s name, even though those claims explicitly break from established rules and procedures for representing popular voice. T he dilemmas of authorization that spring from these moments appear both in the formal political settings of constitutional conventions and political associations and in the relatively informal political contexts of crowd actions, political oratory and literature. While having no authorization to speak for the people, D ouglass – an escaped slave, one sans part – nonetheless claimed to speak on their behalf. Douglass (2003b [1881], 375) made his claim, moreover, from an indeterminate or paradoxical position, insofar as he spoke at once as a slave – representing, in his words, ‘a people long dumb, not allowed to speak for themselves’ – and as a part of a political collectivity as yet without social determination. T his rhetorical positioning extracted D ouglass from dominant categories of identification and classification (escaped African slave, racially determined or historically monumental invocations of the A merican people), while simultaneously setting the stage for a new political subject’s emergence. In his Fourth of July address Douglass both spoke from outside of the people he addressed and claimed to speak in their higher name. In doing so, Douglass’ address reveals how democratic claims made by ‘the part that has no part in the name of the whole’ reiterate in everyday rhetorical contexts dilemmas of popular authorization that democratic theorists have typically isolated in founding moments. ‘How can a people democratically give birth to itself as a political subject?’ becomes ‘Who are they – the uncounted, the subordinate, the low – to make claims at once against and on the part of the whole?’ In both instances the grounds of authorization are absent, and the contingency underlying the existing system of rule is revealed; in both cases authorization arrives too late, only after the fact of its proclamation (see D errida 1986). Throughout his work Douglass (2006 [1852], 494) claims a clear continuity between the revolutionary events commemorated by the Fourth of July holiday – the events enacted by what he describes as ‘agitators and rebels, dangerous men’ – and his own struggle against the ‘organization of slave power’. He establishes this connection, however, in a manner generally overlooked by scholars who focus solely on analyzing the manifest content of Douglass’ speech – emphasizing, for example, his appeal to natural law, liberalism, anti-slavery constitutionalism or millennial providentialism – while neglecting the dramatic staging of the address itself. W idely accepted interpretations of D ouglass that focus upon his brilliant employment of immanent critique, his rhetorical appeal to common principles – ‘that all men are created equal’, for example – in order to critique existing political practice wrongly presume an equality of the speaking subject or a unified space of representation. They neglect the dramatic break implied by the prior staging of these (only then) recognizable claims. Rancière’s (1998, 43–60) work on aesthetics and politics rigorously attends to this problem of staging, which he describes as a political poetics. By emphasizing the absence of such an equal space of communicative exchange, Rancière’s work

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illuminates historical aspects of Douglass’ speech that scholarly attempts to slot it into familiar ideological paradigms have obscured. In the Fourth of July address Douglass staged what Rancière (1998, 56) characterizes as the ‘demonstration proper to politics’, which ‘is always both argument and opening up the world where argument can be received and have an impact – argument about the very existence of such a world’. One of Douglass’ contemporaries, the poet James Russell Lowell (cited in Colaiaco 2006, 24), indicated this demonstrative dimension of Douglass’ ‘argument’, its prior ‘opening up the world’, when he wrote that ‘the very look and bearing of D ouglass are an irresistible logic against the oppression of his race’. Such staging precedes and enables the arguments that Douglass offers in his famous address; it enacts a prior aesthetic demonstration that is necessary for the audience to properly ‘hear’ the arguments of Douglass’ speech as arguments that have a claim on them; it ‘sets the conditions for its own proper reception’ (Keenan 2003, 52). The demonstration must first convert them into the kind of people who could themselves retrospectively authorize such a claim. T he emphasis on staging shifts the narrative focus of revolutionary commemoration invoked in Douglass’ address from juridical rights incompletely applied to the people incompletely enacted, from legal recognition to the democratic struggles that demand them. Thus understood, Douglass’ claims are much more radical and less easily assimilable than familiar liberal narratives of progressive constitutional development allow. Taking orientation from Douglass’ example does not mean retrospectively affirming an underlying (or overlapping) principled consensus to adjudicate competing claims, but being more receptive to the emergent claims that fall outside of this consensus, more attentive to how accepted principles may work to actively inhibit such claims. Douglass (2006 [1852], 494) was deeply suspicious of retrospective appeals to common principle that animated the forces of reconciliation and solace, noting, for example, how the ‘cause of liberty may be stabbed by the men who glory in the deeds of [the] fathers’. In contrast to familiar self-congratulatory narratives of historical reconciliation, D ouglass offers a narrative of the A merican past that equates its full comprehension with ever-emergent forms of transformative democratic action and ‘unsettlement’. Unlike familiar, dialectical narratives of unfolding universal rights, the enactment and re-enactment of the people, as presented by D ouglass, is not uniformly linear but rather a punctuated and unpredictable history of contentious democratic claims-making – a changed emphasis with distinct theoretical consequences explored below. The Rhetorical ‘We, the People’ Douglass’ Fourth of July address, commonly celebrated as America’s greatest abolition speech, was delivered before five to six hundred people in Rochester’s Corinthian Hall, a neoclassical theatre built in 1849, and Rochester’s premier lecture hall. Douglass was asked to deliver the address by the Rochester Ladies’ Anti-Slavery Society, and he was prominently billed as the featured speaker in

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placards advertising the event. H is address was preceded by an opening prayer and the customary reading of the D eclaration of Independence by S yracuse preacher Robert R. Raymond. What followed Raymond’s somber invocation of the nation’s founding principles, however, was an unexpected break from the established protocols of epideictic Fourth of July address (Jasinski 1997). Instead, Douglass – the era’s most prominent black abolitionist – radically re-appropriated America’s revolutionary topoi (Bacon 1998), and, doing so, tapped a rhetorical counter-tradition that positioned the insurgent or escaped slave as the inheritor of America’s ‘unfinished revolution’. Douglass navigated this speech situation’s peculiar demands through a careful, and to his audience no doubt shocking, series of rhetorical maneuvers. His address enacted a powerful evasion of his audience’s doctrine of assumptions, refusing the rhetorical commonplace and the obligatory commemoration of the ‘nation’s jubilee.’ Rather than monumentalizing the revolutionary generation’s deeds, D ouglass provocatively suggested these deeds had been drained of their significance through the very acts of ceremonial repetition he was called on to perform: ‘The causes which led to the separation of the colonies from the British crown’, Douglass (2006 [1852], 494–95) remarks in his opening, have never lacked for a tongue. They have been taught in your common schools, narrated at your firesides, unfolded from your pulpits, and thundered from your legislative halls, and are as familiar to you as household words … the American side of any question may be safely left in A merican hands.

Douglass’ provocative separation of his own perspective from ‘the American side’ marks a clear break from traditional Fourth of July oratory while also, eventually, claiming his own inheritance of the R evolution and of the people it declares. T hrough this rhetorical doubling, D ouglass transformed the meaning of the Revolution from a ‘rational, orderly, natural, conservative’ and, most importantly, completed event, to one ‘demanding sacrifice, unfinished’ (Jasinsky 1997, 78). Douglass broke with the anticipated repertoires of Fourth of July address most dramatically by refusing the traditional identification of speaker and audience in a rhetorical invocation of a national and unified ‘we’ His use of apostrophe, moreover, takes this denial beyond the scope of his assembled audience to a wider if undefined public. While opening his speech with an appeal to his ‘fellow citizens’, Douglass quickly moves to remark on the injustice hidden in this falsely unifying gesture. By establishing his own exclusion from the nation’s annual festival of self-regard, D ouglass sets himself apart from his audience by establishing a sharp boundary between ‘you’ and ‘me’. He thus rejects the ‘good people’s’ celebration of themselves, and strikes an unexpectedly discordant note: The purpose of this celebration is the Fourth of July. It is the birthday of your National Independence, and of your political freedom. T his, to you, is what the Passover was to

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the emancipated people of God. It carries your minds back to the day, and to the act of your great deliverance. (Douglass 2006 [1852], 496)

Douglass’ repeated dis-identification creates a rhetorical perspective from which the audience can see themselves anew – as a chosen people, yes, but internally divided, haunted by disavowed violence or injustice. Douglass (2006 [1852], 496) not only emphasizes his inability to partake in the national celebration, but suggests that the very cause and animating principles that his audience celebrates are the basis of his exclusion: ‘The sunlight that brought life and healing to you, has brought stripes and death to me. This Fourth of July is yours, not mine. You may rejoice, I must mourn.’ In refusing the anticipated assertion of a rhetorical commonplace, common principles, or a unitary ‘we’, Douglass also called attention to the power organizing the speech situation itself, thereby staging the absence of a space of equal communicative exchange. D ouglass elaborated on his frequently reiterated understanding of ‘the peculiar relation subsisting between me and the audience I am about to address’ in an oration given the following year to another largely white antislavery audience in New York. I am a coloured man, and this is a white audience. No coloured man … can stand before an A merican audience without an intense and painful sense of the immense disadvantage under which he labours … The ground which a coloured man occupies in this country is every inch of it sternly disputed … It is, perhaps, creditable to the American people … that they listen eagerly to the report of wrongs endured by distant nations … But for my poor people enslaved – blasted and ruined – it would appear that A merica had neither justice, mercy nor religion. She has no scales in which to weigh our wrongs – she has no standard by which to measure our rights. Just here lies the difficulty of my cause. It is found in the fact that … we may not avail ourselves of admitted American principles … Our position is anomalous, unequal, and extraordinary. (Douglass 1982 [1853] 424–25)

D ouglass connects this immeasurable and extraordinary injustice to an incapacity of speaking and hearing. The absence of ‘scales’ and ‘standard’ to measure the wrongs of a ‘blasted and ruined’ people, while facilitating the moral orientation toward other peoples, places these extraordinary anomalies below the threshold of recognition and justice and renders A frican A mericans incapable of having their claims heard as claims. T hey have phônê but not logos (R ancière 1998, 21–42). T here are no common standards here capable of adjudicating between competing claims, no unitary space of representation; their wrongs cannot be resolved through political deliberation or judicial procedures. The ‘peculiar relation’, the ‘anomalous, unequal, and extraordinary’ position, enacted in Douglass’ address is a consequence of being denied a place from which a claim can be made on behalf of ‘admitted American principles’. If Douglass cannot avail himself of these principles, if he cannot speak from within or among the

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unified position of ‘we, the people,’ then from where does he speak? What is the necessary supplement for registering his claims as claims? T he most obvious answer would be to say – and D ouglass himself at times does say – that Douglass speaks on behalf of the enslaved, advocating ‘for a people long dumb, not allowed to speak for themselves’. Douglass was widely proclaimed, as stated in the New York Times in 1872, ‘the representative orator of the coloured race’ (cited in Colaiaco 2006, 5). But Douglass’ understanding of race – a lively and controversial topic in the scholarship on D ouglass – is inseparable from the relationship of the part with no part in relation to the whole. D ouglass refused to speak from a racially unmarked position, and railed against those who did: I utterly abhor and spurn with all contempt possible that cowardly meanness … which leads any coloured man to repudiate his connection with his race … as a coloured man I do speak – as a coloured man I was invited here to speak – and as a coloured man there are peculiar reasons for my speaking. The man struck is the man to cry out. I would place myself – nay, I am placed – among the victims of A merican oppression. I view the subject from their standpoint – and scan the moral and political horizon of the country with their hopes, their fears, and their intense solicitude. (Douglass 1982 [1853], 428)

For D ouglass, race was a consequence of shared experiences of oppression, and of shared struggle against oppression: ‘The man struck is the man to cry out.’ Douglass claimed to speak from a particular position, or perspective, but the position could only be understood as a relation to the whole that excluded it. For Douglass, there was no speaking position wholly removed from the hegemonic, white ‘we, the people’ that oppressed and defined him, but neither could he speak from this position. Although Douglass rejected the ‘mystic racial chauvinism’ that emerged alongside racialized nineteenth-century conceptions of the nation, it is misleading to simply ascribe to him a universalist position. S cholarly attempts to position Douglass as the principal representative of the ‘assimilationist’ tradition in A frican A merican political thought (Boxhill 1992–3) or who criticize him as nineteenth-century America’s greatest example of ‘racial liberalism’ (Mills 1999, 124) elide the complexity of Douglass’ rhetorical claims, reducing them to a set of ‘positions’. That complexity, and arguably the source of those claims’ power, lay in Douglass’ refusal of the opposition between racial particularism (a standpoint epistemology) and the supposed unmarked universalism of racial liberalism. Douglass’ staging of dissensus refuses the terms of what Bernard Boxhill (1992–3) has called the ‘two traditions in African American political philosophy’. The staging of Douglass’ ‘we, the people’ is revealed in what Eddie S. Glaude (2000, 115) has aptly described as Douglass’ ‘ambiguously rich notion of we’ess’. Douglass’ rhetorical ‘we, the people’ highlights its politically constructed character. H e denies his public the captivating self-certitude of a falsely unifying we, highlighting the we as a fragile and highly contested political achievement. D ouglass refused to simply proclaim a we on behalf of an already pre-constituted

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political identity, whether blacks or the constitutionally organized people. Douglass instead spoke on behalf of a people that was not … yet. Doing so, he illuminated the politically performative dimension of any claim to speak on behalf of a ‘we’. The ‘we’, as Bernhard Waldenfels argues, never speaks in its own name; a we can never say we – the ‘we’ is always a question of ‘drawing a line’ and ‘summoning a collective’ (see Christodoulidis 2007, 200–206). The political valence of this ‘summoning’ is all the more acute when the ‘we’ invoked is understood, as it was for Douglass, as ‘an original supreme Sovereign, [an] absolute and uncontrollable, earthly power’, and when the claimant has no place within its authorizing claims. Douglass’ attachment to the authority of ‘we, the people’ along with his regular invocation of the tropes of A merican exceptionalism, have led many readers to contain the radicalism of his claims within a consensual or dialectically unfolding liberalism. Along with Martin Luther King’s (1963) ‘Letter from the Birmingham City Jail’, Douglass’ Fourth of July address is commonly invoked as a paradigmatic instance of immanent critique in the dissenting traditions of A merican political thought. T he address is held up as a powerful example of what Michael W alzer calls ‘connected criticism’. A connected critic, Walzer (1988, 19) explains, ‘starts, say, from the views of justice embedded in the covenantal code … on the assumption that what is actual in consciousness is possible in practice, and then he challenges the practices that fall short of these possibilities.’ According to this approach, D ouglass exposes a contradiction between the universality of the principle and the historical particularity of its application. He affirms the underlying principles that are said to animate the ‘nation’s jubilee’ – the Declaration’s ‘all men were created equal’, for example, or the righteous morality of a humanistic Christianity – and then exposes the hypocrisy of declaring these principles in a country that accepted the conversion of black men, women and children into slaveholder’s property. Some find in this reason to celebrate Douglass; others find in it reason to critique how his speeches reaffirmed an ideological hegemony even as they called for dissent – how, in Sacvan Bercovitch’s (1993, 50) words, they ‘enlisted radicalism itself in the cause of institutional stability’. T here is much textual support for this interpretation. A s D ouglass famously declares in the Fourth of July address, to the slave: your celebration is a sham … your shouts of liberty and equality, hollow mockery; your prayers and hymns mere bombast, fraud, deception, impiety and hypocrisy – a thin veil to cover up crimes which would disgrace a nation of savages. T here is not a nation on the earth guilty of practices, more shocking and bloody, than are the people of these United States, at this very hour. (Douglass 2006[1852], 498)

A fter experiencing the force and precision of such devastating claims, it seems all too delicate to reduce these hypocrisies to mere ‘national inconsistencies’, but Douglass again and again affirms the proclaimed principles of white Americans as the basis of his critique of their failure to live up to these principles. A s he writes in his second autobiography My Bondage, My Freedom: ‘The slaveholder … never

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lisps a syllable in commendation of the fathers of this republic … without inviting the knife to his own throat, and asserting the right of rebellion for his own slaves’ (Douglass 2003a [1855], 65). However, he also emphasizes the absence of ‘scales in which to weigh our wrongs’, and ‘the fact that we may not avail ourselves of admitted American principles’. W hile the emphasis on immanent critique is true as far as it goes, and it surely explains some of the persuasive power of Douglass’ rhetoric, it also overlooks the under-authorized performativity of his claims. The assimilationist or ‘racial liberal’ interpretation of Douglass neglects the extent to which his enactment of the people would radically change the very people in whose name it is enacted. It neglects the complicated position from which Douglass spoke, as well as the explicitly thematized inaudibility of his speech. N ot only does D ouglass return to the contested and constructed character of the authorizing ‘we’, he also emphasizes that before any substantive appeal to principle can be claimed, the claim must first be heard as a claim. Douglass (1999a [1853], 264) insists time and again that he is not asking for ‘mercy’ or ‘pity’, but to be heard as one with a claim – that is, one making ‘an inconsiderate, impertinent and absurd claim to citizenship’. As he said in an 1853 address on behalf of the ‘Coloured Convention’: N otwithstanding the impositions and deprivations which have fettered us – notwithstanding the disabilities and liabilities, pending and impending – notwithstanding the cunning, cruel, and scandalous efforts to blot out that right, we declare that we are, and of right ought to be American citizens. W e claim this right, and we claim all the rights and privileges, and duties which, properly, attach to it. (Douglass 1999a [1853], 264)

Approaches that focus solely on the substance of Douglass’ claims (for example, his frequent invocation of natural law) do not focus enough on the position from which he was making them, or on the staging of the claims themselves. Who is he, after all, to be speaking for them? In the Fourth of July address Douglass acted as both a subject who did not have the rights that he had (his division between you and me), and one who had the rights that he had not (in his very speaking of these claims). Doing so, he staged the logic of dissensus: he ‘put two worlds in one and the same world’ (Rancière 2004, 6). In the Fourth of July address, and in many of Douglass’ other speeches and texts from this volatile period leading up to the Civil W ar, the centrally reiterated, radical, and unavoidable claim is that D ouglass better represents the destiny of the people he at once addresses and is excluded from than do their official representatives in Congress, their spokesmen in political parties or the constitutional authority of the S upreme C ourt itself. It is in this sense that Douglass’ address exemplifies a constituent moment.

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The Constitutional ‘We, the People’ The dilemma of popular authorization navigated in Douglass’s rhetorical invocation of the ‘we’ is also central to his broad understanding of constitutional authorization, or what I will characterize, following Larry Kramer’s (2004) recent work, as Douglass’ popular constitutionalism. Douglass (1999c [1857]) addressed this dilemma most explicitly in a speech he gave shortly after Chief Justice Roger B. Taney’s infamous (1857) Dred Scott decision, which stated that all people of A frican descent, both free and slave, were not and could never be fully enfranchised citizens of the United S tates. T he decision effectively overturned the 1820 Missouri C ompromise, which had prevented the further spread of slavery into northern and western states, and thereby legitimated the extension of slavery throughout the (soon-to-be-divided) union. It was not only the constitutionality of the Missouri C ompromise that was at issue, then, but the threatened nationalization of slavery. Douglass’ response to this disastrous decision not only took issue with the particulars of Taney’s constitutional interpretation (in particular, Taney’s narrowly juridical understanding of the preamble’s invocation of ‘We, the People’), but also, and relatedly, questioned the judicial supremacy of the S upreme C ourt itself. T apping revolutionary traditions of popular constitutionalism, D ouglass refused to acknowledge the final authority of this latest judicial attempt to ‘settle’ the slavery question. Douglass, like many black abolitionists who resisted William Lloyd Garrison’s anti-constitutionalism, fully understood the invariant politics of constitutional interpretation. A s D onald G . N ieman (1991, viii) writes, many nineteenth-century ‘black leaders understood that the general language of the constitution made it a malleable document whose meaning was subject to redefinition through political and legal processes, that the polity was, in a sense, an ongoing constitutional convention’. The failure of settlement, and the perpetuation of political contest over the issue, rested for Douglass (2006 [1852], 493) in the incomplete enactment of the people declared by the ‘RING-BOLT’ of the nation’s destiny, by the self-creating constituent power of the people themselves. Loud and exultingly have we been told that the slavery question is settled, and settled forever. You remember it was settled thirty-seven years ago, when Missouri was admitted into the Union … Just fifteen years afterwards, it was settled again … Ten years after this it was settled again by the annexation of Texas … In 1850 [with the Fugitive Slave Law] it was again settled. This was called the final settlement. By it slavery was virtually declared to be the equal of Liberty … Four years after this settlement, the whole question was once more settled, and settled by a settlement which unsettled all the former settlements. (Douglass 1999c [1857], 347)

In sharp contrast with G arrisonian abolitionists, who famously construed the United States Constitution as a ‘covenant with death, and agreement with hell’, D ouglass had faith in a democratic politics of unsettlement he believed the Constitution authorized. That faith emerged from a belief that the Constitution’s

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interpretive authority rested not with governmental agencies, or in the balanced relationship between them, but ultimately with ‘the people themselves’, Douglass’ invocation of the work of radical anti-slavery constitutionalists such as Lysander S pooner, W illiam G oodell, Beriah G reen and G errit S mith situates him within this broad tradition of constitutional radicalism. Douglass’ reliance on the people’s interpretive authority poses difficulties for scholars who have either admired or criticized Douglass’ invocation of ‘original intent’ as a basis of constitutional interpretation. As Douglass (2006 [1852], 505) announced in his Fourth of July address, ‘I hold that every American citizen has a right to form an opinion of the constitution, and to propagate that opinion, and to use all honourable means to make his opinions the prevailing one’. The constitutional politics that Douglass and other abolitionists debated frequently revolved around what constituted such ‘honourable means’ but the redemptive model of the Revolution, with its clear resonance with Douglass’ struggle for independence as an escaped slave, highlighted the fraught nature of Douglass’ political claims. ‘Douglass’ greatest need,’ Robert Cover (1995, 137) writes, was for a vision of law that both validated his freedom and integrated norms with a future redemptive possibility for his people … [He embraced] a vision of an alternative world in which the entire order of A merican slavery would be without foundation in law.

For Douglass, Garrison’s refusal to make a constitutional claim in the people’s name and his willingness to see the ‘Union’ divided over the issue of slavery was an abdication of political responsibility. ‘Dissolve the Union, on this issue’, Douglass (1999c [1857], 352) wrote, ‘and you delude the people of the free States with the false notion that their responsibilities have ceased, though the slaves remain in bondage.’ Douglass’ popular constitutionalism led him not only to reject the judicial supremacy implied by Taney’s decision; it was also the central objection that he made to the substance of the decision. Of particular importance to Douglass’ argument was his rejection of Taney’s basis for denial of citizenship rights – that is, A frican ancestry. A s T aney wrote in his decision: The words ‘people of the United States’ and ‘citizens’ are synonymous terms … T hey both describe the political body who ... form the sovereignty ... T he question before us is, whether the class of persons described in the plea in abatement [people of African ancestry] compose a portion of this people, and are constituent members of this sovereignty? We think they are not, and that they are not included … under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for … citizens … (Taney 1857, 42)

Douglass refused this foundational equation of ‘the people’ with ‘citizen’, juridically (and, for Taney, also racially) defined. Turning to the preamble’s invocation of ‘We, the People’, Douglass wrote in response:

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W e the people – not we the white people – not we, the citizens, or the legal voters – not we, the privileged class, and excluding all other classes but we the people … not we, the horses and cattle, but we the people – the men and women, the human inhabitants of the United S tates, do ordain and establish this C onstitution, &c. (D ouglass 1999c [1857], 354)

Douglass believed that the preamble’s authorizing appeal to ‘the people’ provided a sufficient legal basis to eradicate slavery. As James A. Colaiaco (2006, 103) writes: Douglass considered the Preamble … as a part of the nation’s fundamental law. For him, the key to interpreting all sections and clauses of the constitution lay in comprehending its purpose in light of the language of the Preamble, which reveals the moral aspirations of the framers.

However, what Douglass emphasizes here is not simply ‘moral aspirations’, but the people’s political capacity for democratic self-creation, enacting that aspiration. Douglass’ faith in popular sovereignty has to be emphasized, particularly when considered alongside the period’s usual invocation of popular sovereignty as a way of justifying slavery and the inviolability of states’ rights (consider, for example, the popular-sovereignty positions staked out by John Calhoun or Stephen Douglas). By locating constitutional authorship in ‘the human inhabitants of the United States’, Douglass may seem to give the ‘people’ a seemingly unambiguous referent in the territory’s population, but the argument actually reveals again the always partial nature of any claim to speak in the people’s name. In basing its authority in the people, Douglass’ democratic constitutionalism condemned its own inevitable denial of inclusion and equality; it revealed the contestability of any boundary around the authorizing ‘we’ (see Whelan 1983). Douglass enacted the very popular and non-juridical claiming that he argued for in his critique of Taney’s judicial supremacy. ‘By claiming membership among “the people”’, Wayne D. Moore (1996, 64) has written, Douglass ‘presumed to be among those able to maintain (re-authorize) constitutional forms to represent the people’s collective and separate political identities.’ The Virtual ‘We, the People’ T he language of presumption and claim highlights another important aspect of Douglass’ work – and its connection to the form of political subjectification I am exploring here – in that it indicates his persistent refusal to justify his claim to speak in the name of ‘We, the People’. As noted above, Douglass frequently thematized the conditions required to hear of his claims as claims. He broke ‘the logic of expression’, and refused to apply words ‘to their assigned mode of speaking’ (Rancière 2000, 5). This refusal is explicit in his Fourth of July address.

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Like many abolitionist writers – constitutionalists and anti-constitutionalists alike – D ouglass was occasionally compelled to respond to critics who, while admiring the ultimate goals and principles of abolitionism, were nonetheless shocked by its manner and style. ‘I fancy I hear some one of my audience say’, Douglass (2006 [1852], 497) says in the Fourth of July address, ‘that you and your brother abolitionists fail to make a favourable impression on the public mind. Would you argue more, and denounce less … your cause would be much more likely to succeed.’ The voices of deliberative moderation – then as now – tend to presume a speech situation of communicative parity. Yet, as already discussed, according to Douglass, it is the very parity of the speaking situation that cannot be presumed, its absence marks the ‘peculiarity’ of his situation in relation to his audience. Because of this situation, appeals to reasoned argument are wholly misplaced. D ouglass continues: At a time like this, scorching irony, not convincing argument, is needed. O! had I the ability, and could I reach the nation’s ear, I would, to-day, pour out a fiery stream of biting ridicule, blasting reproach, withering sarcasm, and stern rebuke. For it is not the light that is needed, but fire … The feeling of the nation must be quickened; the conscience of the nation must be roused; the propriety of the nation must be startled. (Douglass 2006 [1852], 498)

Quickened, roused, startled: Douglass’ insights into the democratic importance of non-deliberative discourse and claims-making practices were not unique to him but in fact a central component of abolition’s public sphere (Fanuzzi 2003; O lson 2007). T he distance between the abolitionist public sphere and the deliberative publics celebrated by theorists of political liberalism is demonstrated in the radical Garrisonian Wendell Phillips’ (1854) Philosophy of the Abolition Movement, which explored the manner and language of abolitionist claims. Like Douglass in the Fourth of July address, Phillips (2000 [1854], 246) responded to common charges that ‘in dealing with slaveholders and their apologists, we indulge in fierce denunciations, instead of appealing to their reason …by … fair argument.’ Also like Douglass, Phillips (2000[1854], 249) emphasized the importance of these radical denunciations to piercing the ‘crust of … prejudice or indifference’. Such claims, he writes, were essential not to ‘convincing’ their public of their cause’s rightness, but to ‘converting’ them to it. Recall, in this regard, Rousseau’s (1968 [1762], 84–8) remarks on the non-deliberative and sublime speech of the lawgiver. ‘How else’, Phillips (2000 [1854], 247) asks, ‘shall a feeble minority … with no jury of millions to appeal to – denounced, vilified, and contemned – how shall we make way against the overwhelming weight of some colossal reputation.’ As with Douglass’s claim to a people that was not … yet, Phillips (2000 [1854], 248) engages here in explicitly prophetic speech: ‘We are weak here – out-talked, outvoted. You load our names with infamy, and shout us down. But our words bide their time. W e warn the living that we have terrible memories, and that their sins

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are to never be forgotten.’ Both men stake their claims on an authority that was only to be realized in the future; both enact a prospective orientation to time. Because of this fiery invocation of the divine and the fierce denunciation of the injustice of existing law, liberal theorists have, in William Rogers’ (1995, 17) words, traditionally ‘display[ed] a certain uneasiness and awkwardness in their treatment of antebellum reform movements like abolition’. Considering abolitionists’ sensitivity to power in their acts of claims-making, their refusal to engage in common deliberation or dwell on public justifications, and their insistence on prophetic speech, it is curious that a number of contemporary democratic theorists, and particularly those taken with the reigning deliberative paradigm, have returned to the abolitionists as a case study. A particularly relevant example can be found in John Rawls’ (1993, 212–54) discussion of public reason in Political Liberalism. Rawls (1993, 250) asks there whether the abolitionists went against ‘the ideal of public reason’. He then urges that readers view this important question ‘conceptually’ and not ‘historically’. When so viewed, according to Rawls (1993, 251), abolitionists like Phillips and Douglass: did not go against the ideal of public reason; or rather they did not provided they thought, or on reflection would have thought (as they certainly could have thought) … that the comprehensive reasons they appealed to were required to give sufficient strength to the political conception to be subsequently realized.

In other words, given the particularity of their historical conditions, it was not unreasonable for the abolitionists to enthusiastically appeal to comprehensive moral views and to refuse to subject them to the bar of public reason. S uch unreasonable participation in the public sphere is, R awls suggests, sometimes necessary to better establish the conditions for a more just and well-ordered society (where such unreasonable political enactments would presumably no longer be necessary). A s A my G utmann and D ennis T hompson (2004, 51; see also 1996, 133–7) similarly argue, some issues cannot even reach the political agenda unless some citizens are willing to act with passion, making statements and declarations rather than developing arguments and responses. When nondeliberative politics … are necessary to achieve deliberative ends, deliberative theory consistently suspends the requirements for deliberation.

In revisiting his arguments about public reason, R awls (1999, 142–3) argues even further that ‘new variations’ of public reason must be allowed ‘from time to time’ so that ‘claims of groups or interests arising from social change’ will not be ‘repressed and fail to gain their appropriate political voice’. These claims, he avers, may even be based in particular comprehensive doctrines, with the ‘proviso’ that ‘in due course proper political reasons … are presented’ to justify or support their claim (R awls 1999, 152).

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The problem with these eminently reasonable arguments is that they confidently presume that such ‘deliberative ends’ or ‘proper political reasons’ can be easily assessed in advance of the claims themselves. In contrast to Rawls, I think these important questions should be viewed historically as well as conceptually. Viewed historically, the theoretical confidence of contemporary political liberals seems misplaced, and abolition provides a particularly acute example of the difficulties of historical judgment. The conceptual confidence these writers evince in a liberal political culture’s ability to distinguish the temporarily unreasonable (but justified) from the simply unreasonable (and therefore illegitimate) depends on the ability to identify a kernel of justice, a ‘trace of reasonableness’, within these claims. It is on this basis that Rawls (1993, 251) can argue that abolitionists like Douglass and Phillips could have argued according to the protocols of public reason, and that had they had opportunities for proper reflection they would have argued in this way. But the confident identification of the justness of such claims tends to be retrospective. In retrospect, the liberal political philosopher can see that these actions were easily subsumed within an unfolding and self-correcting constitutional tradition. T his retrospection often does very little to support emerging political struggles. A s W illiam C onnolly (1999, 186) has argued, the dialectic of unfolding justice ‘always functions best as a retrospective description of movements that have already migrated from a place under-justice to a place on the register of justice/ injustice.’ The abolitionists certainly would not have passed the heuristic test Rawls (1993, 254) offers – ‘how would our arguments strike us presented in the form of a Supreme Court opinion? Reasonable? Outrageous?’ The abolitionist case in general, and Douglass’ life and work in particular, suggest that such criteria not only fail to assist newly emergent democratic claims, but may actively inhibit them. Robert Cover’s (1975) brilliant study of how the legal order of slavery and its appeal to the rule of law undermined the legitimacy of claims for its abolition is a powerful case study in this general dynamic. D ouglass himself was fully aware of its mechanisms. There are several moments in Douglass’ speeches when he speaks out against the tendency to recall the principles of the past to reanimate reconciliation and inhibit the enactment of democratic ‘unsettlement.’ As Robert Fanuzzi (2003, xix) has argued in his study of abolition’s public sphere, Douglass and Garrison portrayed the movement as prophetically discordant with its own time. A bolition portrayed itself ‘as a rupture in the fabric of time, and as a suspension of orderly succession’. For Douglass, this orientation was secured through a particular understanding of democratic ‘struggle’ and ‘unsettlement’ and his belief that contradictions of principle would not resolve themselves over time, but that liberties would have to be presumptuously claimed. This is what he means, I think, when, in an 1856 lecture titled ‘The Do-Nothing Policy’, he writes: ‘The open sesame for the coloured man is action! action! action!’ (Douglass 1999b [1856], 355). Or when, in a speech on ‘West India Emancipation,’ he says:

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If there is no struggle there is no progress. T hose who profess to favour freedom yet depreciate agitation, are men who want crops without ploughing up the ground … They want the ocean without the awful roar of its many waters … Power concedes nothing without demand. It never did and it never will. Find out just what any people will quietly submit to and you have found out the exact measure of injustice and wrong that will be imposed upon them and these will continue until they are resisted with either words or blow, or with both. T he limits of tyrants are prescribed by the endurance of those whom they oppress. (Douglass 1999d [1857], 367)

T his theme is, in fact, central to My Bondage and My Freedom. In that text, D ouglass envisions an A frican-A merican politics that eschews any essentialism and that is born of agonistic political struggle. In Bondage, D ouglass aspires not to bring A frican-A merican life into conformity with the constitutive norms of the polity, but to radically re-imagine those norms. D ouglass calls for neither recognition nor separation, but mutual transformation. As mentioned above, Douglass’ Fourth of July address was actually delivered on July 5th. In the nineteenth century, black Americans celebrated a number of holidays and commemorations – New Year’s Day festivals, West Indies Emancipation Day, New York Abolition Day, etc. – that both marked their isolation from white America and hopefully commemorated unfulfilled movements of slave insurrection and emancipation. These ‘freedom celebrations’ quite literally staged a dissensus within the prevailing order of commemoration. On July 4, 1827, the state of New York outlawed slavery, and beginning the following year numerous black communities began holding festive public celebrations to commemorate the event. However, in order to dramatize the ‘fundamental contradiction between the nation’s commitment to democratic ideals and the practices of racial exclusion’ (Glaude 2000, 86), most of these communities celebrated the holiday on July 5. Doing so, they drew attention to a time out of joint. Douglass’ Fourth of July address, like the ‘holiday’ on which is was performed, was an unusual commemoration insofar as it did not monumentalize the past or celebrate the already-achieved independence of ‘we, the people’. Instead, it set the stage for the emergence of another people, a ‘third people’ (Rancière 1998, 88). Douglass offered a monument not to the past but to the future; his speech, and the holiday on which it was delivered, provided his audience – a virtual people – a paradoxical commemoration of what will have been. Bibliography Agamben, G. (2000), ‘What is a People?’ in Means without End: Notes on Politics (Minneapolis, MN : University of Minnesota Press), 29–36. Bacon, J. (1998), ‘“Do You Understand Your Own Language?” Revolutionary Topoi in the Rhetoric of African-American Abolitionists’, Rhetoric Society Quarterly 28:2, 55–75.

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Bercovitch, S . (1993), Rites of Assent: Transformations in the Symbolic Construction of America (New York: Routledge). Boxhill, B. (1992–3), ‘Two Traditions in African American Political Philosophy’, The Philosophical Forum 24:1–3, 119–35. Christodoulidis, E.A. (2007), ‘Against Substitution’ in Martin Loughlin and Neil Walker (eds) The Paradox of Constitutionalism: Constituent Power and Constitutional Form (O xford: O xford University Press), 189–210. Colaiaco, J.A. (2006), Frederick Douglass and the Fourth of July (New York: Palgrave Macmillan). C onnolly, W .E. (1999), The Ethos of Pluralization (Minneapolis, MN : University of Minnesota). C over, R . (1975), Justice Accused: Antislavery and the Judicial Process (N ew H aven, CT : Yale University Press). Cover, R. (1995), ‘Nomos and Narrative’ in M. Minow, M. Ryan, and A. Sarat (eds) Narrative, Violence, and the Law: The Essays of Robert Cover (A nn A rbor, MI: University of Michigan Press), 95–172. Derrida, J. (1986), ‘Declarations of Independence’, New Political Science 15, 7–17. Douglass, F. (1982 [1853]), ‘A Nation in the Midst of a Nation’ in The Frederick Douglass Papers Series One: Speeches, Debates, and Interviews, ed. J.W. Blassingame (N ew H aven, CT : Yale University Press) 2: 1847–54, 423–40. Douglass, F. (1999a [1853]), ‘The Claims of Our Common Cause’ in Foner (ed.) Frederick Douglass: Selected Speeches and Writings, 260–70. Douglass, F. (1999b [1856]), ‘The Do-Nothing Policy’, 342–43. Douglass, F. (1999c [1857]), ‘The Dred Scott Decision’, 344–57. Douglass, F. (1999d [1857]), ‘West India Emancipation’, 358–68. Douglass, F. (2003a [1855]), My Bondage and My Freedom (New York, Penguin Books). Douglass, F. (2003b [1881), Life and Times of Frederick Douglass (Mineola, N Y: Dover Books). Douglass, F. (2006 [1852]), What to the Slave is the Fourth of July? The American Intellectual Tradition Volume I: 1630–1865, eds D .A . H ollinger and C . C apper (New York: Oxford University Press), 492–506. Fanuzzi, R . (2003), Abolition’s Public Sphere (Minneapolis, MN : University of Minnesota Press). Foner, P.S . (ed.) (1999), Frederick Douglass: Selected Speeches and Writings (Chicago, IL: Lawrence Hill Books). G laude, E.S . (2000), Exodus! Religion, Race, and Nation in Early NineteenthCentury Black America (C hicago, IL: University of C hicago Press). G utmann, A . and D . T hompson (1996), Democracy and Disagreement: Why Moral Conflict cannot be Avoided in Politics, and What should be Done About It (C ambridge, MA : H arvard University Press). G utmann, A . and D . T hompson (2004), Why Deliberative Democracy? (Princeton, NJ: Princeton University Press).

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Jasinski, J. (1997), ‘Rearticulating History in Epideictic Discourse: Frederick Douglass’ “The Meaning of the Fourth of July to the Negro”’ in T.W. Benson (ed.) Rhetoric and Political Culture in Nineteenth-Century America (East Lansing, MI: Michigan S tate University Press), 71–89. Keenan, A . (2003), Democracy In Question: Democratic Openness in a Time of Political Closure (Palo A lto, CA : S tanford University Press). Kramer, L.D . (2004), The People Themselves: Popular Constitutionalism and Judicial Review (New York: Oxford University Press). Mills, C.W. (1999), ‘Whose Fourth of July? Frederick Douglass and Original Intent’ in B.E. Lawson and F.M. Kirkland (eds) Frederick Douglass: A Critical Reader (New York: Blackwell), 100–42. Moore, W .D . (1996), Constitutional Rights and Powers of the People (Princeton, NJ: Princeton University Press). N ieman, D .G . (1991), Promises to Keep: African Americans and the Constitutional Order, 1776 to the Present (New York: Oxford University Press). Olson, J. (2007), ‘The Freshness of Fanaticism: The Abolitionist Defence of Zealotry’, Perspectives on Politics 5:4, 685–701. Phillips, W. (2000 [1854]), ‘Philosophy of the Abolition Movement’ in M. Lowance (ed.) Against Slavery: An Abolitionist Reader (New York: Penguin), 246–51. Rancière, J. (1998), Dis-agreement: Philosophy and Politics (Minneapolis, MN : University of Minnesota Press). Rancière, J. (2000), ‘Jacques Rancière: Literature, Politics, Aesthetics: Approaches to Democratic Disagreement’, SubStance 92, 3–24. Rancière, J. (2004), ‘Who Is the Subject of the Rights of Man?’, The South Atlantic Quarterly 103:2/3, 297–310. Rawls, J. (1993), Political Liberalism (New York: Columbia University Press). Rawls, J. (1999), ‘The Idea of Public Reason Revisited’ in The Law of Peoples (C ambridge, MA : H arvard University Press), 129–80. R ogers, W . (1995), We Are All Together Now: Frederick Douglass, William Lloyd Garrison and the Prophetic Tradition (New York: Routledge). Rousseau, J. (1968 [1762]), The Social Contract (New York, Penguin). T aney, R .B. (1857), D red S cott v. S andford, 60 U.S . 393 available at: http://www. oyez.org/cases/1851-1900/1856/1856_0/, last visited 4 March 2008. W alzer, M. (1988), The Company of Critics: Social Criticism and Political Commitment in the Twentieth Century (New York: Basic Books). Whelan, F.G. (1983), ‘Democratic Theory and the Boundary Problem’ in J.R. Pennock and J.W. Chapman (eds) Liberal Democracy (New York: New York University Press), 13–42.

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C hapter 6

Polemos and A gon A lex T homson

A gonist political theorists stress not only the irreducibility but the centrality of conflict to democratic politics. This sets them apart from pluralist or deliberative democrats who may acknowledge the impossibility of eliminating disputes, but whose efforts are directed towards institutions and processes which would foster co-operation and reconciliation rather than sustain antagonism. T o an agonist, this is to commit one of two possible errors. Either it entails taking a weaker position, which may leave us exposed to the violent opposition of those who do not recognize the common space within which we offer to negotiate; or it deploys that sleight of hand whereby the most violent position, which seeks to extirpate its opponents from the political field, masquerades as the most peaceful. In contrast, agonist thinkers aim to remap our understanding of democracy in such a way that conflict becomes not that which politics seeks to eliminate but its very principle. A gonists are neither terrorists nor nihilists. T hey are not interested in violence for its own sake, nor in the purging fire which dominates the revolutionary tradition. Indeed, the problems that the agonists confront are recognizable as those which have preoccupied both liberal theorists and their opponents in recent decades: tensions arising from competing demands for cultural recognition within the liberal state; questions of legitimation raised by declining political participation; the justification and universality of liberal principles. Standing on the banks of what they portray as the mainstream of contemporary W estern political thought, they seek to revitalize rather than overthrow the democratic tradition. But because they diagnose a complicity between liberal political thought and the problems facing modern democratic states, agonist positions polemicize against both the city and the academy. T his lends a pre-eminently theoretical discussion the allure of urgency and opposition but opens it to the risk of conflating the two spheres and substituting debate within the academy for action within the city. My aim in the first part of this chapter will be to identify those features which distinguish the agonist attempt to resolve these questions, and in particular to examine critically their call for something like a ‘return’ to politics. Agonist arguments are, to use James Tully’s (1995, 44) terms, ‘nonauthoritative in the sense that they did not develop along with the formation of contemporary constitutional societies and their language of self-understanding’. Like many counter-movements in the history of Western political theory, their position is articulated as a reinterpretation of the democratic tradition, signalled by the anachronistic lexicon deriving from the Greek term agōn. A lthough I

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acknowledge that to some extent there is merely a family resemblance between those theorists who have invoked this vocabulary, that shared rhetoric alone would be enough to justify the comparison. It points us towards common reference points in the work of Friedrich Nietzsche and Hannah Arendt, as well as their concern to rearticulate the relationship between the theory, practice and language of political encounter. In Western Political Theory in the Face of the Future John Dunn (1979, 28) writes: ‘If we are all democrats today, it is not a very cheerful fate to share. Today, in politics, “democracy” is the name for what we cannot have – yet cannot cease to want.’ Dunn seeks to restore our sense that democracy can and should mean autonomy, self-rule. But in complex social systems our experience of politics is largely that of tacit assent, and the choice between alternative forms of rule by others. If this is indeed our fate, then the question posed by the agonists must be a genuine one. Their work can be sympathetically understood as an attempt to reshape the modern political imaginary and in particular to effect a break between our understanding of democratic politics and its current domination by the horizon of the modern state. H owever, in my account of the agonist position, I will seek to show what I take to be the limits of this political re-imagining. In the remainder of my chapter I will sketch an alternative position, which I associate with a vocabulary deriving not from agōn but from polemos. A gonist arguments rely on a rethinking of social theory which presents itself as a modest rejection of philosophy as metaphysics; I characterize in terms of polemos the deconstructive renewal of specifically philosophical, hence metaphysical, questioning deriving from the project of Martin Heidegger and exemplified in the work of Jacques D errida. Contra the agonists, I will argue for an aporetic disjunction between philosophical and political enquiry; drawing on Derrida’s political writings I will offer a sketch of a philosophical indifference to politics which is neither a rejection of political engagement nor the replacement of politics by theory. The Limits of Agonism Precedent for identifying a distinctive agonist position might be drawn from Seyla Benhabib’s ‘Introduction’ to a collection of essays entitled Democracy and Difference: Contesting the Boundaries of the Political. She identifies ‘a tension’ between ‘defenders of the proceduralist-deliberative model of democracy’ and the ‘the agonistic model of democratic politics’ (Benhabib 1996, 7). The context is helpful for situating what is at stake. Broadly speaking, all the contributors to the volume seek to move beyond the narrowly conceived alternative of liberal or communitarian politics. Liberalism, represented in its pre-eminent modern form by the work of John Rawls, seeks to develop a rational legitimation of decisionmaking processes in which the best possible balance between competing interests can be achieved. T he aim of the theorist is to help guide the political community towards those institutions and practices for which the greatest possible consent

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amongst citizens can be established, owing to their identification with an ideal of public reason. C ommunitarian critics of this model emphasize the fragility of a merely theoretical ideal, suggesting that security and consensus can best be derived from the alignment of political process with the pre-political sentiments of a community considered as relatively homogeneous in culture. A s the subtitle suggests, both deliberative and agonist theorists challenge the identification of politics with the state. Deliberative democrats seek to thicken the decision-making process by engaging wider forms of public discussion throughout civil society to consolidate, and where appropriate to challenge, the state. T o give the position a minimal preliminary definition, an agonist opposes the institutional emphasis of this theory, and identifies democracy as a political principle that cannot be directly aligned with a particular regime. D emocracy as self-rule becomes something more like an ethic, or what Sheldon Wolin (1996, 43) in his contribution calls ‘a mode of being’; but this emphasis on democracy also suggests, as Richard Flathman (1998, 14) notes, a potential tension between agonists and more individualistic or voluntarist liberal thinkers. In other words, agonists aim to redefine the relationship between democracy and politics. T hey share with many other critical analyses on both left and right a sense that modern democracy is not living up to its name. What makes their position distinctive is that it calls for a revitalization of modern democratic culture not in terms of the articulation of public goods which exceed partisan interests, but through a celebration of the continuous conflict of those interests. Agonists deny the possibility of a common good which can be distinguished from power relations within society, and claim that the attempt to articulate such a good must itself be interested. Because they deny the possibility or desirability of citizens being able to free themselves from their attachment to social groups subsidiary to the larger political community, or whose borders overflow those of the polis, they can only articulate a distinctive political virtue in terms of the value of political conflict itself. A correlative of the agonist position is the demand to rethink the relationship between political theory and democratic practice. Insistence on the persistence of power relations implies a distrust of any attempt to objectively map those relations. Through a conflation of academic liberal political theory with the rhetoric of consensus in contemporary W estern political discourse, agonists portray their own arguments as a virtuous attempt to foster the kind of pluralism they advocate, grounded in practices rather than institutions. S o in addition to calling for a rethinking of the relationship between politics and democracy, agonism demands a rethinking of the relationship between politics and its ground, reconceived not as theoretical, but as practical. T he appeal of N ietzsche for agonists is that his major legacy to the twentieth century has been his challenge to the primacy of theory; the appeal of A rendt, her grounding of politics in action. O n this basis we can identify some exemplary claims. Bonnie H onig begins her Political Theory and the Displacement of Politics with the statement:

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For Chantal Mouffe (2000, 101, 103), the modern conception of ‘“politics” consists in domesticating hostility and in trying to defuse the potential antagonism that exists in human relations’, but agonistic pluralists acknowledge ‘that, far from jeopardizing democracy, agonistic confrontation is in fact its very condition of existence’. William Connolly (2002, x) argues that agonistic democracy is a ‘practice’ that ‘breaks with the democratic idealism of communitarianism through its refusal to equate concern for human dignity with a quest for rational consensus’. A gonism means safeguarding the space in which antagonistic social forces fail to subdue one another; it ‘affirms the indispensability of identity to life, disturbs the dogmatization of identity, and folds care for the protean diversity of human life into the strife and interdependence of identity/difference’ (Connolly 2002, x). W e are now in a position to see how the two most characteristic strategies of agonist thinkers are linked. To understand justice as strife is to repudiate the attempt by theoretical reason to divine the harmonious order to which politics ought to approximate, or to seek to deduce political institutions on an axiomatic basis. Because agonists suspect descriptive approaches to politics of a normative bias, agonism requires something like a theoretical attack on theory. The tendency to distinguish contemporary democratic politics from something like a political ground or essence serves as both a polemical contestation of the positions they identify with the failures of modern politics and a problematically theoretical move designed to reverse the priority of theory over practice. That the basic orientation of agonist thinking is towards a new ground for politics is evident in the work of both William Connolly and Chantal Mouffe. Connolly’s pluralism is more explicitly grounded in an attempt to rethink ontology along contemporary Spinozist lines. Here the attack on metaphysics is an attack on transcendence in the name of immanence. Mouffe’s position towards ontology is more ambiguous because it remains attached to the idea of critical social science rather than metaphysics. However the absent ‘centre’ and openness of the social functions as a ground equivalent to that of Connolly’s ontology. This appeal to ontology, however tentative, is necessary to ensure that agonism advocates antagonism as such rather than any particular antagonism: when forms of speech are identified with forms of life the claim to describe the whole field still rests on the ability of one way of talking to articulate relations between all those ways, and thus the tentative establishment of a meta-language. Agonism replaces the idea of a public good with ‘politics’ itself as an abstract value deprived of any content, except for the pragmatic virtues of pluralism and tolerance. Via this substitution, a minority group which identifies itself with politics itself can operate what we might call an immanent critique of what passes for

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politics in ordinary language. T he spectre of C arl S chmitt haunts the discourse on agonism insofar as the reinvigoration of politics promised by the agonist depends on a prior denunciation of the present appearance of politics as banal management. A s A gnes H eller (1991, 331) has pointed out, the need for a concept of the political only arises ‘once the birth of modern mass democracy finally rendered obsolete the equation of political class with political action’. Only then does ‘the question concerning the character of “the political” appear on the agenda; for a criterion for determining which actions, phenomena and institutions are of political provenance and which are not, had to be found.’ Heller’s comments suggest that for all its appeal to tradition, agonism is distinctively ‘modern’. This is equally apparent from its obsession with epistemology cast as the question of the foundations of politics and of political theory; the desire for a new ground echoes the desire for the unity of theory and practice characteristic of both the rationalist approach of the Kantian and the radical approach of the revolutionary. In my account of the agonistic position I have stressed three elements that distinguish the agonist from the liberal, deliberative or communitarian democrat: their insistence on conflict; that conflict be understood not as a contingent feature of politics but as its constitutive and distinctive feature; and their epistemological concern to re-ground the theoretical discussion of politics. Because of the latter, their understanding of conflict cannot go all the way down: which is to suggest that they seek to induce theoretical agreement regarding the grounds on which they commend political conflict. It makes little difference whether that attempt to persuade is considered a matter of reason or rhetoric: if the former, theory still precedes politics and the model of justice which the agonist contests has not been overturned; if the latter, the emphasis on disagreement rather than consensus becomes merely a matter of preference. T he most charitable reading would see agonism as a tactical attempt to challenge the discourse of liberalism from within, in keeping with Richard Rorty’s redescription of philosophy as persuasion; but even if the purported alliance of theoretical and political radicalism merely provides exoteric cover, the political valence of its rhetorical pose remains to be reckoned. Like Leo Strauss (1964, 1), the agonists imply that a political theory is ‘the rightful queen of the social sciences, the sciences of man and human affairs’. But S trauss is perhaps more open about the limits of philosophy and the political role of persuasion. Polemos against Agōn I turn now to Heidegger and Derrida, in order to sketch an alternative position to that of agonism. H eidegger is of interest for two reasons. Firstly, because it is sometimes said that his thought lies behind much recent writing on the relationship between politics and philosophy, including that of the agonists. In particular, the ontic-ontological difference has been taken as the ur-form of the distinction between politics and the political. For example Mouffe directly identifies ‘current

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practices of democratic politics’ as ‘located at the “ontic” level’ and ‘“the political”’ with ‘the ontological dimension’ (2005, 9). Secondly, the comparison is illuminating because Heidegger’s understanding of polemos is specifically cast as a struggle with Nietzsche. To look at the tension between agōn and polemos is to tease out two interpretations of N ietzsche. I conclude with a discussion of D errida because his work stands in a similar relationship to Heidegger as Heidegger’s mature thought does to N ietzsche. Understood as part of his long confrontation with Heidegger, Derrida’s own political writings offer the possibility of extending the specifically philosophical orientation which I identify with polemos rather than agōn, but raising anew the question of philosophy’s constitutive and aporetic relationship to politics. H eidegger distinguishes between ontic and ontological questions in Being and Time. A n ontic enquiry concerns a particular type of beings and presumes an ontological decision as to the mode of being of those beings. For example, the natural sciences take various aspects of nature as their object, relying on certain guiding assumptions which stabilize and regulate the enquiry. H eidegger is clear that the task of philosophy is that of fundamental ontology, or enquiry into being itself, a question which is both prior to, and unavailable from, any regional ontology. By contrast, Mouffe distinguishes something more like a transhistorical idea of politics as the conflictual mediation of social antagonism from any particular historical or ideological ‘content’ that might be confused with it. The distinction is necessary to any structural or functional analysis which seeks to suspend judgement as to what constitutes a ‘proper’ form of political activity. In this sense, Mouffe is post-structuralist in her advocacy of this methodological practice, along with its theoretical self-understanding, as in and of itself a political ideal. In asking what makes a political event political, Mouffe departs from Heidegger’s project; his focus would be rather on what makes it an event. In his work following Being and Time, the only philosophical question becomes why there ‘are beings at all instead of nothing’ (Heidegger 2000, 1). But even the early Heidegger demands a suspension of the ‘ontic’ sciences, and their ‘ontological’ underpinnings, in the name of philosophy reconceived as fundamental ontology: T he question of Being aims therefore at ascertaining the a priori conditions not only for the possibility of the sciences which examine entities as entities of such and such a type, and, in so doing, already operate with an understanding of Being, but also for the possibility of those ontologies themselves which are prior to the ontical sciences and which provide their foundations. Basically, all ontology, no matter how rich and firmly compacted a series of categories it has at its disposal, remains blind and perverted from its ownmost aim, if it has not first adequately clarified the meaning of Being, and conceived this clarification as its fundamental task. (Heidegger 1962, 31 – Heidegger’s emphasis)

T o stress polemos rather than agōn is to reiterate Heidegger’s own insistence that philosophy — that is enquiry after truth rather than rhetorical persuasion or a

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historical science — depends on thinking the ontological difference, that is the difference between Being and any determinate beings. S tephen K. W hite (2000, 14) offers a succinct formulation of this position as a possible objection to ontologies such as those of Mouffe and Connolly: ‘Ontology should refer only to the study of the question: W hat is being? A nd ontology is intrinsically concerned with a true answer to this single question.’ It is later in the development of Heidegger’s thinking that the term polemos, which H eidegger translates as Auseinandersetzung, comes into play. T he term will itself require translation. In the preamble to his careful and extensive study, G regory Fried (Fried 2000, 16–19) distinguishes at least seven different senses in which aspects of Heidegger’s own project can be helpfully identified with the term. H ere I will largely be concerned with two. Firstly, with polemos as a term for the general strife of Being. As such it is that towards which Heidegger’s thinking is directed, but also that which is covered up in both everyday life and in traditional metaphysical enquiry. But crucially, polemos is also a term for Heidegger’s way of thinking, for that deconstruction by which the absent presence of the truth is experienced in thought (see also Van R oermund in this volume). S o to compare polemos with agōn is to contrast not only two different objects, Being as the cosmic strife within which human existence and political life takes place as distinct from any of the manifold historical forms of human life, but two different manners of enquiry. Heidegger clearly distinguishes the thinking of polemos from that of agōn in his lecture course on Parmenides and Anaximander, given in 1943. Like the agonists, he acknowledges an indebtedness to Nietzsche, but also his concern to move beyond what he sees as Nietzsche’s position. Yet, as Ulriche Haase (2007) has emphasized, this is an engagement in which N ietzsche is not dismissed. Rather, Heidegger treats him as a strong precursor with whom a specific kind of encounter is required. The struggle to find a distance from Nietzsche is the struggle to renew thought itself: ‘to understand Nietzsche as the end of metaphysics is the historical beginning of the future of Occidental thought’ (Heidegger cited by H aase 2007, 23). S o polemos is constituted in direct relation to the equation of metaphysics with nihilism, and Heidegger’s endeavour to distinguish thinking from philosophy. Without engaging in a full exegesis of Heidegger’s complex and at times treacherous relationship with N ietzsche, a brief discussion of this passage in relation to the lecture course as a whole will illustrate my claim that the thinkers of agonism have not made what H eidegger presents here as the decisive move beyond N ietzsche. The context is Heidegger’s concern to explore the idea of truth as conflictual in its essence, an idea which he attributes to Greek thinking, and which he claims has been covered over by subsequent thought (i.e. nihilism): we do not understand to what extent the essence of truth is, in itself, a conflict. If, however, in the primordial thinking of the Greeks the conflictual essence of truth was experienced, then it cannot astonish us to hear, in the dicta of this primordial thinking, precisely the

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In going beyond N ietzsche, H eidegger pursues an enquiry into the grounds of agonism. In other words, both the mode of doing philosophy (Auseinandersetzung/ polemos) and that which it seeks to uncover (Auseinandersetzung/polemos) exceed the anthropological and historical enquiry to which N ietzsche, H eidegger suggests, appeals. T he result is to move the horizon to which our gaze is directed from the city governed by contest to the cosmic strife within which the city is itself located. Both the method and the results of the enquiry have political consequences. Firstly, there is a challenge to the anthropocentric and anthropomorphic tendency of agonist thinking. In his lecture course on the pre-Socratic philosophers, Nietzsche had suggested that Heraclitus had identified justice with conflict on the basis of a metaphorical transfer from his experience of Greek life: This is one of the most magnificent notions: strife as the continuous working out of a unified, lawful, reasonable justice, a notion that was produced from the deepest fundament of the Greek being […] From the gymnasium, musical competitions and political life H eraclitus becomes familiar with the paradigm of such strife. (N ietzsche 2001, 64)

Nietzsche’s position here is that of the cultural historian, the sociological debunker of ideology or the thinker of human life in terms of language games: philosophy is the product and reflection of particular ways of living and perceiving the world. Knowing only himself and his society, man projects his own categories onto the world. A gainst this claim to have uncovered the ground of philosophical activity, Heidegger reasserts something like the ambiguity of Heraclitus’s discovery, since there is no measure by which we might determine whether the city replicates cosmic justice or the vision of cosmic balance is simply the wishful projection of the citizen. In other words, the thinking of polemos refuses to decide whether the relationship between the philosopher and justice is one of blindness or insight, and whether the relationship between the city and justice is one of harmony, or hubris. T he overcoming of metaphysics thus entails a problematic relationship to philosophy, in which the only true path for philosophy is a recursive destruction of its own history in order to uncover a more original way of thinking: more original in the sense of having a more profound relationship to the strife of Being, predicated on the need to overcome the contemporary technological world as the completion of metaphysics in nihilism. In his own essay on Heidegger’s understanding of polemos, D errida (1993) suggests that one of the former’s concerns in this period might have been to distinguish his understanding of conflict from the anthropological sense of war

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on which Schmitt’s concept of the political is founded. For Schmitt (1976, 35), polemos is the fundamental possibility of the political entity, whose very existence is only properly given in the act of declaring war. For H eidegger, by contrast, polemos as Being must by its very nature exceed the city. T his is a point stressed by Heidegger several times in his lectures on Holderlin’s Der Ister: T he pre-political essence of the polis, that essence that first makes possible everything political in the originary and in the derivative sense, lies in its being the open site of that fitting-destining [Schickung] from out of which all human relations towards beings […] are determined. (H eidegger 1996, 82)

Indeed the fate of the city is something more like an effect of contending fortunes at the higher level: that is the chaotic unfolding of successive epochs of Being. If the city is that in which man finds his being, the city will only find its being within a larger struggle. To conceive of this struggle means taking seriously the possibility of the demise or dissolution of the city, and therefore removes the question of taking a stand for or against the city from the remit of philosophy. If, for S chmitt, political theory is oriented towards a decision that exceeds the theoretical because it is a matter of practice (cf. D errida 1997, 114), for H eidegger philosophy is oriented towards a decision that exceeds the practical because it exceeds the human. D ecision for H eidegger is not to be thought in anthropological terms, as the choice made by an agent between two courses of action, nor as a process or activity of being, but as something more like the original division or setting adrift of being. A ccordingly, the Contributions to Philosophy is rich in statements in which it becomes clear that the rewriting of history as the unfolding of being happens across and through the individual and the city, but cannot be identified with either. A 1953 clarification added to the Introduction to Metaphysics reminds us that ‘de-cision here does not mean the judgement and choice of human beings, but rather a division in the aforementioned togetherness of Being, unconcealment, seeming and not-Being’ (Heidegger 2000, 116). Derrida’s reading of Heidegger is generous in the sense that we might postulate less philosophical reasons for the latter to wish to distinguish the struggle of being with the war in which G ermany was currently engaged. In the Contributions H eidegger seems to sense the danger of identifying national and philosophical destiny, which is present not only in his work of the Rectorate period but remains visible whenever he links philosophy to the G erman language. A second consequence of Heidegger’s identification of philosophy with enquiry into truth as the grounds of agonistic competition clarifies the problem of mapping the ontic-ontological difference onto the distinction between politics and the political. Greek thinking is ‘primordial’ in Heidegger’s terms not because Greek philosophy knows a truth which modern thinking cannot recover, nor because Greek experience reveals the ground of their thought, as Nietzsche implies. Rather, primordial here indicates an experience of that which comes before the origin, but which remains withdrawn from thought. It is not a lost past but that which remains

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to come, and on which thinking remains able to draw, albeit not without a recursive movement in which destruction and recovery are inseparably conjoined. W e might think of this as precisely the ambiguity of Heraclitus’s thinking: the impossibility of determining the relationship between law and justice because of the withholding of justice as the ground of law. Justice functions as ground whether we consider it divine or human, transcendent or immanent. But it is inseparable from the laws through which it is manifest and from which it is absent. Polemos means thinking the complication of this relationship rather than its clarification. To characterize as Heideggerean the recent tendency to distinguish ‘politics’ from the ‘political’, as Oliver Merchant (2007) does, is misleading. The thrust of Heidegger’s work is to ground philosophical enquiry on the distinction between the ontic (which would include all human activity, political or otherwise) and the ontological (Being). T his must entail a suspicion about the possibility of drawing Being into political argument and, thus, about the political availability of philosophy. T he tracing of the difference between the ontic and the ontological (by which method alone Being can be brought into our reckoning) is in part the bringing to appearance of that which cannot be calculated or reckoned with. The possibility that such a tracing can give rise to a new or improved form of calculation must remain radically in abeyance. A nything that could be a foundation would have been recuperated theoretically. T his radically aporetic account of the relationship between the enquiry of the philosopher and his or her activity as a citizen also directs us to suspect any attempt to reground politics in something which exceeds theoretical reason. T he difference between A rendt and D errida is illuminating on this point because it illustrates two divergent responses to H eidegger. A ccepting the suspicion of theory, A rendt requires a new ground for politics, which she finds in action, maintaining the modern relationship between political theory and the history of freedom, but with history construed as the fortunate and unpredictable sequence of emancipatory beginnings. D errida, who might be said to agree with A rendt insofar as he sees a free decision as being in excess of any rational calculation of ends, goes on to suspect any possible identification of such a decision. The possibility of free action for Arendt is demonstrated by reference to a series of key (but fleeting) examples. For D errida, that possibility is precisely that which cannot be demonstrated. O nce an action or event had been identified, providing an example to be imitated, access to political freedom would be blocked rather than opened. When Derrida insists on the impossibility of certain kinds of an event, of forgiveness, of decision, he is not arguing that they never happen, but that any kind of thinking which begins from the presumption of their existence will be less likely rather than more likely to cultivate them. Arendt’s turn to philosophy of praxis might be contrasted with Derrida’s own response to Heidegger. Rather than turn away, he seeks to continue to think philosophy as the deconstruction of metaphysics, and sustains the ontological orientation of Heidegger’s work. Against Heidegger, Derrida insists on the history of political institutions and vocabularies not as the destruction of original truth but as a fortunate but unpredictable sequence of events which

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continue to shelter certain positive possibilities. In contrast to A rendt, our attention is turned not to founding acts but to the betrayal of such events in their subsequent institutionalisation without which they would have no originary force. This leads Derrida to a very different position from that of Heidegger. Take for example the implications of Derrida’s (1999; Derrida and Dufourmantelle 2000) work on the notion of hospitality, which is conceived as an interrogation of the political and conceptual grammar governing both the theory and practice of the relationship between the modern democratic state and the fact of immigration. A s a duty, D errida argues, the offering of hospitality ought to be unlimited. In practice, our capacity for offering hospitality is restricted, not only by the physical or practical considerations such as resources, but by the conceptual problem that identity depends on the maintenance of borders, and that therefore the identity on which my capacity to offer hospitality depends will always contravene the duty to offer hospitality. T he real failure of states – now, as in history – to offer unlimited hospitality to refugees, asylum seekers or economic migrants stems from the restriction of certain kinds of goods to its own citizens. Hospitality can only be offered to the extent that one remains a host, that one commands and regulates a space of refuge. T his argument implies but does not depend upon the inadequation of any act of hospitality to an ideal. But it goes further in showing the ideal of hospitality to be itself incoherent, pulled apart not so much by conflicting or aporetic duties but by the conceptual paradox involved in the single obligation to offer shelter. In practical terms, this suggests that the debate over immigration will be interminable because programmed into the modern ideal of democracy conceived as universal brotherhood. Derrida’s work evokes this interminable conflict while refusing to assume the responsibility for setting limits to it in practice or in theory. A s D errida comments in Rogues: one will never actually be able to ‘prove’ that there is more democracy in granting or in refusing the right to vote to immigrants … nor that there is more or less democracy in a straight majority vote as opposed to proportional voting. (D errida 2005, 36)

If there is a political principle in Derrida’s work it is this: that the ability of the political community to cultivate its own affairs, to protect itself, the extent of its own self-governance, depends on a constitutive relation with its outside. A bsolute closure, like absolute openness, would be the dissolution of the political body. T his places the political community always and immediately into contradiction with democracy, since the ground for political equality before the law, isonomia will always be restricted not only de facto (every city we know has walls) but de jure (to be a city it must have walls). T he burden of the language of democracy in Derrida’s work is to highlight this contradiction within our inherited conception of politics, which does not stem from a moral or religious insertion of equality into a conception of politics to which it is alien, but from the emergence of democracy as such. Derrida’s insistence on a democracy ‘to-come’ is a reminder that what might be described as a tragic diremption of politics from democracy is also the opening

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of its possibility, and of all the contestations of power in the name of equality and freedom to which history attests. T his need not be understood as a radical replacement or rejection of the tradition, but more as the aspiration to renew the self-understanding of political philosophy. T o this extent, D errida can be seen as rejecting the H eideggerean problematic of the history of metaphysics as nihilism. For example, it is possible to give an account of Aristotle’s thought which is very close to my presentation of Derrida’s. In his work on Aristotle, Yack (1999, 288; cf. 1993) argues that political community is precisely that form of social organization which fosters possibilities of cooperation which go beyond those enabled within the family or clan, but that must necessarily enable new forms of distrust: ‘as in a family business, these affinities raise expectations of disinterested behaviour and sympathy which tend to intensify distrust and turn disagreements about advantage into suspicion of betrayal.’ For Yack’s Aristotle, and I suggest for D errida, the political difference between dissensus and consensus is merely a matter of rhetoric. Politics is required by, is the very experience of, the existence of a political community in which decisions are made on behalf of the whole, but in which there is disagreement about means and ends. Taken to extremes, both disagreement and agreement threaten the destruction of politics: politics is the specific realm between identity (or pre-political community) and the destructive separation of the city into two factions. T here can be no ground for either difference or unity as rhetorical strategies. Franco Volpi (2007, 32) has argued that the rehabilitation of the question of ‘praxis’ in German political philosophy owes a great deal to those students of Heidegger who rejected his ‘appropriation’ of Aristotle’s practical philosophy for ontological purposes. Via the example and inspiration of H annah A rendt, of critical theory and of the French return to N ietzsche, this swerve away from the deconstruction of metaphysics towards a practical foundation of political thought might be seen as an exemplary forerunner of political agonism. My aim in this chapter has simply been to distinguish those thinkers of praxis from that other thinking which might more properly be called deconstructive. On occasion Derrida calls this latter mode ‘hauntological’, the pun, in French at least, indicating the latter’s continuity with, as well as its unsettling of, ontology as traditionally conceived. T he consequences of pursuing such a deconstruction of ontology might be seen as something like a studied indifference to politics, because it requires us to see the fate of politics within a larger frame, in which something more like a cosmology may eclipse the possibility of the cosmopolitical. T he practice of this philosophical indifference need not in itself be anti-political, as I have shown in relation to Derrida’s thinking. Indeed it is an essential claim of deconstruction that such indifference is the necessary precondition for a thinking of politics which would be open to the future.

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Bibliography Benhabib, S . (ed.) (1996), Democracy and Difference: Contesting the Boundaries of the Political (Princeton, NJ: Princeton University Press). C onnolly, W . (2002), Identity/Difference. 2nd edition (Minneapolis, MN : University of Minnesota Press). Derrida, J. (1993), ‘Heidegger’s Ear: Philopolemology (Geschlect IV)’, trans. J.P. Leavy Jr. in J. Sallis (ed.) Reading Heidegger (Bloomington, IN : Indiana University Press), 163–218. Derrida, J. (1997), Politics of Friendship, trans. G . C ollins (London: Verso). Derrida, J. (1999), Adieu: to Emmanuel Levinas, trans. P. Brault and M. N aas (S tanford, CA : S tanford University Press). Derrida, J. (2005), Rogues: Two Essays On Reason, trans. P. Brault and M. N aas (S tanford, CA : S tanford University Press). Derrida, J. and Dufourmantelle, A. (2000), Of Hospitality, trans. R . Bowlby (S tanford, CA : S tanford University Press). Dunn, J. (1979), Western Political Theory in the Face of the Future (C ambridge: C ambridge University Press). Flathman, R. (1998), ‘Strains in and around Liberal Theory: An Overview from a Strong Voluntarist Perspective’ in Reflections of a Would-Be Anarchist: Ideals and Institutions of Liberalism (Minneapolis, MN : University of Minnesota Press), 3–16. Fried, G . (2000), Heidegger’s Polemos: From Being to Politics (N ew H aven, CT : Yale University Press). Haase, U. (2007), ‘Dike and Justititia, or: Between Heidegger and Nietzsche’, Journal of the British Society for Phenomenology 38:1, 18–36. H eidegger, M. (1962), Being and Time, trans. J. Macquarrie and E. Robinson (Oxford: Blackwell). H eidegger, M. (1992), Parmenides, trans. A . S chuwer and R . R ojcewicz (Bloomington, IN : Indiana University Press). H eidegger, M. (1996), Holderlin’s Hymn ‘The Ister’, trans. W. McNeill and J. D avis (Bloomington, IN : Indiana University Press). H eidegger, M. (1999), Contributions to Philosophy: From Enowning, trans. P. Emad and K. Maly (Bloomington, IN : Indiana University Press). H eidegger, M. (2000), Introduction to Metaphysics, trans. G . Fried and R . Polt (N ew H aven, CT : Yale University Press). Heller, A. (1991), ‘The Concept of the Political Revisited’ in D. Held (ed.) Political Theory Today (C ambridge: Polity), 330–43. H onig, B. (1993), Political Theory and the Displacement of Politics (Ithaca, N Y: C ornell University Press). Merchant, O . (2007), Post-foundational Political Thought: Political Difference in Nancy, Lefort, Badiou and Laclau (Edinburgh: Edinburgh University Press). Mouffe, C . (2000), The Democratic Paradox (London: Verso). Mouffe, C . (2005), On the Political (London: R outledge).

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N ietzsche, F. (2001), The Pre-Platonic Philosophers, trans. G. Whitlock (Urbana, IL: University of Illinois Press). S chmitt, C . (1976), The Concept of the Political, trans. G. Schwab (New Brunswick, NJ: Rutgers University Press). S trauss, L. (1964), The City and Man (C hicago, IL: University of C hicago Press). Tully, J. (1995), Strange Multiplicities: Constitutionalism in an Age of Diversity (C ambridge: C ambridge University Press). Volpi, F. (2007), ‘In Whose Name? Heidegger and “Practical Philosophy”’, European Journal of Political Theory 6:1, 31–51. W hite, S . K. (2000), Sustaining Affirmation: The Strengths of Weak Ontology in Political Theory (Princeton, NJ: Princeton University Press). Wolin, S. (1996), ‘Fugitive Democracy’, in S. Benhabib, S. (1996), 31–45. Yack, B. (1993), The Problems of a Political Animal: Community, Justice and Conflict in Aristotelian Political Thought (Berkeley, CA: University of C alifornia Press). Yack, B. (1999), ‘Community and Conflict in Aristotle’s Political Philosophy’ in R . Bartlett and S . C ollins (eds) Action and Contemplation: Studies in the Moral and Political Thought of Aristotle (Buffalo, N Y: S UN Y Press), 273–92.

C hapter 7

Questioning the Law? O n H eteronomy in Public A utonomy Bert van R oermund

A ccording to the French philosopher C laude Lefort, democracy circles around ‘le lieu vide du pouvoir’ (Lefort 1986, 27). This metaphor is supposed to convey that a democratic regime somehow disarms political power by making vain the struggle for definitive victory. Democracy institutionalizes the division of political power as a provisional arrangement of society, to which no one is entitled by virtue of ontological credentials. I will investigate this thesis in some detail, bearing out its complexity. T hus I attempt to deepen our understanding of an agonistic account of law, which otherwise would remain perhaps just another variation on the theme of social contract theory. According to Aristotle’s (2005, ch.21) famous definition, a metaphor carries us over from a familiar realm of meaning into a new one: ‘Metaphor consists in giving the thing a name that belongs to something else; the transference being either from genus to species, or from species to genus, or from species to species, or on grounds of analogy.’ My problems with regard to Lefort’s spatial trope arise at both ends of that journey: what meaning are we supposed to be familiar with? W hat new meaning are we supposed to discover by following the suggestions of the familiar? Prior to answers I cannot even begin to translate the metaphor of the ‘lieu vide’. Is it an ‘empty place’ (Flynn 2006, 148, 157)? An ‘open place’ (Dallmayr 2006)? A void or a vacant place? I shall briefly take up the familiar end first. In Section 1 I argue that neither the ancient conception of place nor the modern conception of space provides us with a better understanding of democracy. T hus I will drop the metaphor and focus directly, in S ection 2, on the account of democracy Lefort aims to offer. It will appear to imply more than I announced in the previous paragraph. I will explain in the third section why democracy is ‘agonistic’ in a much more radical sense than he himself has advocated: its staging of the demos (the People) is never on stage although it is a crucial part of the political process. I will try to show how this predicament allows democracy to be what we undoubtedly claim it to be: (1) a way of decisionmaking; (2) by the People to their own benefit; (3) as part and parcel of the rule of law. It will appear that these features entail various forms of heteronomy lying at the heart of what democracy allegedly amounts to: public autonomy. I will point to three forms in particular: (1) the autocratic initiative needed to get democracy going; (2) the unjustified decision on membership preceding the

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deliberation of the members; (3) the demands of justice over and above those of the common good. Empty Places? What would ‘an empty place’ normally mean (Lefort 1981, 125–6; cf. Lefort 1986, 265ff.)? W hat do I mean when I say that there were many empty spots on the walls, last time I visited MoMa? O r that the death of a friend left an empty place at the dinner table, last time we met with the group? It means that we miss something or someone in a certain environment; that we are aware of something that should be there, someone who should be there while the environment is still pointing to this something or someone by leaving a fitting space open. The difference between empty and full is apparently thought from the pole of the latter rather than the former, not unlike the difference between poor and rich, or sleeping and being awake. There is a preference in the difference, to borrow a succinct and felicitous expression from Bernhard W aldenfels (1994, 202f.), i.e. the difference originates in a certain preference for or fascination with the preferred pole. But if we would depart from here in understanding the metaphor of the ‘lieu vide’, we would immediately be carried into the direction into which Lefort does not want to travel. T his is the direction of the vacant place, which for him is utterly problematic (Lefort 1986, 27, 266). O ne does not have to be a Freudian to guess why. O n this account of things democracy would amount to a generalized and persistent combat to occupy this vacant place. T his is why Kant (1796, BA 27) famously rejected democracy: ‘weil alles da Herr sein will [since everyone wants to be master there].’ And he was neither the first (cf. Rousseau 1762 [1964], III.4) nor the last one (cf. Schmitt 1926 [1923], 37).���������������������������������� This ��������������������������������� kind of sustained battle is arguably the exact opposite of what Lefort had in mind. For it encourages people in all camps to forge as many ontological arms as they can invent and wage a war of all against all. If we try to formulate what would be an empty place from a more detached point of view (detached, that is, from our preferences), we run into similar and other difficulties. From an ancient, Aristotelian conception of place the formula amounts to a pleonasm. From a modern, N ewtonian view, however, it ushers in a contradiction. Let me explain. A fter a long discussion in his Physics, A ristotle (1957, IV.4.212.a6) concludes that place is ‘to peras tou perichontos somatos’, i.e. ‘the surface edges of the surrounding body’ (which is contiguous with the surrounded body). S o the place (sc. of an object A) is: the immediate, immobile edges of what surrounds A. It follows that the universe is not at a certain place because it is not surrounded by anything. It is itself surrounding everything, though not immediately. It also follows that not everything existing is at a certain place. Attributes like wisdom or whiteness are not, while bodies that are capable of movement are in relation to a non-moving environment or ‘envelope’, which may itself be capable of movement in relation to a wider envelope. For instance, the water of the river is between the banks,

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but the place of the banks becomes an issue only if and when they change place within the larger surroundings of a valley. It follows, thirdly, that a place is always relative to a void, i.e. ‘a place without anything in it’ (Aristotle 1957, IV.4.208.b27–8). It does not matter what is surrounded by the edges surrounding as long as they close themselves around ‘something’. This something is, as it were, the internal accusative of surrounding and has no ontological status of its own. I sometimes wonder whether Lefort wanted to revert to this ancient or A ristotelian notion of place, which is still part of ordinary language, possibly also ordinary political language. I doubt, however, whether it is still part of political theory after H obbes. A hundred years before Hobbes, in Renaissance Italian philosophy, Aristotle’s treatise of place was already subject to the kind of criticism that in retrospect we recognize as modern. In early Modernity, place becomes a function of space, precisely in so far as it coincides with a set of co-ordinates which are ordered on each of the three axes of space. W hat, for instance, Francesco Patrizi (1529–97) does is to take over virtually all properties of place acknowledged by Aristotle and to reformulate them in spatial terms (see Leijenhorst 1992). A ll place can be determined by reference to incorporeal, three-dimensional extension, and these dimensions exist independently of and prior to material bodies. T his, indeed, is the concept of space, which lies at the heart of modern, or rather classical, natural science. O n this view places can only be void in the sense of being vacant: it is possible that at the point identified by the co-ordinates, there is nothing present. But this is immaterial for there being this place. N o place is empty in the sense that it is left undetermined or even underdetermined, obviously. T hat would be self-contradictory. Note that the modern conception of place yields a meaning of ‘vacant’ that is different from the previous one. It is not a normative meaning, inflated by our preference, by what we miss, by what should be there. R ather it is a factual meaning, governed by the observation that at a certain place, determined by values x, y, z, something is there or not there, as the case may be. It is difficult to assess what this would yield with regard to the ‘lieu vide’ in political terms when it comes to understanding democracy. T hough perhaps it would rule out the conception of democracy as a persistent battle for power by everyone, it seems to introduce something else that Lefort (1986, 268) explicitly rejects: the idea that it is ontologically determined what political power ‘really’ is, so that we can compare claims to power with these determinations and establish who deserves to hold ‘real’ power and who does not. (While this interpretation would certainly be in line with Lefort’s argument against totalitarianism, I am less certain whether it is the only interpretation that makes sense. It might well be that a legal order is precisely this quasi-mathematization of political space in terms of ‘dimensions’ which allow us to determine the place of political power qua legal power. Let me come back to this at a later stage.) So I conclude that with regard to the familiar end of the metaphor of the ‘lieu vide’ we are left with a feeling not unlike that of Alice after having read Jabberwocky:

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Law and Agonistic Politics It seems very pretty … but it’s rather hard to understand … Somehow it seems to fill my head with ideas – only I don’t exactly know what they are! (Carroll 1954 [1872], 154)

Calling the Law into Question? Let us try again to make sense of the metaphor, this time by concentrating on the new understanding of democracy it purports to convey. We should first of all appreciate Lefort’s thesis on the deep structure of political power. Seen from the point of view of an agent in a polity, political power is power over the polis rather than a polis. That is to say: in order for her to think, speak and act politically the polis has to be ‘staged’ as a bounded whole. And just as one can see the boundaries of planet earth only from a point of view in outer space, one can refer to society as a whole only from a vantage point that this society considers to be beyond society, i.e. to say (minimally) from a vantage point that is regarded as being not identical with any of the private interests in society. It should be convincingly staged as transcending them all. In a similar vein, Flynn (2006, 158) writes: ‘It is with the gesture that power makes towards something outside itself that the society diverges from the sum of its empirical interests.’�������������������������������������������� ������������������������������������������� O f course one does not have to be actually present at that point or place. But one has to imagine it and make it noted as a point of reference in one’s political actions. Political power, however modest, can only be exercised with reference to this source from which power in this polity, ultimately power over the polity, emanates. In Rousseau’s terms, the Lawgiver is part and parcel of every political enterprise (see H onig 2001). A democracy stages, as every political regime must do, this place, or point, or referent, beyond the horizontal relationships within the polity, which allows political agents to refer to ‘the source’ of their power claims. On account of Modernity, this source or place is ‘the People’ rather than, for instance ‘God’ or ‘the cosmos’. But this does not entail that society becomes entirely immanent to itself. A s Flynn (2006, 150) notes in his account of Lefort’s view, ‘Modern society maintains an exteriority from itself, which is what permits it to have a quasi-reflection on itself.’ In order to avoid misunderstandings it is probably apt to add that this format of political discourse does not entail, on any account of the matter, that society reflects on itself as human individuals do (at least some of them): by operating brain processes. For all we know, society has no brain, let alone a super-brain. The only thing we assume is that agents who are engaged in political action, cannot evade making references to ‘the People’ in this reflexive sense, which comes to light, for instance, in expressions like ‘mutually’, ‘together’, ‘general’, ‘public’, ‘national’, ‘communal’, and their ilk (including their opposites) (see Lindahl 1998). Lefort argues convincingly that this exteriority under the constraints of Modernity can be staged in very different ways. Totalitarianism makes an appeal to ‘the People’ as clear and distinct as democracy does. Totalitarianism is not the antithesis of democracy, but its pathological form, a fatal departure from its ambiguity. It imagines ‘the People’ as a whole being incarnated in the body of an

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extraordinary human agent, be it a singular individual (the leader) or a singular group (the party). Democracy, on the contrary, keeps the referent of this political gesture as symbolic as the gesture itself. T he wholeness of the People is realized precisely in the moment it is deferred, and vice versa, it is deferred in the moment it is realized. T his is what happens, for instance, in periodical general elections, when individuals publicly appear as individuals to elect their representatives; when, moreover the representatives in charge step down and become voters again (see Kelsen 1976 [1927]); when, finally, the majority produced by the constituency receives the right to rule only on condition that they warrant the minority the institutional chance to become a majority. T hus, democracy not only symbolizes that no one is entitled to exercise power over society on the basis of some ontologically warranted property, it also gives actual and even institutional form to this idea. The positive flipside of this coin is that democracy institutes a political order that in theories after Lefort were called ‘agonistic’ (see Honig (1993); Mouffe (1999); Schaap (2007). That is to say that it acknowledges and accommodates social division and conflict as constitutive for a polity’s flourishing. D emocracy – in the words of Flynn (2006, 150) again – is the sustained promise of ‘an interrogation that will call the Law and all authority into question’. (Note the capital ‘L’ in ‘Law’. According to the context, it indicates any figuration of the formal referent of ‘the Other’.) Let us consider how radically this concept of agonistic politics, more specifically the concept of the agōn should be taken. Indeed the model of the agōn is mostly used to argue that politics is more than management, and democracy more than management by consensus. It usually stresses that dissensus is central to politics, not only in the sense that we cannot get rid of it, but also and more importantly in the sense that it is constitutive of the pursuit of the common good. T his is perhaps why we find the core of agonistic theory already in a little apposition to the very first account of popular sovereignty: in the Social Contract. In one of his footnotes on the Marquis d’Argenson, Rousseau explains that the common interest can only be found in the opposition of private interests, which entails that this opposition has to be played out in order for the citizens to capture the common interest: ‘Every interest,’ says the Marquis d’Argenson, ‘has different principles. The agreement of two particular interests is formed by opposition to a third.’ He might have added that the agreement of all interests is formed by opposition to that of each. If there were no different interests, the common interest would be barely felt, as it would encounter no obstacle; all would go on of its own accord, and politics would cease to be an art. (Rousseau 1762 [1964], II.3)

N ow agonistic theory is often just that: an appendix to social contract theory. It urges us to acknowledge that each private interest should register as a virtual contribution to the common interest. This ‘each’ suffices to bear out the assumption that there is a finite set of subjects of these private interests, i.e. citizens. At the minimum we presuppose a set of parameters to construe this finite set, i.e. some

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criteria of citizenship, none of which will coincide with a private interest taken into account. Even if one would object that citizenship is a much too binary notion and that membership of democratic polities comes in shades, the problem remains the same in principle. T his presupposition amounts precisely to that of people appearing for themselves as a bounded whole. Thus the sting of conflict is removed from politics as people mutually recognize to have already something ‘in common’. This is precisely what the predicate ‘agonistic’ usually expresses, which means that agonistic theories would bring us nothing new. T hey would boil down to variations on the theme of social contract theory: it is logically impossible to determine by way of the social contract who are to be parties to that contract. Eventually, these theories bring us before the abyssal question on what basis such commonness is established. Boundaries have to be set, as the traditional logic of sovereignty underlines. The rejoinder to this line of criticism usually is what I call Lefort’s negative thesis: democracy is a deferral of ontologically warranted final authority vested in the People. D emocracy has to set boundaries all right, but it sets them provisionally so that they can always be revisited and revised. H owever, if there is no positive flipside to this thesis, it remains evasive on at least three counts (see Loose 1997). Firstly, it is contradictory to set boundaries that are always revisable. It means that either you haven’t really set any boundaries (but rather uttered strong wishes) or that they are not really always revisable. S econdly, it is gratuitous to announce that the boundaries you have set are always revisable, as long as it does not come across in what light they are revisable (human rights promotion, for instance) and in what light not (boosting GNP , for instance); which is just another way of setting some non-revisable boundaries. Thirdly, it is illusory to think that you can make collective decisions and revise the framework of your decisions simultaneously. The Ag�� ō� n between Power and the Place of Power I am not suggesting that there is a positive flipside to Lefort’s thesis as it is usually understood. I think we need a different understanding of it before we can discover the positive flipside. My argument begins with the observation that Lefort’s metaphor of ‘the place of power’ invites us to make a distinction between ‘power’ and ‘the place of power’. The place of power is suggestive of where power emanates from, where it finds its origin, where it is ‘at home’. In brief, it stands for the representation of rightful power. R ightful power is what is staged in a polity in order to stage political power. T his is, for instance, why N egri (1992) rejects Lefort’s theory as crypto-constitutionalism. But the staging is not on stage. This means that the acts of staging, which by necessity escape what is staged, do not necessarily count as exercising political power. But certainly they have to count as exercising power in politics. A ll sorts of behaviour, e.g. doing business, hiding weapons, worshipping gods, teaching, socializing and, indeed, murdering, cheating and stealing are forms of exercising power in politics, and a lot of it is going on

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backstage. It is in fact very difficult to tell what of what is going on backstage is contributing to the staging and what is not. Part of the power exercised in politics is even exercised inadvertently, since it is perceived as power by other parties than the agent herself. S ocrates is the classical example of someone who was brought to trial for exercising power in politics while what he sought to do was philosophy. For all we know, he did not attack or insult the inhabitants of ‘the place of power’, i.e. the gods. H e largely disregarded them while philosophizing, thus giving rise to the accusation that he made them ridiculous. S o from what we could call a N ietzschean view of power (G erhardt 1983), political power ‘on stage’ is just one among many guises of power ‘off stage’ exercised in politics. As all power it hinges on specific forms of imagination (Lindahl 1997), and Lefort is certainly right in pointing out that the conception of ‘the political’ as a specific realm of thinking, speaking and doing hinges on this exteriority of the polity to itself. Note however that ‘the political’ is not what is ‘behind’ all forms of everyday politics. It rather labels those tactics of everyday politics that appeal to this self-staging of the polity as a bounded whole. But prior to that appeal becoming available the stage is set by acts that do not necessarily take place on stage. This priority is a conceptual rather than a temporal one; that is to say, it accompanies all appeals to what is staged. Indeed, as the chapters by Jason Frank and Andrew Schaap in this volume show, to a large extent, politics is combat over the right stage without there being a stage for that combat. A nd yet, although it is true that the stage of the polity, i.e. the place of power, refers us to the constituent acts of staging preceding it, there is an epistemic strategy travelling in the opposite direction. In a sense, setting the stage does not precede the stage but anticipates its being set counterfactually, i.e. it has to present itself as constitutional rather than constituent power (see also Lindahl in this volume). For someone who intends to exercise power in politics (e.g. by murdering his opponent) it is important to realize that as soon as his credibility is challenged, he will have to revert to an explanation how his acts would have been legitimatized if only his dream of a new polis would have been realized. If there is truth in Machiavelli’s account of power in politics, credibility is something a prince cannot afford to lose or disregard to gain. T hus, much as constituent power precedes constitutional power and only appears legitimatized in retrospect, it also poses as constitutional power in prospect begging for recognition (see Merleau-Ponty 2003, 78). This ‘chiasm’ is typical of all ‘art’ in the broadest sense: craftsmanship, fine arts, governance, sciences. In the case of law it solves the ‘paradox’ of sovereignty: power over law and legal power in one fell swoop, as Foucault (1988) loudly laughed out. But there is little to ridicule once we realise that political power and power in politics, the place of power and power in place, are intertwined by prospect and retrospect. T his chiasm is the law of all law. So there is, I submit, a basic sense in which ‘the Law’ cannot be called into question or interrogated, not even in a democracy or, perhaps, not in a democracy in particular. In a democracy the people refer to ‘the People’ qua plural self. N ow what is absolutely crucial in Lefort is that the self of this self-reference is

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in principle an authoritative or ‘a better self’, notwithstanding the pathological forms this may take. (Note that this term ‘self-reference’ is crucially distinct from the one used by Luhmann and T eubner. T heir term hinges on sameness, mine on selfhood as an irreducibly specific mode of capturing sameness.) The self of the people takes authority over people; it governs what they should do to reach out to a common identity. This is indeed what the notion of ‘identity’ expresses as it conveys the intertwinement of sameness and selfhood. W ithout such intertwinement selfhood is empty or sameness is blind, to lend a famous Kantian phrase. T he predicament of a democracy is to survive as a demos without qualities, as Ulrich had to survive as a man without qualities. W e should bear in mind that the ‘peuple introuvable’ as Rosanvallon (1998; 2000) called it, is not a trouvaille. It is, as said, a predicament. H ow does this predicament allow democracy to be what we undoubtedly claim it to be: (1) a way of decision-making; (2) by the People to its own benefit; (3) as part and parcel of the rule of law? Let me explain. 1.  Autocracy surrounding democracy T here are probably various ways of interrogating authority, and one of them is certainly calling it into question as a matter of principle, perhaps not persistently, but ultimately. I think that this is the task of philosophical debate, spilling over into intellectual public debate in general. It certainly has an important role to play in a democratically ruled society. But we should be careful not to confuse democracy and debate. T his is what happened in W eimar, and our historians tell us how and why it fuelled the call for total authority. D emocracy is a way of negotiating authority, not a way of paralysing, let alone abolishing it. Philosophy may have all the time in the world, politics has not, and it belongs to the very staging of the political that politics always has to respond to (proclaimed) risks predicated on chance, danger and time (as risks invariably are). It is a fundamental Habermasian mistake to identify democracy and debate in the final analysis. In order to come to a decision, the debate should be opened and closed, and it cannot be opened or closed by debate (W aldenfels 2001, 49–50). D emocracy elicits that aspect of authority that irritates most: it needs some autocratic action to get and to keep it going. In other words: public autonomy as embodied by democracy cannot flourish without an element of heteronomy. 2.  Unjustified membership  Decisions in a democracy are allegedly taken on behalf of the people in the public interest. The very predicate ‘public’ reconfirms the primacy of self-inclusion, therefore exclusion of others on account of the plural self of the People. W ithout the presumption of a bounded whole, the predicate ‘public’ makes no sense. The public interest is a function of private interests, even if it is true that the two do not coincide. A t the end of the day, the public interest is to be accounted for in terms of the general definition of justice: suum cuique tribuere, i.e. to attribute to everyone his/her due. In order to do that, first and foremost in the basic sense of distributive justice, we have to know, indeed to enumerate, who

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counts as involved in the distribution and who does not. Not only should ‘the whole’ be known, but also the parts, the constituents, indeed the constituency. Each society exercises authority over the membership issue by those who are already self-proclaimed members. In other words: to account presupposes a set of those who count, as well as counting who is in this set. The set should be finite. This is the Law in its primordial sense, the Law of all law: somehow the formal oneness of ‘the People’ has to be affirmed and articulated at the moment its substance disappears beyond the horizon of the polity. It is impossible to say who we are if we don’t say what we are, but we can say it provisionally, reluctantly or tacitly. This affirmation is the nomos that cannot be called into question without being called upon. Everyone who says that it should, or should not, does not understand its pertinence: it cannot, although it has to. T he real agōn is not between different conceptions of the place of power; it is between the place of power and power, the representation of power and the tactics of power. It is the rupture between the People and the population. T hus, this notion of nomos entails a second element of heteronomy in public autonomy. 3.  Justice beyond the common wealth O ne more issue needs to be addressed: why would this more radical account of agonistic theory offer us a better understanding of democracy as inherent to the rule of law? Inversely, why would it enable us to claim that the rule of law is about more than the infinite revising of the common good? A s H annah A rendt has argued, if nothing is considered to be right apart from the (common) good, and that good is what is good for the people, good for (an) ‘us’, even if this ‘us’ is ‘as large as mankind itself’, justice is in fact nothing but a generalized incantation of the N azi ideology: Recht ist was dem deutschen Volke nützt. Arendt (1973 [1951], 299) observes: ‘Hitler’s motto that “Right is what is good for the G erman people” is only the vulgarized form of a conception of law which can be found everywhere and which in practice will remain ineffectual only so long as older traditions that are still effective in the constitutions prevent this.’ To escape from Arendt’s critique I propose a less orthodox account of the common interest, which democracy is particularly apt to serve. I have to appeal here to what Lefort’s teacher Merleau-Ponty tried to capture by his notion of the entrelacs, the chiasm, the bodily intertwinement, of subject and world (Merleau-Ponty 1964, 177f.). W e should begin by dropping the idea that truth is a value, some would say a preferred value, that propositions can take. Truth is what we experience intermittently in intertwinement with being. It is what happens for instance in art. When a painter paints he not only ‘feels’ what the paint does to colour, he even feels like paint for a moment, as if he had become paint himself. But he can never dwell at this point, it escapes him as soon as he gets there, and then he has to struggle to get that experience again. H e always reaches at what is never reached. T his is why truth is struggle, because it is but given in an ‘entrevoir [catching a glimpse]’, and so it is never given. Intertwinement with being is never completed in the sense of perfect atonement, although it never ceases to appeal to us. A similar line of

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thought inspires Alex Thomson’s reflections on Heidegger’s polemos-dike in his contribution to this volume. T homson rightly emphasizes that polemos must not be understood in the anthropological sense – which was Schmitt’s fallacy. Schmitt claimed that the formal distinction of ‘we’ and ‘them’ that is constitutive of politics has the anthropological sense of the distinction between friend and foe. H eidegger wants to take polemos in the metaphysical sense – the sense in which there is strife about truth, but first and foremost strife in truth, as Thomson puts it. As Merleau-Ponty’s (1960, 119f.) analogy between painter and politician suggests, this also holds true for the common interest as pursued by ‘the people’, the demos of democracy. Its interest is an inter-esse, a being in between community and reality, an entrelac as much as an entrevoir. W hat the expression of the common interest tries to get across is that it is not identical with generalized preferences. R ousseau made the point at a much earlier stage, though in his own rather obnoxious way: ‘there often is quite a difference between the general will and the will of all’ (Rousseau 1762 [1964], II.3). Precisely because law is a political artifact and politics starts out by self-inclusion, the common interest is not ‘right’ by definition. It has to reflect a heteronomous surplus: the awareness that there is community beyond community, i.e. beyond the polis we are part of. But this is an intermittent awareness. H ere again, intertwinement with reality, i.e. the feeling that we are part of a proto-polis of which we are members, is an experience that is interrupted as soon as we sense it. W e are thrown out of the realm of justice at the moment we believed to be one with it, and then we have to start all over again because we remember being there and grapple for what is yet to come. T his is why justice, like truth is polemos. Demos at the place of power is itself empty unless we situate popular sovereignty at the intersection of power constituting law and law constitutionalizing power. Between constituent and constitutional power there is the agony of a Moebius strip (to trade one metaphor for another) – if any path on the outer side of the strip is pursued far enough, it will first transgress into a path at the inner site and then return to itself. The agony is that one loses one’s grip on what is inside and what outside the polity (W aldenfels 2006; cf. Van R oermund 2006; Lindahl 2004), but this precisely allows one to play with the notion of a border – without doing away with it. What kind of play would that be? It is the play between what is said and the saying of what is said. We are familiar with one specific mode of that play, the performative contradiction, which is of course not a contradiction at all, but a classical contrast between actus and thesis. But contrast is not the only mode of this relationship. A part from there being more or less sharp contrasts, there can be more or less overlap, or even comment between the saying and the said. T here are so many ways to say that the moon is yellow, that it can become either gold or grey in the perception of the audience. In a similar way one can interrogate the Law of the law or the authority of the law, to apprehend ‘the indirect language’ or ‘the voices of silence’ of the Law (see Merleau-Ponty 1960, 63ff). The institution of democracy facilitates this apprehension, simply by interrupting the chiasm of constituent and constitutional power at regular and irregular intervals. T his is of

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crucial importance to make these heteronomous voices of silence heard. For the chiasm tends to perpetuate itself, as power is interested first and foremost in only one thing: continuation. N othing is guaranteed by this institution or anticipation of interrupted power with regard to the common interest, except one thing: that the majority leaves the minority the chance to become a majority. Acknowledgements An earlier version of this chapter was given in a workshop on Lefort with Bernard Flynn, convened by Jenny Slatman. Tilburg University, 24 November, 2006. I thank Professor Flynn and the audience for valuable comments. I am also grateful for the comments received during the workshop on Law and Agonistic Politics, organized by A ndrew S chaap at Exeter University, in particular from D ario C astiglione and A lex T homson. Last but not least I am indebted to the usual suspects of our research group at Tilburg (Hans Lindahl, David Janssens, Luigi C orrias and N anda O udejans). Bibliography Arendt, H. (1973) [1951], The Origins of Totalitarianism, new edition (New York and London: Harcourt Brace Jovanovich). A ristotle (1957), The Physics I–IV (C ambridge, MA , and London: H arvard University Press – W . H eineman Ltd). A ristotle (1968), Poetics (O xford: C larendon Press). Carroll, L. (1954) [1872], Alice’s Adventures in Wonderland. Through the Looking Glass and Other Writings (London: C ollins). Dallmayr, F. (2006), ‘Bernard Flynn, The Philosophy of Claude Lefort: Interpreting the Political’, Notre Dame Philosophical Reviews. DOI : http://ndpr.nd.edu/ review.cfm?id=6481, accessed 17 O ctober 2008. Flynn, B. (2006), The Philosophy of Claude Lefort: Interpreting the Political (Evanston, IL: N orthwestern University Press). Foucault, M. (1988), Power/Knowledge. Selected Interviews and Other Writings 1972–1977, ed. C. Gordon (New York: Pantheon Books). Gerhardt, V. (1983), ‘Das “Prinzip des Gleichgewichts”, zum Verhaeltnis von Recht und Macht bei Nietzsche’, Nietzsche Studien 12, 111���� –��� 33. H onig, B. (1993), Political Theory and the Displacement of Politics (Ithaca, N Y: C ornell University Press). H onig, B. (2001), Democracy and the Foreigner (Princeton, NJ: Princeton University Press). Kant, I. [1796] (1964), Zum ewigen Frieden: Ein philosophischer Entwurf (����������������������������������������������� D armstadt: W issenschaftliche Buchgesellschaft).

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Kelsen, H. (1976) [1927], ‘Demokratie’ in Die Wiener Rechtstheoresticshe Schule (W ien: Europea Verlag; S alzburg: Universitätsverlag A . Pustet, 2Bd.), 1743���� –��� 76. Lefort, C . (1981), L’invention democratique: Les limites de la domination totalitaire (Paris: Fayard). Lefort, C . (1986), Essais sur le politique, XIXe–XXe siècles (Paris: D u S euil). Leijenhorst, C .H . (1992), Francesco Patrizi’s Concept of Space (MA thesis, Utrecht University). Lindahl, H.K. (1997), ‘Sovereignty and Symbolization’, Rechtstheorie 28, 347– 71. Lindahl, H.K. (1998), ‘Democracy and the Symbolic Constitution of Society’, Ratio Iuris 11, 12–35. Lindahl, H.K. (2004), ‘Inside and Outside the EU’s “Area of Freedom, Security and Justice”: Reflexive Identity and the Unity of Legal Space’, Archiv für Rechts- und Sozialphilosophie 90:4, 478–97. Loose, D . (1997), Democratie zonder blauwdruk. De politieke filosofie van Claude Lefort (Best: D amon). Merleau-Ponty, M. (1960), Signes (Paris: G allimard). Merleau-Ponty, M. (1964), ‘L’entrelacs – le chiasme’ in Le Visible et l’Invisible: Suivi de notes de travail, ed. C . Lefort (Paris: G allimard). Merleau-Ponty, M. (2003), L’institution dans l’histoire personelle et publique: Le problème de la passivité, le sommeil, l’inconscient, la mémoire. N otes de cours au C ollège de France (1954–55), ed. D . D armaillacq, C . Lefort and S . Ménasé (Paris: Belin). Mouffe, C. (1999), ‘Deliberative Democracy or Agonistic Pluralism?’, Social Research 66:3, 745–58. N egri, A . (1992), Le pouvoir constituent: Essai sur les alternatives de la modernité, trans. into French by E. Balibar (Matheron, Paris: PUF). R osanvallon, P. (1998), Le peuple introuvable: Histoire de la représentation démocratique en France (Paris: G allimard). R osanvallon, P. (2000), La démocratie inachevée: Histoire de la souveraineté du peuple en France (������������������ Paris: G allimard). Rousseau, J-J. (1762) [1964], Du contract social: ou principes du droit politique (Paris: G allimard). Schaap, A. (2007), ‘Political Theory and the Agony of Politics’, Political Studies Review 5:1, 56–74. Schmitt, C. (1926) [1923], Die geistesgeschichtliche Lage des heutigen Parlamentarismus. ������������������������������������������������������ 6. Aufl. 1985, Nachdr. d. 2 (Aufl., Berlin: Duncker & H umblot). Van Roermund, B. (2003), ‘First-Person Plural Legislature: Political Reflexivity and Representation’, Philosophical Explorations 6:3, 235–50. Van Roermund, B. (ed.) (2006), ‘Special Issue on Waldenfels’ Phenomenology and Legal Philosophy’, Ethical Perspectives 13:3. W aldenfels, B. (1994), Antwortregister (Frankfurt: Suhrkamp).

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W aldenfels, B. (2001), Verfremdung der Moderne. Phänomenologische Grenzgänge (Göttingen: Wallstein Verlag). Waldenfels, B. (2006), ‘Inside and Outside the Order: Legal Orders in the Perspective of a Phenomenology of the Alien’, Ethical Perspectives 13:3, 359–82.

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C hapter 8

A gonism, A ntagonism and the N ecessity of C are Keith Breen

A gonistic theory claims to offer a radical understanding of politics and, more narrowly, democracy, that is distinct from the understandings underpinning traditional liberal pluralism, on the one hand, and deliberative democratic theory, on the other. W here liberal pluralism stresses bargaining over individual interests and deliberative democrats mutual understanding and consensus through dialogue, agonistic democracy privileges plurality, difference and contestation. In this there is arguably a palpable link between contemporary agonists and the work of Hannah Arendt. She, like they, stressed the irreducible plurality of opinions, the importance of keeping diversity and difference in sight, and the striving, contestatory nature of all genuinely political endeavour. However, some agonists, specifically Chantal Mouffe and those influenced by her, believe Arendt, in emphasizing equality and free interaction as the essence of political life, endorsed an unrealistic vision of the political that blinds us to the realities of domination, coercion and hostility. Following Carl Schmitt, Mouffe insists that the defining features of the political, what distinguish it from other forms of human activity, are exclusion and enmity. A radical politics, a politics which wishes to break with existing hegemonies, must in her view be one which acknowledges the primacy of ineradicable antagonism. H ere I concur that on one level this view of A rendt is largely correct, that she did attempt at a number of junctures to purge the political, as both descriptor and evaluative category, of significant elements of violence and coercion. However, I also argue that Mouffe herself stands guilty of the very same turn. For it is the avowed goal of her political thought to illuminate the ways in which antagonism, relations of enmity where contending parties share no ‘common ground,’ can be transformed into relations of agonism, where partisans of conflicting political projects nonetheless ‘recognize the legitimacy of their opponents’ (OP, 20). A s a number of critics have pointed out, in desiring this transformation Mouffe, despite her insistence on the ontological primacy of antagonism, moves very close to the   When citing Mouffe’s key texts the following abbreviations are used: OP – On the Political; RP – The Return of the Political; DP – The Democratic Paradox. W hen citing key Arendt texts, the following are employed: HC – The Human Condition; OR – On Revolution; CR – Crises of the Republic; IP – ‘Introduction into Politics’. Other cited texts follow standard H arvard conventions.

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deliberative democrats she has long condemned as naive. T his criticism, however, still leaves us with the problem of how to deal with antagonistic conflicts that cannot be converted into agonistic relations. It is my view that H annah A rendt, her shortcomings notwithstanding, provides us here with a key resource. Although celebrating political action as one of the highest capacities of human beings, their ability to spontaneously initiate the new, A rendt was intensely aware of its many dangers, in particular its potential to destroy the human artifice and the realm of human relations. H ence her ideal of amor mundi, an ideal which embodies an ethic of moderation and care that seeks to preserve the world from the ravages of time and human hubris. A conservative ethic jarring with the radical rhetoric of much agonistic democracy, amor mundi underpins Arendt’s important distinction between two historically antithetical conceptions of both war and law. W hereas the Greeks understood war as entailing the annihilation of the enemy and law as being inherently coercive, the Romans viewed the end of war as the making of treaties between erstwhile foes and law not as coercive but rather relational, as the very means of such treaty-making. For Arendt the profound significance of this Roman view of war and law is that it reveals an alternative understanding of enmitous relations, one that prevents our irreducible antagonisms from degenerating into cycles of limitless violence and atrocity. Contrasting Visions of the Political we remain unaware of the actual content of political life – of the joy and gratification that arise out of being in company with our peers, out of acting together and appearing in public (A rendt 1977, 263).

A rendt is distinctive in seeming to reject the entire tradition of W estern political thought. A lthough this view is somewhat misleading, it is clearly true that for her ‘the greater part of political philosophy since Plato could easily be interpreted as various attempts to find theoretical foundations … for an escape from politics altogether’ (HC, 222; CR, 134–9). The fateful error underlying the Western tradition, which has made us ‘unaware’ of the meaning of the political, is its emphasis on rulership and, by association, domination and violence, an emphasis that continues to inform our conceptions of sovereignty, of government, and even the very purpose of politics itself. A rendt believes this represents a fundamental category mistake, since politics properly speaking has nothing to do with coercion or power-over. Indeed, in contrast to life in the household, oikos, which was subject to brute necessity and the dominion of masters over slaves, the A ncient Greeks understood the polis as a sphere of life in which the citizen could interact freely with his fellows. In the sense of praxis, action entailed the ability to begin the unprecedented, to break with the past and initiate new beginnings. Acting and speaking in the public realm, citizens revealed ‘their unique personal identities and thus [made] their appearance in the human world’ (HC, 179). Because such

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appearance presumed an audience of fellow actors, action also presumed human plurality, which Arendt (HC, 175) defines as the twofold quality of ‘equality and distinction’, namely, human beings’ similarity in being human and yet uniqueness in terms of their individual identities. T he institutional expression of this plurality, equal citizenship, was the cultural means by which naturally unequal persons could deal with each other as co-builders of a common world. G iving rise to the intersubjective dimension of this shared world, praxis was necessarily ‘action-inconcert’, a form of endeavour identical with the capacity for speech and in which actors were both doers and sufferers, dependent on each other for their freedom. For Arendt (IP, 117; HC, 180), then, the real ‘meaning of politics’ only ‘comes to the fore where people are with others and neither for nor against them – that is, in sheer human togetherness’. It is from this perspective that she understood the exemplary political moment, the foundational act of constitution. T he act of constituting a polity or ‘we’ presumes the inception of an institutional web of relationships preserved by mutual promises or ‘rapports’ which spring from the contingent speaking and doing of particular actors who converge on an ‘agreed purpose’ (HC, 245). The significance of these legal rapports, as exemplified in the A merican R evolution, is that they establish an enabling connection between ‘two partners whom external circumstances have brought together’ (OR, 187– 8). Constitutional law is therefore at base ‘directive’ or relational, bringing institutionalized activities such as democracy into being, and only secondarily, if at all, ‘imperative’ or commanding, coercively determining what can and cannot be done (CR , 193). D irectly contradicting the traditional prejudice that all political beginnings are coercive, this prompts Arendt’s thoroughgoing separation of violence and power. Vocal and plural, power is the essence of all government and, because ‘inherent in the very existence of political communities,’ an ‘end-in-itself’ (CR , 151). Violence, on the other hand, is mute and monological, a physical mode of interaction relying on implements and without intrinsic relation to politics’ prime condition, plurality. Violence and power are therefore not only different phenomena, but in fact opposites. While ‘violence can destroy power, it can never become a substitute for it’, since ‘power comes into being only if and when men join themselves together for the purpose of action’ (HC, 202; OR, 175). And this power disappears the very moment actors cease to interrelate as free equals, when hostility and domination supplant solidarity and persuasive speech. T here are deep continuities between this vision of the political and C hantal Mouffe’s agonistic theory. Most obvious is the shared emphasis on plurality. For both the starting point is a presumption of enduring difference, that politics concerns the continual intersection of diverse opinions and perspectives. T his intersection is not merely an incidental feature of political life, but rather its very core, since without such both the basis and need for politics would disappear. Mouffe and her fellow agonists therefore agree with A rendt in rejecting those ideologies, from orthodox Marxism to ‘Third Way’ liberalism, which see or call for an ‘end’ to politics (Laclau and Mouffe 1985; OP, 356–3). Far from being liberating, these utopian dreams entail the elimination of the human power to

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initiate new beginnings, that is, freedom. This concern to affirm the political in and of itself also explains Mouffe’s insistence, with Arendt, on the ‘autonomy’ of politics, its being irreducible to economics or morality, typically conceived (A rendt 1968, 27; OP , 12–13). T o view politics as driven primarily by economic interest or subject to absolute moral principles is to falsely reduce it to a single motivating impulse and to deny the contingency, relativity and unpredictability of human life that frustrate all attempts to encompass political endeavour under universal rules. Finally, both believe the political identifiable with struggle and an ‘agonal spirit, the passionate drive to show one’s self in measuring up against others’ (HC, 194; see also D eranty and R enault in this volume). H owever, it is on their interpretation of struggle that A rendt and Mouffe diverge, revealing a decisive gap between their conceptions of the political. W hile her position is deeply ambiguous and tension riven, as will be shown below, A rendt pictures the agonal spirit as a striving to distinguish oneself as exemplary and best. S uch striving, she repeatedly insists, is possible only when there exist peers who are and think themselves political equals. Thus, genuine politics depends upon a fundamental relation of civic friendship – ‘an audience of fellow men’ with whom to deliberate and debate (HC , 198). C onversely, for Mouffe the fundamental basis of politics is not ‘freedom and public deliberation’ but ‘conflict and antagonism’ (OP , 9; RP , 2–3, 49). H ere struggle consists not in distinguishing oneself as best before one’s peers, but in domination and control of others. From Mouffe’s perspective, the reality of domination finds insufficient register in Arendt for the very same reason why it recedes from view within the work of deliberative democrats such as Jürgen Habermas and John Rawls. This is because A rendt, though she rejects their Kantian deontology, is at one with H abermas and Rawls in neglecting the principal criterion of the political, namely ‘the friend/ enemy discrimination’ (OP, 11; Schmitt 1996, 26). What leads Arendt astray here is her conviction that politics inheres in ‘sheer human togetherness’, a conviction analogous to the deliberate democrat’s emphasis on the ideal of ‘rational consensus’. T he error common to both is the supposition of a moment of perfect inclusion. T he problem with this supposition is not one of overly demanding ideals, but rather of ‘conceptual impossibility’ (Schaap 2007, 62). For every invocation of the rational or ‘reasonable’ presumes a delimitation of the ‘unreasonable’, just as every instance of togetherness presumes, as its sense conferring oppositional terms, distance and separation. In other words, the notion of inclusion necessarily evokes that of exclusion. Understood in political terms, this entails that every ‘we’ or political collectivity – whether a people, nation, or citizenry – depends upon a ‘they’ or ‘constitutive outside’ by which the collective defines itself (OP, 15, 89; RP, 114, 143; DP , 99–100). Political actors are therefore never solely with their fellow human beings, but always for some and against others. T he ineradicability of exclusion suggests, in turn, that far from being opposed, violence and power are interlinked, that the togetherness which underpins collective identities derives substance from and in crisis moments manifests itself as antagonism, by which S chmitt rightly understood a relation of hostility and enmity ontologically ‘constitutive of human

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societies’ (OP, 9, 16). Politics, contra Arendt, is consequently not the generation and maintenance of a ‘world in common’. Rather, as both the well-spring and ‘product of a series of practices attempting to establish order in a context of contingency’, politics is a battle for hegemony, for inscribing social existence with a particular structure and character (OP , 17, 51). A nd such inscription entails the repression of other possible social structures, repression which in extremis, when antagonisms undergo intensification, threatens violence and war. Taking Antagonism Seriously? Conflict, in order to be accepted as legitimate, needs to take a form that does not destroy the political association (OP , 20).

Mouffe’s central point is that, in veiling antagonism, Arendt and those like her (including Tully, Honig and Connolly) blind us to the core reality of conflict and dissensus with which reflection on the political must begin (OP, 131). The danger here, she warns, is that by not acknowledging reality, by insisting on a togetherness that is altogether chimerical, we actually increase the likelihood of ever-intensifying conflict. Mouffe (OP, 77–8, 82) thinks this unfortunately the case within contemporary Western democracies, where a ‘post-political’ consensual politics which hoped to transcend all we/they antagonisms has ironically fuelled such enmities, thereby enabling, amongst other developments, anti-establishment right-wing populism. To deal effectively with antagonism, then, we need first to take antagonism seriously. Undoubtedly, Mouffe’s critique highlights real difficulties with the Arendtian conception of the political. Arendt’s relational view of constitutional law, for example, implies the view that mutual promising on an ‘agreed purpose’ can occur without remainder, without there being citizens who vehemently reject what has been committed to in the foundational moment. H owever, what she neglects, especially in The Human Condition and On Revolution, is that this ‘agreed purpose’ which validates a determinate promise is always a specific purpose which necessarily rules out others. In making this determinate promise, actors cannot but deny rival promises and purposes. T he act of founding is therefore simultaneously an act of constitution and of proscription, a setting of ‘worthy’ as against ‘unworthy’ goals. A nd because proscriptive, it presumes constraint, the coercive command ‘this far and no further!’ (Keenan 1994; Lindahl 2006; Breen 2007). The neglect of coercion in founding moments is not simply an accidental feature of Arendt’s work, but stems in large part from the dualist ontology underpinning her thought, that is, her division between a ‘public’ realm marked by freedom and equality, and the ‘social’ and ‘private’ realms marked by need, necessity, and, ultimately, domination. Indeed, it is only on the basis of this questionable ontology that her claim that the political equates with being ‘in company with our peers’ makes any real sense (see D eranty and R enault in this volume).

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But if we agree with this critique, can we also say that Mouffe herself takes the issue of antagonism sufficiently seriously and thus escapes the failings she attributes to others? There are good reasons to doubt this. Although Mouffe seeks to reassert the primacy of antagonism, she nonetheless wishes to avoid the notoriously anti-pluralist and sanguinary implications of Schmitt’s antagonistic politics (RP, 117–33; cf. McBride 2003, 108–109; W enman 2003, 179–82). W here S chmitt saw the friend/enemy distinction as entailing enforced political homogeneity and a far-reaching rejection of liberal pluralism, Mouffe instead sees the possibility of instituting an internally pluralist liberal democracy that would allow for a ‘profound transformation of the existing power relations and the establishment of a new hegemony’ (OP, 52; RP, 4–5, 123). Crucially, this radical liberal democratic vision has a number of pre-conditions. Most significant is the transformation of antagonistic conflicts that threaten violence and bloodshed into relationships of agonism ‘where the conflicting parties, although acknowledging that there is no rational solution to their conflict’, nevertheless ‘see themselves as belonging to the same political association, as sharing a common symbolic space’ (OP, 21; DP, 101–103). H ere enmity and opposition are not eliminated, contra deliberative democrats, but ‘sublimated’ or ‘tamed’ into an ‘adversarial’ relation compatible with democratic rule. Key to this is the purging of political discourse of moral categories such as justice and right, ‘good’ and ‘evil’, since such ‘non-negotiable moral values’ encourage a ‘confrontation of essentialist forms of identification’ that necessarily dehumanizes one’s opponent, rendering him an ‘enemy … [that] must be eradicated’ (OP, 30, 76). Agonistic democracy, in contrast, avoids absolutist confrontations by harnessing conflict in a communally ‘integrative’ manner. Such is possible, Mouffe (OP , 28–31; DP , 13) insists, when there exist institutional channels and procedures through which genuine adversaries, partisans of ‘right and left’, are accommodated and can contest the basic meaning of their polity and its core principles. But such contest presumes a strong ‘common bond’, a commitment to the structure of the shared political association, and a ‘consensus on the ethico-political values of liberty and equality for all’ the endorsement of which distinguishes legitimate from illegitimate political projects (OP , 20, 121; DP , 13, 102–103). There are at least three problems with this account. The first, and most obvious, is that Mouffe’s agonistic theory ends up mirroring those of her deliberative democratic rivals. Like Rawls, she believes there must be fundamental agreement (consensus!) on the core values and overarching procedures that are to regulate, channel and legitimize political conflict. Like him, too, she insists upon a mutual regard or respect for our fellow citizens and their right to voice dissent (DP , 102– 103). S imilarly, echoing H abermas, she contends an authentic politics must be one which is critical, focused on ‘profoundly transforming relations of power’ so that heretofore suppressed vulnerable groups can find a political voice (OP, 2; DP, 19– 21). A s Knops (2007, 117) argues, these three factors together suggest she relies implicitly upon ‘the kind of open fair exchange of reasons between equals’ that she

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lambastes in others. D espite repudiating the ideal of rational deliberation, then, Mouffe concludes with a politics that is in its essentials distinctly deliberative. The second difficulty concerns a further incoherence in Mouffe’s position, her peculiarly quietist understanding of radical politics. Mouffe sees agonistic democracy as inhering in ceaseless contestation of established hegemonies, but she also claims such contestation cannot pose a fundamental threat to the terms of the political association. T he problem here, however, is that contesting hegemonies necessarily entails disrupting the conditions of the political association, since these conditions have been set by historically dominant groups precisely to exclude subaltern groups from the ‘common symbolic space’ (Schaap 2007, 68). A demand for meaningful economic equality, for example, cannot succeed without discrediting and abolishing many of the private property rights that have both impeded its realization and been constitutionally inscribed into capitalist democracies. S uggesting otherwise, that basic change can occur without reconstituting the political association, Mouffe therefore appears to simultaneously embrace and yet spurn transformative politics. Indeed, her agonistic theory misses the very point of radical democracy, which is not to enable adversarial contests between right and left, as Mouffe proposes, but instead to strive towards the triumph of progressive over reactionary movements (Vázquez-Arroyo 2004; Žižek and Daly 2004; S chaap 2007). Yet the most significant problem stems from Mouffe’s apparent denial of the ineradicability of many political antagonisms, the truth that they cannot be readily converted into agonistic conflicts. Although she believes antagonism to be ontologically constitutive of the political, her theory of agonistic democracy paradoxically suggests that this condition can largely be overcome. Indeed, the very purpose of democracy is said to be the keeping of ‘the emergence of antagonism at bay’ (OP, 16). Such containment is possible, however, only if one endorses an overly optimistic view of agonistic conflicts and conceals the true source of many antagonisms. As to the question of optimism, Mouffe’s contention that agonistic conflicts have an overall communally ‘integrative’ effect convinces solely on account of a severe curbing of the debates from which such conflicts arise. For instance, terrorists and fascists are excluded as illegitimate, as one might expect, but so too are multiculturalists and others who would use parliamentary means to institute pluralist legal frameworks conducive to the recognition of religious difference (OP, 123). The issue here is not whether Mouffe is right to think such recognition beyond the pale; rather, the problem rests in her all too abrupt reduction of the subject matter of legitimate political dispute. T he unfortunate result is that agonistic democracy now appears a partisan politics with no real partisans, where parties to disputes are largely of similar mind and contend over issues where little is at stake (McBride 2003, 109; Vázquez-Arroyo 2004, 15–16). By contrast, were legitimate political contestation given fuller scope and real differences admitted, we would no longer be in a position to confidently assume most present conflicts sublimable into adversarial relations typified by mutual respect and regard.

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A still greater difficulty presents itself here. Mouffe (OP, 25–9) employs Freud and others to show the importance of passion to political identification and motivation. T his is the affective aspect of human life perilously denied by rationalist political theories. H owever, in the very same breadth she proceeds to discount and prohibit one key well-spring of such passion – moral commitments to the ‘non-negotiable values’ of the right and the good. This prohibition clearly forces Mouffe into an implicit repudiation of the motivating basis of her own theory, the commitment to liberty and equality for all. It also bolsters the suspicion that agonistic democracy is in the end a politics of minor stakes where warranted moral indignation at oppression, injustice and cruelty has little place. But more problematic still is the spiriting away of perhaps the prime source of political antagonism, the undeniable reality that ‘the most intractable difficulties faced by modern democracies are those posed by competing moral universalisms’ (McBride, 2003, 125). Ironically, given Mouffe’s intentions, far from allowing a proper thematization of conflict and enmity, purging politics of the moral has the inverse effect of once again suppressing the dimension of antagonism. T hus it is clearly the case that Mouffe, despite the thrust of her rhetoric, is subject to the same difficulties which she attributes to Arendt and deliberative democrats. Asking us to face the ineradicability of political antagonism, she nonetheless seeks to domesticate this antagonism in a manner which downplays the intensity and stubborn endurance of hostile opposition. A lthough her attempt to lessen the possibilities of violence is laudable, it is also deeply worrisome insofar as it allows moments of ‘exception’, where antagonisms cannot be tamed but only addressed and lived, to recede from view. Predicaments and occurrences that fail to fit within ‘normal’ politics – from protest and civil disobedience, through to violent opposition and even war – are consequently left for the most part unexplored. Moreover, Mouffe neglects the one ethico-political question that any theory beginning with the friend/enemy discrimination should be expected to address: how ought we to behave towards those who are not simply adversaries but who are viewed, whether rightly or not, as our avowed enemies? W orse still, she appears to present us with a stark choice. Either our conflicts are sublimated and we relate as adversaries, or they are not and we remain antagonists who ‘treat their opponents as enemies to be eradicated’ (OP, 20, my emphasis). Mouffe (OP, 78–81) does gesture to Schmitt’s (1996, 53–5) critique of ‘humanitarian wars’ that encourage the demonization of opponents as inhuman, a critique which hinges upon an ethical (indeed moral) distinction between categories of ‘enemy’ who are to be defeated, even killed, but not expunged, and those who must be annihilated from the face of the earth. H owever, neither in Mouffe nor S chmitt (see S cheuerman 1999, 152–3) is this distinction properly explored and for the most part she speaks of the ‘enemy’ as one who must simply be eradicated. What is lacking in Mouffe’s thought, ultimately, is a defensible ethics of antagonism, an ethics to orient our actions in relationships of enmity.

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Antagonism, World and Care the human world is always the product of man’s amor mundi, a human artifice whose potential immortality is always subject to the mortality of those who build it and the natality of those who come to live in it (A rendt 2005b, 203).

C oncerned with delineating what is legitimate and illegitimate within democratic politics, Mouffe properly points to the necessity of limits. N o polity can consent to self-destruction, and thus there will be moments where actors will justifiably have to resort to coercion, even violence, to uphold non-negotiable ideals. H er mistake, however, is to think agonistic democracy can significantly obviate the need for coercive resort, a mistake which partly explains her silence on what limits should pertain in our strategic dealings with those standing outside the boundaries of accepted democratic interaction. T he danger with such silence, of course, is that it all too easily permits and enables perceptions of strategic contest as, in Weber’s (1948, 123) words, a contract ‘with diabolical powers’, a struggle for victory recognizing few distinctions between what may and may not be done. S urprising though it may appear, it is here that H annah A rendt proves enduringly important. T his is so because her ideal of amor mundi, ‘love of the world’, facilitates an alternative thematization of antagonism. However, we can understand the import of that ideal only by recognizing the complexity of Arendt’s broader position. For while she endorses, as we saw, a vision of the political that at key moments elides the reality of enmitous conflict, that vision remains deeply ambivalent throughout. T his is on account of a basic tension at the heart of her work: the conflict between her glorification of political action as the sui generis ability to institute new beginnings, and yet deep-seated fear of that very same capacity, of the threat it poses to human beings and the world they inhabit. A number of factors motivate Arendt’s hesitant stance. One is that although she imagines the political as inhering in the uncoerced interaction of free equals, she concedes such ‘has existed so rarely and in so few places that, historically speaking, only a few great epochs have known it and turned it into a reality’ (IP, 119). T he admission that historical realizations of the political as free interaction represent ‘islands in a sea or oases in a desert’ is significant insofar as it suggests that A rendt is offering an idealtype or vision that events repeatedly betray (OR , 275). Indeed, on occasions this is strikingly so, as when, for example, she breaks with her stark distinction between violence and power to acknowledge that in the ‘real world’ nothing ‘is more common than’ their ‘combination’ or, elsewhere, declares that war and violent revolution constitute the ‘two central political issues’ of the contemporary world (CR , 145–6; OR , 11, my emphasis). However, these doleful reflections on the contingent course of human history only partly explain Arendt’s ambivalence, for political action is itself seen as containing an inherent self-destructive impulse, the elements of antagonism and conflict she would like to excise from the bios politikos appearing in the end as nigh ineradicable aspects of that life. She praises the ‘agonal spirit’ and determination

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of the ancient citizen to ‘show through unique deeds or achievements that he was best of all’, and yet she remains profoundly mindful, contra Mouffe, of the disintegrative effect of this spirit (HC , 41). It is this spirit, she warns, which brought ‘the Greek city-states to ruin because it made alliances between them well-nigh impossible and poisoned the domestic life of citizens with envy and mutual hatred’ (Arendt 1990, 82; HC, 197). It is this spirit also which engenders hubris – ‘the political temptation par excellence’ – and the overweening pride that tempt us to unleash incalculable biological and cosmic forces upon the world or to compel others into conforming to our ideal conceptions of humanity (HC , 191; cf. C anovan 1992, 194). Moreover, the dangers of agonism are exacerbated by the ‘enormous risks’ intrinsic to action on account of its ‘boundlessness’ and ‘irreversibility’ (HC, 190–2, 230–6, 245). Arising from human plurality, action is the most meaningful of our activities, the sign of our spontaneous natality or freedom, but because bringing new and unforeseen processes into life, this natality can also take horrendously unpredictable paths which cannot subsequently be undone. T hus, the inner meaning of twentieth-century totalitarianism and warfare is for A rendt not simply the fact of terror or mass murder, but the chilling spectacle of natal action initiating chains of events that transgress all limits and lie beyond the power of actors to properly comprehend, let alone control. All this sits uncomfortably with Arendt’s equal emphasis upon being-with and civic friendship. It is therefore not implausible to view her as torn between two contradictory and irreconcilable currents, one of hope, a faith in the ability of human beings to engage cooperatively in the public realm, and one of tragedy, the insight that this ability has all too often been found wanting. T his contrasts quite strongly with Mouffe, who notwithstanding her realist pretensions exhibits unflagging optimism as regards the prospect of establishing a vibrant, contestatory and yet fundamentally stable form of democracy. What is lacking in Mouffe is thus what comes to the fore in Arendt’s darker moments, the perception that political life is fundamentally unstable and human affairs above all ‘frail’ (HC, 188–92). T he truth of frailty is especially evident in political life not merely because of human beings’ obvious limitations, their mutual dependence and fallibility, but also because politics repeatedly imperils the very condition of its own becoming, namely the ‘world’. Arendt understands ‘world’ in two interrelated ways. In the first it means the ‘human artifice’ of things and objects that relate and yet separate human beings, thus providing an objective home for their shared life (HC , 182). T he second meaning of ‘world’ is the intersubjective ‘in-between’ which ‘overlays’ the human artifice. Arendt intends by this the ‘web of human relationships’ generated by the convergence of ‘innumerable perspectives’ through speech and action (HC, 183–4; IP, 161). It is precisely these elemental aspects of human existence, the objective public in-between and the intersubjective web of relationships marked by a plurality of standpoints, that a politics impelled by hubris, antagonism and ideological zeal threatens to destroy.

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For politics to endure, then, so too must the plurality and diversity that form a rich, multifaceted world. On the basis of this insight and concern with politics’ self-annihilating tendencies, A rendt arrives at a political ethic that lauds natality and revolutionary beginnings and yet also points to the need for conserving the relationships and institutions that sustain political life. It was a symptom of ‘our loss’, she (OR, 223) claimed, ‘that these two elements, the concern with stability and the spirit of the new, have become opposites in political thought and terminology’, the one claimed by reactionaries and traditionalists, the other championed by ideologues and fanatics. T his loss is deeply problematic for it occludes a central truth of political life: that without fundamental change the polity slowly atrophies, but without vigilance and restraint it hurtles towards ruin. Insisting upon a profound interrelation of the ‘act of beginning something entirely new’ and ‘conservative care’, Arendt therefore seeks to meld revolutionary consciousness, the awareness that the terms of the political association must periodically undergo deep-seated revision, with ‘the old virtue of moderation’, of caution and wariness as regards the capriciousness of human deeds (OR , 202; HC , 191; cf. C anovan 1997). The contrast with Mouffe is again instructive. Where Mouffe’s agonistic theory celebrates radical contestation but concludes with a politics that is decidedly quietist, A rendt (1977, 192) holds to the promise of natality, of the possibility and need for human beings ‘to intervene, to alter, to create what is new’. Where Mouffe (OP , 28) disparages the virtue of moderation as complicit in a consensual politics which denies the political, A rendt understands moderation as paramount to all political endeavour, above all in those moments where consensus is lacking and our deeds threaten to degenerate into cycles of reaction and revenge. It is this dual emphasis on creating the world anew and care for what we create that prompts Arendt’s (HC, 238–43) analysis of the faculties of promising and forgiving, which together provide the bedrock of her ideal of amor mundi. C ountering irreversibility, the fact that once done no deed can be undone, forgiving breaks the stranglehold of the past and saves actors and their world from revenge. Countering action’s unpredictable boundlessness, promising delineates the terrain of the future through actual agreements to live together, on the one hand, and agreements not to commit certain acts, on the other (CR , 92). T his twofold promise can only be made and upheld by citizens who, recognizing the intersubjective ground of the world, mutually establish the parameters of their freedom. Indeed, the illusions of philosophy notwithstanding, without such promising the rights of men and women are idle fancy, for only through collective endorsement do such rights come into being (A rendt 1966, 290–302). Of course, Arendt’s primary referent for understanding the import of promising and forgiving is a domestic one where fellow citizens bound by bonds of civic friendship mutually constitute a polity held in common. Yet she also realizes that the very same moderation and restraint that inform our friendships must also inform our enmities. H ence her crucial distinction between two opposed modes of enmitous relation, a distinction she sees encapsulated historically in two very different understandings of warfare, the Greek and the Roman. As she depicts

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them, the Greeks believed politics limited exclusively to the polis, the sole space for free interaction among equals. It was there, protected by their city walls and hemmed in by the boundaries of a commanding law (nomos) which none could contravene, that citizens could debate and contend over the great issues of the day free from compulsion and the threat of violence (IP, 164). H owever, the necessary concomitant of that understanding was that freedom and the principles which guarantee it were themselves limited exclusively to the polis. O utside its bounds, within the household and in dealings with alien cities and barbarians, the logic of force and coercion ruled unchecked, where ‘“the strong did what they could, and the weak suffered what they must”’ (OR, 12). Under this view antagonism could not but take the form of unlimited aggression, conflict being inevitably a ‘war of annihilation’ without the possibility of mediating the divide between foes, and diplomacy simply a further ‘means of deception and cunning’ (IP, 165; HC, 247). T he R oman view of war was radically different, not least because, A rendt suggests, they claimed descent from a people who had suffered near annihilation – the Trojans. Unlike the Greeks, they therefore recognized the full implication of wars of annihilation, that as ‘one of the few mortal sins of politics’ they destroy not only their victims but also the world and thus, in a sense, even their perpetrators, leaving nothing behind but a desert wasteland (IP, 161, 175). A gainst this, the R omans drew on a concept of law (lex) as establishing a ‘lasting tie’ or relation between parties to articulate ‘a new outcome for war’s conflagration’, that it should conclude not in ‘yet another annihilation of the vanquished, but in an alliance and a treaty’ (IP, 176; OR, 210). The purpose of war, then, was not eradication and total victory, but peace and a new departure amongst erstwhile enemies. T he archetypal events here were the legendary truce concluded between Aeneas’s Trojans and the Latins and the historical compact between the patricians and plebes, which gave rise to the R oman nation without erasing the differences between either faction. Accordingly, the Romans conceived war not in the mode of the Greeks as the brutal cessation of all politics, but rather as the very ‘beginning of politics’, as a means ‘by which they recognized both themselves and their opponents’, thereby gaining ‘a new political arena, secured in a peace treaty according to which yesterday’s enemies became tomorrow’s allies’ (IP, 178, 183, my emphasis). It is impossible here to fully capture the complexity of Arendt’s espousal of the Roman world-view (see Taminiaux 2000, 173–7). Once again she strikes an ambivalent tone, admitting that R ome frequently failed to live up to its ideals in laying waste to whole civilizations, such as C arthage. S he also concedes the R oman view of law as establishing relationships cannot in the end be separated from the Greek notion of law as command, as coercively delimiting what can be done (IP, 184–9). T hus, the R omans too faced the problem of remainder, of their agreements necessarily inscribing exclusions, as is the case with all agreements. H owever, that in no wise diminishes the significance of Arendt’s interpretation of Roman warfare, for in it lies embodied the kernel of an ethic which sees the faculties of promising and forgiving at work not only in the relation between friends, but more importantly in the relation between enemies. T he result is profoundly salutary,

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helping us to avoid the reductive understanding of antagonism held by Mouffe and S chmitt, but also to delineate the principles that should guide and infuse our conflicts. T hus, viewed under the attitude of care the enemy is one who must be defeated, subjugated, yet solely in respect to that in which he represents a serious threat, not in terms of the totality of his person. O ur antagonisms remain ethical therefore if they avoid succumbing to the dehumanizing contempt where enemies are reduced to mere objects, if, as A rendt (CR , 167), quoting S orel, observed, they hold to a ‘spirit of fighting without hatred and “without the spirit of revenge”’. Basic to this, however, is the realization that whilst we are compelled to fight, even kill, our enemies, such fighting and killing can at best be justified, never legitimated and embraced, since the latter is inimical to the ground of worldly existence, our plurality (CR , 150–1). If this is so, then the ultimate goal of our struggles, if they are not to conclude in Pyrrhic victories which fan rather than abate the flames of hostility, must be the eventual re-affirmation of that ground and a reconciliation between warring parties, no matter whether such reconciliation proves elusive. T his all suggests a virtue ethics which places limits even on virtue, recognizing that ‘absolute goodness is hardly any less dangerous than absolute evil’ (OR, 81). For while the gravest conflicts are often rightly motivated by indignation at injustice and cruelty, a purist insistence on the rectitude of our values and ends lends itself all too quickly to a hubristic legitimation of further injustices and cruelties. Taken together these principles both make possible and give sustenance to the faculties of forgiving and promising in the very arena of human life where they appear in greatest need. T hey also give rise to a most basic and yet indispensable prohibition: that while the extreme of antagonism is killing, such killing should never, in the words of both Kant and Arendt, be such that it ‘“would make mutual confidence in … subsequent peace impossible”’ (Arendt 1982, 75, citing Kant). Bibliography A rendt, H . (1958), The Human Condition (C hicago, IL: University of C hicago Press). A rendt, H . (1965), On Revolution (London: Penguin). A rendt, H . (1966), The Origins of Totalitarianism (New York: Harcourt Brace & C ompany). A rendt, H . (1968), Men in Dark Times (New York: Harcourt Brace Jovanovich). A rendt, H . (1970), Crises of the Republic (New York: Harcourt Brace Jovanovich). A rendt, H . (1977), Between Past and Future: Eight Exercises in Political Thought (H armondsworth: Penguin). A rendt, H . (1982), Lectures on Kant’s Political Philosophy, ed. R . Beiner (C hicago, IL: C hicago University Press). Arendt, H. (1990), ‘Philosophy and Politics’, Social Research, 57:1, 73–103.

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Arendt, H. (2005a), ‘Introduction into Politics’ in The Promise of Politics, ed. J. Kohn (New York: Schocken Books), 93–200. Arendt, H. (2005b), ‘Epilogue’ in The Promise of Politics, ed. J. Kohn (New York: Schocken Books), 201–204. Breen, K. (2007), ‘Violence and Power: A Critique of Hannah Arendt on “the Political”’, Philosophy and Social Criticism, 33:3, 343–72. C anovan, M. (1992), Hannah Arendt: A Reinterpretation of Her Political Thought (C ambridge: C ambridge University Press). Canovan, M. (1997), ‘Hannah Arendt as a Conservative Thinker’ in L. May and J. Kohn (eds) Hannah Arendt: Twenty Years Later (C ambridge, MA : MIT Press), 11–32. Keenan, A. (1994), ‘Promises, Promises: the Abyss of Freedom and the Loss of the Political in the Work of Hannah Arendt’, Political Theory, 22:2, 297–322. Knops, A. (2007), ‘Agonism as Deliberation – on Mouffe’s Theory of Democracy’, The Journal of Political Philosophy, 15:1, 115–26. Laclau, E. and C . Mouffe (1985), Hegemony and Socialist Strategy: Towards a Radical Democratic Politics (London: Verso). Lindahl, H. (2006), ‘Give and Take: Arendt and the Nomos of Political Community’, Philosophy and Social Criticism, 32:7, 881–901. McBride, C. (2003), ‘Consensus, Legitimacy, and the Exercise of Judgement in Political Deliberation’, Critical Review of International Social and Political Philosophy, 6:3, 104–28. Mouffe, C . (1993), The Return of the Political (London: Verso). Mouffe, C . (2000), The Democratic Paradox (London: Verso). Mouffe, C . (2005), On the Political (London and New York: Routledge). Schaap, A. (2007), ‘Political Theory and the Agony of Politics’, Political Studies Review, 5:1, 56–74. S cheuerman, W .E. (1999), Carl Schmitt: The End of Law (Lanham, MD : R owman & Littlefield). S chmitt, C . (1996), The Concept of the Political (C hicago, IL: University of C hicago Press). Taminiaux, J. (2000), ‘Athens and Rome’, in D. Villa (ed.) The Cambridge Companion to Hannah Arendt (C ambridge: C ambridge University Press), 165–77. Vázquez-Arroyo, A.Y. (2004), ‘Agonized Liberalism: the Liberal Theory of William E. Connolly’, Radical Philosophy, 127, 8–19. Weber, M. (1948), ‘Politics as a Vocation’, in H.H. Gerth and C.W. Mills (eds) From Max Weber: Essays in Sociology (London: R outledge), 77–128. Wenman, M. (2003), ‘“Agonistic Pluralism” and Three Archetypal Forms of Politics’, Contemporary Political Theory, 2, 165–86. Žižek, S. and G. Daly (2004), Conversations with Žižek (C ambridge: Polity Press).

C hapter 9

T he S tranger in S ynagonistic Politics N athalie Karagiannis and Peter W agner

In our contemporary world, explicit and arbitrary exclusions from membership and participation in the determination of social and political life remain numerous. A nd even where such exclusions are in principle unwanted, they lurk in the background of many a liberally well-intended city. T hough women have gained the right to vote in many places around the globe, they still suffer from various types of injustice inflicted on their bodies, their family situation, their financial autonomy or their work possibilities. Although slavery is internationally forbidden, similarly, it is still practised more frequently than we would care to know and its prime victims are children. And even where slavery is not formally practised, work conditions can be so deplorable as to be comparable to it – and the international system of production, maintaining as it does huge ‘North–South’ disparities, favours social dumping. T he persistence of such conditions as well as the increased possibilities of movement for people – against a background of decades of either multiculturalist or assimilative policies in the case of Europe – have intensified demands for political asylum and economic immigration. A reflection on the stranger inside – a term by which we refer to lack of full citizenship status, whether in legal or ‘merely’ in social terms – and the stranger outside the ‘polis’ is, thus, one of the most acute contemporary issues. If we look at recent political theorizing in this light, a very mixed picture emerges. First, there clearly is an intensified interest, as one should expect (see Benhabib 2004; C avallar 2002; R undell 2004). S econd, however, those recent works do not yet seem to have altered the basic constellation in which traditional political theory either ignored the issue of the foreigner altogether or tended to view the stranger as a problem. T he advantage of the conventional approaches, though, is that rather clear-cut conceptualizations emerge from them, which can fruitfully be discussed to reveal important shortcomings of the usual accounts of the relation between full citizens and strangers. For our purposes, we will below very briefly discuss patriotism as the main aspect of communitarianism that engages with the stranger, cosmopolitanism as the main aspect of liberalism that engages with the vanishing ‘stranger’, and trust in international law’s procedures as the main such aspect of proceduralism (see H urrell 2003). As ‘strangeness’ constitutes a main line of conflictive political debate in contemporary societies, one should expect this to be a major concern, too, in the recent debate about an agonist alternative to more conventional theorizing, the approach that is centrally discussed in the other contributions to this volume. In our

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view, though, thirdly, this is not properly the case. T rue, some highly innovative suggestions have emerged from agonism broadly understood. Thus, some works emphasize the positive and sometimes founding role of the stranger for the polity (Derrida and Dufourmantelle 2000; Honig 2001) and others the modern polity’s lack of initial homogeneity and hence, its richness (Tully 1995). However, the basic we/them distinction that is characteristic for most agonistic theory is unfortunately mostly used only to address the political community’s internal composition, i.e., the relations between those who participate in deliberation and decision-making and who happen to have contradictory stances on particular, unspecified issues. T he main challenges faced by contemporary societies and polities, as suggested at the outset, have to do with those who do not participate in decision-making, in other words, those who cannot, for a range of reasons, be part of the ‘we’ or of the ‘them’ between whom there is agōn. T he socio-spatial ambit of the question of the stranger, as we call it in this chapter, is most frequently an implicit assumption, an assumption which is based either on Carl Schmitt’s pivotal dichotomy between friend and enemy, as is the case of Chantal Mouffe’s writings, or on Hannah Arendt’s references to political action within the Greek polis: for both, exclusion is inevitable; and in both cases, the privileged perspective on life in common is the political rather than the social one. This chapter argues that by making explicit and by specifying the socio-spatial ambit of the question of the stranger, on the one hand, and by taking a principle of inclusion as its starting point, on the other hand, agonistic theory can gain in contemporary relevance. Towards this end, we shall use some of the tools that earlier work towards a theory of synagonism has generated (Karagiannis and W agner 2005; for a critique of recent agonism from this angle, Karagiannis and W agner 2008). T his approach, briefly, employs the term ‘synagonism’ to focus on the interpretation and production of the common good in and through conflict. We proposed this concept, borrowing from Greek as the classical language of political philosophy, to underline the inevitability and the fruitfulness of conflict in a free society. The term ‘synagonism’ can best be understood in its contrast with the more familiar ‘antagonism’, which is composed of the prefix anti (against) and agōn (struggle) and is used, since Marx at least, to refer to struggle that can only end with the decisive victory of one party over the other, or even the annihilation of the loser. In contrast, synagonism – replacing anti with syn (together, co-) – literally means costruggle: the struggle of one against another in view of excellence winning. T hus, synagonism can be understood as the respectful struggle of one against another, bound by rules larger than the struggle, in view of excellence winning for the benefit of the city. O ur reasoning will proceed as follows. First, as mentioned above, we shall briefly discuss the recent ways of addressing the stranger as a concern for socio-political life from within the established modes of political theorizing: communitarianism, liberalism and proceduralism. T rying to go beyond the shortcomings of these approaches, second, we shall look at the position of the stranger in the historical agōn, that is, the agōn characterizing A ncient A thens,

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by using an understanding of the social and the political developed in our own perspective: this will reveal both the exclusionary nature of historical agōn and the nuances that made an exclusionary politics socially sustainable. Finally, drawing conclusions from our excursions into contemporary theory and historical agōn, we will turn more closely to the ways in which the synagonistic perspective can improve the understanding of the position of the stranger in agonistic politics. Established Views of the Stranger: Patriotism, Cosmopolitanism, International Law No socio-political space is ever truly autarkic and no socio-political space is ever truly autochthonous. Both the ideal of autarky (hoping to sustain a population exclusively by means of its own production) and the myth of autochthony (believing in pure, indigenous origins of the inhabitants of a space, and of the members of the polis) have long been the substance matter of exclusionary politics vis-à-vis the outside. But as is evident even for the contemporaries of famous Greeks who advocated such politics, a part of the outside is always inevitably – and thankfully – inside the polis. T he relation between the inside and the outside of the socio-political space has often been considered from the perspective of the territory strictly speaking, which involves the question of its alteration through conquest (war), sale, heritage, secession (Buchannan and Moore 2003). C ontrary to the understanding of international relations as having moved into the realm of soft power and pure deliberation, we believe that territory and territorial claims remain as significant as ever: ongoing struggles for land redistribution in Latin A merica and A frica, for instance, witness this. However, we do not focus on territory strictly speaking because this issue is most usually looked through an exclusively political (i.e., asocial) lens. Instead, we emphasize the relation between the inside and the outside in terms of the – social – relation between insiders and outsiders, those who are already members of the polis and who are the only ones to ever decide who belongs and who does not belong to the community and those who do not belong to the community and/or would like to enter the polis. In the following discussion, for reasons of brevity, we cannot do full justice to the subtleties, ambiguities and complexities of each theory or to the ways in which they can be combined; we draw a rough picture of their respective points that seem salient for our current purposes and we hope to thus shed on them an unusual light. T he respective degrees of possible philia or distance inside the polis and status of the stranger vary according to the relative weight of the outside of the polis in the conceptualization of the polis (i.e., how important this outside is for a theory of the polis). T his issue has traditionally been formulated in terms of a calculation: for Greek thought, the issue of the ideal size, the measure (or metron) of the polis is paramount. T hus, A ristotle saw the polis as the ideal human dwelling, being ‘the smallest potentially autarkic and the largest potentially

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“eudaimonic” social unit’ (Ober 1998, 296). Aristotle estimated Athens’ ideal population at 5000. N owadays, the European Union and the debate of widening (leading to enlargement) versus deepening is also an illustration of this concern with a ‘manageable size’ whilst, more generally in modern political thought, the division between direct or representative democracy also refers to the same issue. A dditionally, this issue has been formulated in terms of the intensity of emotions tying the citizens to each other or to the strangers. For patriotism, which we here take to be the clearest expression of communitarianism with regard to borders, the love for the patriot’s fatherland (patris) is a love for the particular origins, the particular land or country and its habits. C ommitment to this land or country is very intense; it is more intense than commitment to the outside of this country. In this ideal-typical version of patriotism, outsiders can only be relevant to the patriot’s love as friends of the country (allies) or enemies. It is important to stress that it is a country that is the object of love and, hence, that what matters is the disposition of strangers towards the country, not towards the patriot herself or her fellow countrywomen and men. A ll references to strangers, thus, ineluctably centre around the country itself. Indeed, the stranger is defined by patriotism through her position outside the country or the community. T he community has strictly determined borders and the borders’ function of demarcation for those who do not belong to the community is crucial. From the viewpoint of the inside, the rules to entry are very strict. From the viewpoint of the outside, approaching the community demands strong efforts because the outsider is always apprehended as belonging to another community – and this answers the question of the co-existence, from the patriotic viewpoint, of the outside collective and the outside singular. Thus, the outsider’s entry can either signify superposition of two communities or, more likely, that the stranger has divested herself from previous belonging (conversion). Finally, the stranger can also be the non-patriot within the community, a member that, in the extreme case, is a traitor. T he non-patriot within the community provides the – rare – internal resistance to communitarianism. ‘Cosmopolites de tous les pays, unissez-vous’ was the appeal by Jacques Derrida against the apartheid regime in South Africa. It was asking for something apparently paradoxical: that cosmopolitans (i.e. people considering themselves as inhabitants and members of the cosmo-polis) who nevertheless belonged to different countries, come together to fight against a regime in a particular country or nation. The double move, first of transcendence of one’s origins, second of intervention against a regime, is characteristic of the charm and problems of liberalism’s extreme form of dealing with the outside of the polis. Coherently for the ‘typical’ liberal account, what matters is the autonomous being that can freely act and move – in this case, the autonomous human being (but it could also be the autonomous state). T he call is addressed to the individuals who, in all countries and despite their countries, feel that they belong to the city of the world. O ne would think that the transcendence of this origin would be reflected in the second part of the move. But no: here, these individuals should not only unite themselves, and

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thus partly lose that in the name of which they are called (namely their individual capacity of transcending) but also do so in order to act against oppression in a specific country (the entity which has been transcended). Liberal cosmopolitanism is thus ambiguous in its aspiration to address individuals and, generally, in its relation to the outside. Indeed, for cosmopolitanism, the status of the stranger is paradoxical as it is defined by an inside. Cosmopolitanism’s ultimate aim is that there are no strangers at all, since the polis is the cosmos, that is, the world. C osmopolitans are members or citizens of the world. They have a stake in the world and, naturally, consider issues whose consequences are worldwide to be of particular concern (ecology, wars abroad etc.). In this theoretical context, there is no possible outside save that which is in disagreement with the cosmopolitan view, a meta-outside as it were. T his is the outside of particularisms (inside the world). T he stranger, for cosmopolitanism, is thus a stranger within, a stranger who refuses the process of abstraction that cosmopolitanism offers. T hat stranger can be a singular human being or a member of the group/ community. For cosmopolitanism, it does not matter whether the stranger is pre-constituted as a singular human being or as a member of a group because cosmopolitanism’s concern is to reconfigure her into the human being who has the same needs, rights and obligations as everybody in the world. T he main attachment here is thus to a different unit of measurement of possible philia: the individual. (W e record, though, that, on the international level, liberalism can be understood as interested in states, and thus opposable (to an extent) to cosmopolitan attachment; see Appiah 1996). The object of the emotion changes accordingly (‘care’ instead of ‘love’) and so does its significance, with consequences far from straightforward. For what cosmopolitanism purports to do is abolish the difference between the inside and the outside of the poleis, in the name of the world-city. By claiming to aim at eliminating this difference, the cosmopolitan claims to aim as much at caring for her actual fellow citizen of a particular nation (or a member of his family, or a member of his local community) as at caring for any other individual in the world. T he equalization – or symmetry – of the object of care and the stranger leads to the identification of the object of care and the stranger, which is the same as the provider of care. T he cosmopolitan individual cares for any other individual in the world – there is no absolute stranger for this care. C onsequently, from the viewpoint of an insider of liberal cosmopolitanism (which should, according to cosmopolitan ideas, be abolished) the entry to the polis is determined unrestrictedly by the principle of laisser-faire, laisser-passer. From the viewpoint of those who wish to enter, the access is easy but is necessarily accompanied by fewer guarantees of stability and security than in the case of communitarianism (for an attempt to bring together the stability and security that can be found in thick communities, on the one hand, and the moral goals of cosmopolitanism, on the other hand, see now Ypi 2008a and b). Finally, international law can be seen as the translation, for the present purposes, of the concern of proceduralism with the outside of the polis. A lthough

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the present international system bears marks of several historico-intellectual influences, it is perhaps proceduralism that is the clearest one. The Bretton W oods institutions that were installed after the S econd W orld W ar and the UNO (a revised League of N ations) are witnesses of the belief in the regulation and regularization of international relations and conflicts, with an ultimate view to liberal-democratic peace. D ebates around international justice, the results of, and the precedents set by, some international tribunals, such as the one for R wanda or for former Yugoslavia, but also the refusal of powerful states, such as the US , to fall under these tribunals’ jurisdiction depict a picture of uncertainty regarding the effectiveness of international law, even though, in other areas, mostly commercial ones, international law is respected. T he premises of international law differ from those of the other two approaches, since its starting point is a plurality of very different international actors (poleis or states but also, in some understandings, individuals). T hough it clearly has normative underpinnings and follows an ideal of universalization, there are no emotions involved in the way the outside of the polis is handled. In this case, however, contrary to the extreme form of cosmopolitanism, the outside is the raison d’être of the procedures regulating its relations to the inside. A dditionally, in this case, and contrary to patriotism, the outside is relevant more on its own, as it were, autonomously, without a strong potentially conflictual or loving connotation. For proceduralism, both the emotions towards and the measure of the stranger are to be dealt with by rules and institutional frames: substantive questions are thus relegated to a later point. H owever, though from the inside this may seem a fair and unrestrictive way of regulating entry into the polis, from the viewpoint of the outside, the polis may be less approachable. Furthermore, under proceduralism, entry into the polis may not entail becoming a full member of the community. Patriotism, cosmopolitanism and international law deal with the question of the stranger in a purposeful and explicit manner, elaborated on the basis of the fundamental tenets of the ‘general’ political theories that stand in the background of these approaches. W e tried to organize our discussion of them in such a way that two features of this constellation become clear. First, the key issues to be addressed in the relation between the polis and the stranger are indeed generated in these approaches. Although each of these roughly sketched versions of communitarianism, liberalism and proceduralism has shortcomings or ambiguities, taken together they therefore provide a useful ground for starting to think about how agonistic politics must and can create its own way of dealing with the issue of the stranger, other than by admitting to her exclusion. S econd, however, the resolution of the issue in each of the cases seems unbalanced because of the particular assumptions of the background theories. More specifically, we can recognize a rather rigid a-priori conceptualization of the relation between the social and the political that characterizes all those theories of contemporary politics, even though each one of them deals with it in a particular way. Individualist liberalism, in the guise of cosmopolitanism, tends to operate with an ‘a-social’ concept of the human being or with a ‘thin’ concept of the social bond; proceduralism, in the guise of international law, separates the social from the

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political; and communitarianism, in the guise of patriotism, using a holist social ontology, tends to conflate the social with the political. As political theories, these approaches use a restricted conception of the social to underpin their view about if and how political order is possible. T he creation of this particular relation between the social and the political emerges only relatively recently in the history of political thought – throughout the so-called early modern period, which witnesses the gradual rise of individualist liberalism, to be consolidated after the intellectual-history watershed towards the end of the eighteenth century (for more detail, see W agner and Karagiannis forthcoming). T his observation provides an additional reason to turn our attention to the most significant period of historical agonism, the democratic period in A ncient G reece, for further exploration of political ways of dealing with strangers. T he example of A ncient A thens renders evident the imbrication of exclusion and inclusion of strangers within the polis and outside the polis, showing how historical agonism operated quite freely of the strict separation between the social and the political that characterizes those three theories of contemporary politics. Inclusion and Exclusion in Historical Agonism: Women, Slaves, Foreigners For a fuller account of historical agonism’s imbrication of exclusion and inclusion of strangers to emerge, the simple highlighting of the distinction we/them (or members/non-members) is not enough. T he reason is that such highlighting solely concentrates on the political aspect of citizenship. Instead, also looking at the social aspect of that which constitutes citizenship appears paramount. A s Kurt Raaflaub (2004, 50), a historian of Ancient Greece who explored the process that led freedom to be the characteristic feature of citizenship throughout the various legal reforms in Athens, points out: ‘Every positive definition of citizen status, no matter how modest, inevitably brought with it a corresponding negative definition of non-citizen status’ and those definitions often included social aspects. Looking at historical agonism through this socio-political prism reveals that the first border of the Greek polis lies within it, and it serves to exclude the biggest part of the population from agōn. In geographical-anthropological terms, Jean-Pierre Vernant (1996) has mapped this as the separation of the centre from the periphery, the centre being the collectivity, the public domain ‘inhabited’ by male citizens, and the ‘inside’ periphery being the oikoia, the private household inhabited by women and slaves with no citizenship rights. T hus, we arrive at a more nuanced differentiation of ‘strangeness’ status, which has also been underlined by Pierre Vidal-N acquet: The Greek city in its classical form was marked by a double exclusion: the exclusion of women, which made it a ‘men’s club’ and the exclusion of slaves, which made it a ‘citizens’club’ (One might almost say a threefold exclusion, since foreigners were also kept out; but the treatment of slaves is no doubt merely the extreme case of the

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In the following pages, the author forcefully demonstrates the fantasized threat that the coupling, in all senses, of slaves and women represented for Greek men. Women are oriented towards the inside, contrary to men who are oriented towards the outside: the agora, the shopping, the debates, the arts and athleticism. In a virginal state, women are thus the epitome of the lack of exchange, of the negation of commerce and communication. T he condition of slaves, the second big item of household property, is slightly different: though philosophically and politically unchallenged, and Aristotle’s ‘natural slave’ theory notwithstanding, slavery is actually socially contingent: slaves could be enfranchised or buy their own freedom. Persons who are devoid of the capacity to take part in the city’s decision-making and decision-taking processes are oriented towards being the natural masters’ natural slaves. However, as Josiah Ober (1998) points out, the actual attitude towards slaves in Athens may have been very different: according to Ps-Xenophon’s account, an Athenian could not smack a slave in public, lest he mistook a poor citizen for a slave. By contrast to slaves, for Aristotle, women did not lack the deliberative capacity but, for unspecified reasons, were not authoritative. In socio-economic terms, this ‘inside’ periphery of the city shows two key characteristics: a distinct religious commonality and the constitution of the production process. Indeed, first, slaves and women share in Dionysism a cult that goes against the civic order as it encourages loss of control and transgression (Vernant 1996, 121, n. 23, and 356–7). S econd, women and slaves share the banausic aspects of the polis’ life (Ober 1996, 298) and ponos, that is, pain and effort of work, which is outside human nature (Aristotle). They constitute the production process through involvement in manual work, which is considered as opposed to citizenship by A ristotle and by Plato. Participation in the production process is also what causes exclusion from agōn and citizenship of the metoikoi, the resident aliens who, being citizens in another polis, dwell in the ‘outside’ periphery of the polis, also in geographical terms. Here, too, the situation reflects interestingly contemporary situations. First, it was only after Cleisthenes’ laws, which delimited more strictly citizenship, that it became more difficult for such immigrants to acquire citizenship in Athens. Until then, it had been possible to purchase it. S econd, though metoikoi did not in principle enjoy civic rights, they lived freely and could earn well. T hird, with time passing, the ‘outside’ periphery of the polis grew, the metoikoi became richer, and simultaneously they became less concerned with being citizens: participation in the production process had become more important than participation in politics.

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The myths of autarky and autochthony are further flawed by the tiered relation A ncient A thens entertains with the poleis and the populations lying outside it. C losest to the polis are the other poleis belonging to the H ellenic world. T he differences between the poleis are big, the most notorious antithesis being that of Sparta and Athens: Pericles’ Oration is an illustration of how Athenians saw their own distinctiveness by contrast to other Greek poleis – and an important element of this distinctiveness was autochthony (see D etienne 2003). T hese differences are translated into power struggles; they lead to wars and to alliances. T hey also lead to internal imperialism, as one city, A thens, becomes hegemonic and enslaves the others. H owever, despite a – contested – power hierarchy, all poleis share the selfunderstanding of belonging to the same world, where the same language is spoken and where a sizable but not oversize urban conglomeration is socio-politically autonomous. But imperialism pushes poleis to also establish colonies outside the H ellenic peninsula. O utside the world constituted by poleis dwell the Barbarians, who are, as Aristotle notes, those who do not speak Greek, those with whom one cannot communicate in logos, quite close then to those who do not have a name (the slaves) because they belong, by nature, to something else than the human who is defined by her name. They are the absolute strangers who can never integrate into the Greek world. However, according to Aristotle, they – who are characterized by thymos – have to be distinguished from A sians, who are characterized by mere intelligence and consequently, i.e., lacking thymos, are naturally subservient to their hegemon (the Greeks have, of course, both thymos and intelligence). O ther accounts, such as those of Xenophon and Thucydides, do not make this distinction but nevertheless attempt an objective description of the ‘other’. Judging from plays like Medea, however, it is nevertheless very probable that common A thenian opinion did not share this effort of objectivity. In practice, the institution of hospitality makes visible the particularities of the Ancient Greek imbrication of exclusion and inclusion in the dealings with the stranger. D uring the stay in the polis, the guest is under the protection and the responsibility of her host. The highest hospitality does not even ask for the stranger’s name before offering food and shelter. Often, strangers are messengers (protected by H ermes, the god of commerce) and they appear as iketes, that is, supplicants, kneeling in front of the citizen: it is forbidden to harm an iketis, even though he may bring bad news or belong to the enemy camp. Philoxenia may seem the most restricted form of engagement with the polis’ others because it involves only a temporary visit but it is important because it displays the polis’ basic attitude. Its significance is shown by the fact that the protector of hospitality was Zeus (Xenios Dias). It is thus assumed that the benefit of the city, though not increased through the guest herself, is served by the openness and hospitality of its inhabitants who compete over who will host the visitor. T he breach of philoxenia was an offence, as was the disrespect of the foreigner towards the city’s gods, laws and manners.

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A t the other end of philoxenia is the exit from the polis and ostracism. O stracism, that is, long-term expulsion, is one of the hardest punishments in A thens, along with death and life imprisonment. It is usually justified by accusations of betrayal of, or threat to, the polis and is, in fact, often the expression of a majority or regime change or, simply, the occasion to turn a prominent figure into a scapegoat. Athenian political history abounds with condemnations to ostracism, some coming too late (like Alcibiades’ ostracism) and others coming too early (like Themistocles’) or just wrongly (like Socrates’ ostracism which remained a threat since he chose death). D espite the frequent arbitrariness of ostracism decisions and although it may today seem a hard punishment, some recent immigration and asylum policies are reminiscent of it, since they refer to a threat to liberal democracy that could emerge from some foreigners. A ncient ostracism, in contrast, did not address the outsider coming in, but leading citizens whose political actions might endanger the city – such as unwanted warfare, demagogy and hubris. Our brief review of historical agonism meant to show the specific constellation of inclusionary and exclusionary aspects of a social and political life based on a restricted understanding of citizenship. It revealed both that the stranger to the polis is variously located on a broad spectrum starting from the inside of the polis and reaching to its remotest outside, and that exclusion is in principle possible or possible as a principle only because certain nuances make it socially sustainable. Far from justifying in any way the historical-agonist practices, this review suggested the need for differentiations in a polity’s relation to the stranger that neither the conventional political theories nor current agonism address. In a final step, we shall now try to explore briefly how an alternative synagonistic understanding of the polity can arrive at introducing some of those necessary differentiations, and we shall do so by referring back to our discussions of the conventional theories and showing how synagonism both draws on and differs from them. The Speci.ed Unconditionality of Synagonistic Philoxenia: Time and Commitment The synagonistic polis – the general assumptions of which were briefly spelled out above – rejects both the postulate of autochthony and that of autarky and deals with its stranger in a manner that, contrary to agonism, starts out from a principle of inclusion – philoxenia – which brings innovation and creativity into the polis, and aims at the pursuit of the objective of excellence of the city. T o start out from this principle has a number of consequences. First, synagonism views philoxenia, which results in relatively unhindered, though coded, coming and going of foreigners or laisser-passer, as a principle that enhances the benefit of the city directly – through what the foreigners give – and indirectly – through what the citizens have to offer and learn. T he liberal principle here is the basis of what we see as the contemporary transposition of philoxenia. A ccording to this principle, a foreigner can come and go as she pleases in and out

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of the polis: she is welcomed, offered food and shelter, her visit will be facilitated as much as possible and her story will be heard. T he privileged measure of liberalism/cosmopolitanism is the one, singular stranger, the individual that comes from the outside to the inside of the polis, and, possibly, goes back outside. In the light of the institutional difficulties that any cosmopolitanism is bound to face (first of all: the fact that there is an outside), this principle can be accommodated by reverting to a state liberalism that treats strangers as guests. A breach of philoxenia on the part of the host would be to not do one of these things that allow the free come-and-go or, in a richer version, that facilitate the stay of the guest. On the part of the guest, it would be to knowingly offend the city’s ways or to show disrespect towards its rules. Second, however, from a cosmopolitan point of view, the principle does not seem to be cast in stone: for, if entry and exit are completely free, there is no space for a true breach of philoxenia – and, ultimately, for the status of guest which is coded (there is exchange, to and fro etc.). In an extreme version of cosmopolitanism, nobody can be somebody else’s guest as, ideally, there are no valid spaces smaller than the world. Being a guest and receiving a guest are, therefore, more complicated statuses than liberalism/cosmopolitanism can allow for: they point both to proceduralism by means of the rules that define the guest, her obligations as well as those of her host, and to communitarianism/patriotism since a guest is necessarily somebody who is amicably inclined towards the city and a person who unavoidably belongs to a different city. T hird, apart from the complicated status of the guest with regard to the idealtypical forms of the theories we have looked at, there is a broader problématique of the guest that has been poetically and even philosophically very fruitful. O ne of the most interesting ideas in D errida and D ufourmantelle (2000, 77–83) is that the laws of conditional hospitality (in synagonism, there are two main conditions as we see below) can always only be thought on the basis of the law of unconditional hospitality. But this conceptualization does not allow for a stabilization of the relation with the outside of the polis. T his problématique concerns the suspended situation of the guest: an admission within the city in the understanding that the person who is admitted remains a foreigner. In this double movement that results in a suspension, it is the temporariness of the guest that is crucial: the foreigner should not and cannot be disrespectful to the city’s rules but she also does not need to be committed to them. By contrast and consequently, time and commitment are the two elements completing our view of the borders of the synagonistic polis. This means, first of all and perhaps most importantly, that the synagonistic polis constructs itself as an inside that has an outside: the polis has borders. It also means that these borders are permeable, that there is freedom of movement. But if the suspended, temporary state of the guest is valued for all the guest brings and takes, it is valued only temporarily. For, exactly for the same reasons that the ‘strangers inside’ (women, slaves, metoikoi) whom we have encountered in the Greek polis are not to be found in the synagonistic polis, such a suspended state of the guest cannot persist

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in the long run. In other words, no status equivalent to that of the Gastarbeiter in Germany – right to stay and work, but no right to participation – should persist (see also Walzer 1983). The reasons are, first, that exclusionary politics are not favoured by synagonism since it is precisely differences working together and against each other that are aimed at producing excellence for the benefit of the city and, second, that the cultural and economic (social) processes are not out of the ambit of the political. In other words, the processes of production and deliberation are not to be separated in a way that allows for workers to be devoid of citizenship rights. T hus, after a while, the guest either acquires full rights and full obligations (from an economic, or cultural ‘guest’, she becomes a socio-political citizen), or she does not and is again part of the outside of the polis. At this stage, two crucial questions are raised: (a) how long is the ‘while’ that is needed for the guest to becomes a citizen and (b) what are the other conditions for the transformation of the guest into the citizen to take place? Both questions require complex answers, and we can only give indicative responses here. T he answer to the first question is a function of the answer to the second question, because depending on the conditions posed by the city, the period of the transformation of the guest to the citizen will be shorter or longer. H ence, in such a general way we can only assert that in light of the internal definition of synagonism (i.e., the struggle for excellence in view of the benefit of the city), in light of the principle of philoxenia, and assuming that the guest wishes to become a permanent member of the polis, the only condition for the transformation of the guest into the citizen is the guest’s commitment to the spirit of synagonism. Positively, this means that the guest’s difference persists (she can, therefore, become a part or an adversary in a struggle) and that the guest appreciates and values the polis for its goodness – or excellence – which includes philoxenia. N egatively, this entails that unless the guest accepts to follow as an aim the benefit of the polis and shows that she is committed to that aim, she will not become a citizen. T he positive version of the argument assumes, in this construction, that the guest always – always at least originally, when she knocks the door of her host – finds the polis a worthy one and is therefore prone to commit herself to the furthering of this ‘goodness’. T his includes a broad acceptance of synagonist rules such as the interdiction of monopolies, oligopolies and exploitative capitalism (unregulated competition). Forced exit from the polis or ostracism, in turn, could not be enacted arbitrarily or because of majority changes, in contrast to ancient practices, but only and exclusively if the guest-become-citizen shows dangerous disrespect to the rules of the polis and to the furthering of its good; and this proviso regards all citizens indiscriminately. Furthermore, and this in line with A thenian practices, it does not aim at the socio-economic or cultural status of the person concerned, which remain unaffected, but at the exercise of political influence that has endangered the viability of democracy. To take an example from contemporary Italy: unlike recent governments, we would not have R oma immigrants but Berlusconi in mind when thinking of synagonistic ostracism. Thus, far from returning to create a new kind of stateless persons, the concern for whom we fully share with Hannah

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Arendt, this measure aims at fighting the fragility of democracy that keeps being underestimated by contemporary political theorists – be they agonists or followers of the conventional approaches (Karagiannis 2007). R egarding the world outside the city, synagonism aims at promoting global distributive justice. T his, on the one hand, transcends a minute attention to procedures and thus, procedural justice and, on the other hand, takes up a theme with which cosmopolitanism deals ambiguously: intervention. T he principle of non-exclusion in the inside of the city, by virtue of which the ‘others’ of the polis inside the polis are not to be discriminated against and the principle according to which social (cultural and economic) processes are tied to the political, which can be translated into the rejection of autarky for the outside of the polis, lead naturally to the principle of redistributive justice outside the city. A s long as the polis needs others and other needs the polis, ‘the excellence of the city’ can only be achieved by cooperation with others. T his co-operation is a sustainable one only if power and riches are justly distributed. For the opposite case, if one needed another illustration than the one currently unfolding before our eyes, the Ancient Greek example would repeatedly show us that both imperialism and alliances turned into hegemonies inevitably bring about the destruction of the hegemon. O ur conclusion can now be brief. S ynagonistic reasoning provides a view of the stranger as neither entirely outside of a self-sufficient polity nor necessarily opposed to the polity because of her strangeness. W hen a stranger enters into relation with a polity, the latter’s attitude towards her will be based on philoxenia, while initially maintaining the difference between citizens and strangers. From the viewpoint of those already in the polis, access to their space is thus relatively easy and unrestricted. From the viewpoint of the outsider, this polis is an approachable one. T he stranger as a singular human being is a xenos, bearer of riches. For the guest to become a member of the synagonistic polis, an investment of time and the expression of commitment to synagonistic aims are necessary. A s such, polis subscribes to a demanding notion of citizenship, not merely a formal, procedural one. Just like any other member of the polis, a (former) stranger may be forced to leave in cases of corruption or collusion against the excellence of the city. We add one final note. Synagonistic reasoning is, in our view of it, not a purely normative theory that describes an ideal polity without regard for its reachability or sustainability. It is not a purely analytical-empirical or critical theory either that analyses existing polities without regard for the norms that are inscribed in them. R ather, we maintain the following for synagonism: current so-called liberal democracies contain elements of synagonistic orientations, even though only at their margins. A historical analysis of agonistic practices suggests that synagonism could be made more central for political life, even though its forms would need to be adapted to the liberal and inclusive commitments of modern polities. A greater centrality of synagonism would make modern polities both more sustainable, as a general commitment to excellence would diminish the fragility of democracy, and more normatively acceptable, as synagonism provides some substantive connection

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between personal autonomy and collective self-determination. A ll of this needs to be elaborated in more detail, but this brief analysis of political strangeness may at least have demonstrated the fruitfulness of the approach. Bibliography Appiah, K.A. (1996), ‘Cosmopolitan Patriots’ in M. Nussbaum (ed.) For Love of Country (Boston, MA : Beacon). Benhabib, S . (2004), Citizens, Residents, Aliens (C ambridge: C ambridge University Press). Buchanan, A . and M. Moore (eds) (2003), States, Nations and Borders: The Ethics of Making Boundaries (C ambridge: C ambridge University Press). C avallar, G . (2002), The Rights of Strangers (A ldershot: A shgate). Derrida, J. and A. Dufourmantelle (2000), Of Hospitality (S tanford, CA : S tanford University Press). D etienne, M. (2003), Comment être autochtone (Paris: S euil). H onig, B. (2001), Democracy and the Foreigner (Princeton, NJ: Princeton University Press). Hurrell, A. (2003), ‘International Law, the Making and Unmaking of Boundaries’ in A . Buchanan and M. Moore (eds) States, Nations and Borders: The Ethics of Making Boundaries (C ambridge: C ambridge University Press). Karagiannis, N. (2007), ‘La Democracia como regimen tràgico’, Trasversales 8:2 (autumn). Karagiannis; N. and P. Wagner (2005), ‘Towards a Theory of Synagonism’, Journal of Political Philosophy 13:3, 235–62. Karagiannis, N. and P. Wagner (2008), ‘Varieties of Agonism: Conflict, Consensus and the Need for Synagonism’, Journal of Social Philosophy, 39:3, 323–39. Ober, J. (1998), Political Dissent in Democratic Athens: Intellectual Critics of Democratic Rule (Princeton, NJ: Princeton University Press). Raaflaub, K. (2004), The Discovery of Freedom in Ancient Greece (C hicago, IL: University of C hicago Press). Rundell, J. (2004), ‘Strangers, Citizens and Outsiders: Otherness, Multiculturalism and the Cosmopolitan Imaginary in Mobile Societies’, Thesis Eleven, 78:1, 85–101. Tully, J. (1995), Strange Multiplicity: Constitutionalism in the Age of Diversity (C ambridge University Press). Vernant, J. (1996), Mythe et pensee chez les Grecs. Etudes de psychologie historique (Paris: La D ecouverte). Vidal-N aquet, P. (1986), The Black Hunter. Forms of Thought and Forms of Society in the Greek World (Baltimore, MD: The Johns Hopkins University Press). Wagner, P. and N. Karagiannis (forthcoming), ‘The Social and the Political’ in P. W agner (ed.) Crisis of the Global Social Science: A Report on Social Knowledge.

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W alzer, M. (1983), Spheres of Justice (O xford: R obertson). Ypi, L.L. (2008a), ‘Statist Cosmopolitanism’, Journal of Political Philosophy, 16:1, 48–71. Ypi, L.L. (2008b), Statist Cosmopolitanism, PhD thesis (Florence: European University Institute).

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C hapter 10

Passionate S ubjectivity, C ontestation and Acknowledgement: Rereading A ustin and C avell Aletta J. Norval

O n Monday 12 May 2008 the US S upreme C ourt upheld a lower court ruling allowing a lawsuit seeking damages from companies that did business in South A frica during the apartheid era to proceed toward a trial. T he C ourt ruled that three class actions could use the A merican legal system to sue approximately fifty international corporations who they believe ‘knowingly aided and abetted the South African military and security forces’. The case is the latest test of an eighteenth-century law, the Aliens Tort Claims Act, which ‘allows foreigners to use the US legal system to right international law violations’ wherever they may have been committed (Jagger 2008). One of the plaintiffs in this case is a set of S outh A frican human rights organizations called the Khulumani S upport G roup. Khulumani, an isiZulu word, means ‘speaking out’. The group was formed in 1995 by survivors and families of victims of the political conflict of South Africa’s apartheid past. R epresenting approximately 54,000 individuals, some 74 per cent of whom are unemployed, it was set up in response to the work done by the S outh A frican T ruth and R econciliation C ommission (TRC 1999). Its proclaimed strategic aims include lobbying for redress on outstanding TRC issues, such as the prosecution of those who failed to apply for amnesty, in the context of the S outh African government’s: failure to make good on its reparation promises or to deal comprehensively with the lifelong consequences to victims and survivors of the gross human rights abuses that resulted from their stand against the ‘machinery’ of apartheid on an almost daily basis. (Jobson and Madlingozi 2007)

A plethora of issues are raised by this case. They range from specific points of law to a much wider range of issues, including questions of reparation, responsibility and responsiveness, as well as the processes through which claims are constituted in and through political action. It is notable, for instance, that the invocation of an eighteenth-century law – the A liens T ort C laims A ct – has allowed this case to   http://www.khulumani.net/about/3-about-us/1-Background.html, viewed 2 June 2008.

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be brought. This law, which originally aimed to help foreigners seek redress for issues such as piracy, is now increasingly being used to sue corporations for their alleged involvement in human rights abuses. It is, moreover, noteworthy that the US S upreme C ourt had to uphold a lower court ruling on procedural grounds, since four judges were disqualified because of their investments in some of the companies involved, or as a result of family ties. O f course, the legal and political consequences of this ruling are also far from clear. T he US S olicitor G eneral, Paul D. Clement, commented that the ruling ‘represents a dramatic expansion of U.S. law’. Other commentators suggested that the lawsuit could ‘harm the policy of reconciliation in South Africa’ and that it could ‘make U.S. companies reluctant to do business’ in South Africa (Barnes 2008). Most significantly, the ruling opens the way to hold corporations accountable ‘for aiding and abetting gross human rights violations’. In this respect it is arguably ‘the most critical test case globally for creating global standards for ethical corporate behaviour and for promoting a culture of corporate responsibility’ (Jobson and Abrahams 2008). Hence, the lawsuit could potentially alter the relationship between states, individuals and trans-national corporations with respect to human rights. W hile important, these matters will not be the primary focus of my attention. Rather, I will explore some of the aspects of this case that may help us to think more clearly about what may otherwise appear as very abstract questions concerning democratic practices of political contestation. In particular, this case throws into relief a number of key features of practices of contestation that are of interest in the contemporary debate between deliberative and agonistic accounts of democracy. T hese include, amongst others, the interrelation between convention and innovation, contestation and deliberation, and reason and passion in democratic politics. I propose to explore these issues through a reading of speech act theory, which foregrounds the ways in which conventions shape what we can say when. A t the same time, it suggests that conventions, far from merely constraining, are in fact malleable and open to challenge. T heoretically, as well as politically, this raises the question of the relation between the conventional and the non-conventional, the terrain of the given and that from which we are (free) to improvise. T he Khulumani case allows me to explore these issues in some detail. Understood as a passionate utterance, it seeks to bring into being a space where a novel claim may be heard. Even though this claim is raised in what one would usually regard as a conventional (legal) context it nevertheless exceeds that context insofar as its invocation rests upon an iteration of an eighteenth-century law. H ence it alters the terrain in the very act of repetition. Finally, I will also argue that this claim is constitutive of the identity of the claimants, and calls for a response by the addressees of the claim. In so doing, it moves us from a politics of the recognition of already constituted identities to a politics of acknowledgment, where the articulation of claims and the spaces in which such claims may be heard, are foregrounded.

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Law and Desire: Speaking out Differently A performative utterance is an offer of participation in the order of the law. A nd perhaps we can say: A passionate utterance is an invitation to improvisation in the disorders of desire. (C avell 2005, 185) Both seem registers of political life. (C avell 2006, 273)

T he bifurcation between those who view politics as an activity of participation in ‘the order of the law’ and those who regard it as participating in ‘the disorders of desire’ runs deep in contemporary theoretical debates. On the deliberative side of the divide, politics is conceived largely if not wholly through the prism of lawmaking and the standards and ideals of participation correspond to a picture of rational argumentation, persuasion through the force of the better argument and a detachment from specific forms of subjective identification. On the other hand, for theorists of agonistic persuasion politics exceeds institutional forms of political activity and consists rather, of activities of contestation if not disruption, passionate identification and the creation of alternative political subjectivities and imaginaries. O n their own, each of these pictures of democratic activities contain persuasive features, yet it is my sense that the divergences are often overdrawn, obscuring the extent to which political practices draw upon, contain and overflow elements of each, subverting the sometimes too sharp dichotomies set up in theoretical debate. N evertheless, it is useful to explore some of these features in more depth, since in so doing we may become aware of shades of difference, overlap and distinction not otherwise visible, which in turn may enrich the way in which we think about and analyse democratic political practices. In order to do so I turn now to a discussion of speech act theory, starting with Austin’s path-breaking account of performative utterances, supplemented with Cavell’s account of passionate utterances. The former provides us with an account of the importance of convention, whilst the latter provides a systematic account of the features of the non-conventional. My reading of this material suggests ways in which it could be extended to think about the character of democratic practices of contestation. H owever, as I will argue, this will depend upon questioning the too sharp distinction between the conventional and the non-conventional. A ustin starts (1986, 6–7) his famous lectures, contained in How To Do Things With Words, with a discussion of performative utterances, indicating ‘that the issuing of the utterance is the performing of an action – it is not normally thought of as just saying something’. Hence, what is at stake here is the fact that saying something, under certain circumstances, is doing something. To speak (out) – khuluma – is to do something. But more needs to be said about precisely what is done, under what circumstances, and with what consequences. It is here that Austin’s distinction between performatives and constatives is relevant. One can normally say of constatives that they are either true/false. By contrast, the success of performatives is characterised in terms of felicity/infelicity. T he account of

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performatives is supplemented in Austin’s later lectures with that of a discussion of utterances with illocutionary force and with perlocutionary effect. Before moving on to the pertinence of this distinction for political analysis, it is important to remind ourselves of Austin’s specification of the conditions that must obtain for the smooth or happy functioning of a performative. A ustin sets out the six conditions in the following manner: (A .I) T here must exist an accepted conventional procedure having a certain conventional effect, that procedure to include the uttering of certain words by certain persons in certain circumstances, and further, (A .2)  the particular persons and circumstances in a given case must be appropriate for the invocation of the particular procedure invoked. (B.I) T he procedure must be executed by all participants correctly and (B.2)  completely. (Γ.I)  Where, as often, the procedure is designed for use by persons having certain thoughts or feelings, or for the inauguration of certain consequential conduct on the part of any participant, then a person participating in and so invoking the procedure must in fact have those thoughts or feelings, and the participants must intend so to conduct themselves, and further (Γ.2)  must actually so conduct themselves subsequently. (Austin 1986, 14–15)

If, as he puts it, we sin against any of these six conditions, the performative will be unhappy in one way or another. In short, if any of the four rules specified under A and B are offended against, ‘then the act in question, e.g. marrying, is not successfully performed at all, does not come off, is not achieved’. Whereas in the case of the last two rules, ‘the act is achieved, although to achieve it in such circumstances, as when we are, say, insincere, is an abuse of the procedure.’ Hence in the latter two cases, our act is ‘hollow’ and ‘not consummated’ rather than ‘void’ or ‘without effect’ (Austin 1986, 16). G iven the importance of conventions in politics it is necessary to recount the ways in which Austin suggests performatives may misfire when conventions are not properly invoked, are absent or not accepted. Let us first look at the case where someone issues a performative utterance and it misfires ‘because the procedure invoked is not accepted’ (Austin 1986, 27). Some commentators have suggested that the possibility of the non-acceptance of a procedure provides grounds to question the usefulness of Austin’s account for political analysis. But matters are not that straightforward. Austin states quite emphatically that ‘it must remain in principle open for anyone to reject any procedure’, though of course anyone who does so ‘is liable to sanctions’ (Austin 1986, 29). He also discusses a number of further cases that are of interest. Consider for instance the case where a procedure ‘no longer exists’ in the sense that though once generally accepted it is ‘no longer generally accepted, or even accepted by anybody’. In politics there are often procedures that fall into disuse. O ne may also consider the situation where someone is initiating a practice, like in football, where the man who first picked up the ball and ran with

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it, got away with it (Austin 1986, 30). ‘Getting away with it’ here is essential and probably forms part of any account of the institution of a new procedure. A ustin (1986: 31) finally also mentions the more common case ‘where it is uncertain how far a procedure extends – which cases it covers or which varieties it could be made to cover’ arguing that: It is inherent in the nature of any procedure that the limits of its applicability, and therewith, of course, the ‘precise’ definition of the procedure, will remain vague. There will always occur difficult or marginal cases where nothing in the previous history of a conventional procedure will decide conclusively whether such a procedure is or is not correctly applied to such a case. C an I baptise a dog, if it is admittedly rational? (A ustin 1986, 31)

Even though A ustin notes that in these cases we tend to be bound by precedent, these remarks suggest that any procedure would be subject in principle to interpretation if not contestation. In the case of conventions, as in all other human affairs, we need to caution against oversimplification. The emphasis on conventions in Austin also extends to the one who speaks. In arguing that ‘the particular persons and circumstances in a given case must be appropriate for the invocation of the particular procedure invoked’ Austin suggests that conventions qualify a subject to speak, rather than the specific characteristics of the individual occupying a speaking position. (Contrary to readers of Austin who seek to resist such insights (cf. Skinner 1988, 272), I would suggest that his account here resonates with what Foucault understood by ‘positions of enunciation’.) Judith Butler proposes in this respect that we understand Austin’s conventional subject in relation to the ritual dimension of convention, which: implies that the moment of utterance is informed by the prior and indeed, future moments that are occluded by the moment itself. Who speaks when convention speaks? … In some sense, it is an inherited set of voices, an echo of others who speaks as the “I”. (Butler 1997, 25)

This reading captures the important role of the conventions we invoke when speaking. However, this emphasis should not occur at the expense of an acknowledgement of their fragility and contestability. Cavell (1995, 65) remarks in this respect that we need to ask ‘what it betokens about utterance or about action that they can suffer, say, imitation (to take that title for the iterative). It betokens, roughly, that human utterances are essentially vulnerable to insincerity’. T his emphasis on the vulnerability of the ordinary and the responsibilities that come with it, stands at the core of Austin’s thinking and must be contrasted to the metaphysical attempt of philosophy to silence the human voice. Perhaps one way to escape from the limitations of thinking too abstractly in terms of a ‘theory of the subject’ is by focusing on what one is doing in making a claim. Hence, it is

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to the utterances and the effects of utterances that we need to turn, including the constitution of subjectivity in those utterances. Different Senses of Doing in Saying If we are to understand the full force of the role conventions play in Austin’s account, we need to look at the distinction he subsequently introduces between the illocutionary force and perlocutionary effects of utterances. A s A ustin (1986, 94) suggests, it is expedient to go back to fundamentals ‘to consider from the ground up how many senses there are in which to say something is to do something, or in saying something we do something, and even by saying something we do something.’ Hence, we have the introduction of a threefold distinction. The act of saying something (locution) is distinguished from an act accomplished in saying something (illocution), which in turn is distinguished from an act performed by saying something (perlocution). Austin’s shooting example clarifies these distinctions as follows: A ct (A ) or Locution He said to me ‘Shoot her!’ meaning by ‘shoot’ shoot and referring by ‘her’ to her. A ct (B) or Illocution H e urged (or advised, ordered, &c.) me to shoot her. A ct (C .b) or Perlocution H e got me to (or made et, &c.) shoot her. (A ustin 1986: 101–102)

A ustin himself clearly wishes to focus primarily on illocutionary acts. H e also notes that the expression ‘use of a sentence or language’ tends to blur the distinction between illocution and perlocution, between for instance the language of ‘warning’ and that of ‘persuading’. He puts it thus: ‘the former may, for rough contrast, be said to be conventional … but the latter could not’ (Austin 1986, 103). He emphasizes this point repeatedly. ‘We must notice that the illocutionary act is a conventional act: an act done as conforming to a convention’ (Austin 1986, 105). And again, ‘we perform illocutionary acts such as informing, ordering, warning, undertaking, &c. i.e. utterances which have a certain (conventional) force’ (Austin 1986, 109). Indeed, as I have noted above, A ustin goes so far as to suggest that the ‘uptake’ of illocutionary acts requires the presence of such strong linguistic conventions that it is the conventions rather than the intentions of speakers that are definitive of the illocutionary act, that illocutionary examples are distinguished by the fact that ‘the act is constituted not by the intention or by fact, essentially, but by convention (which is of course a fact)’ (Austin 1986, 128). The perlocutionary effect of utterances, by contrast, is a matter of non-conventional consequences, producing effects upon the feelings, thoughts or actions of the audience or of the speaker, or of other persons (Austin 1986, 101, 122). It is this class of utterances that Cavell calls ‘passionate utterances’, and he notes with a sense of surprise that

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A ustin avoids the issue of passion, closing it off as soon as his delimitation of perlocutionary utterances has opened it up. C avell (2005, 177–8) further interrogates this exclusion of perlocutionary acts – those acts that are not illocutionary in force and not meant to inform an addressee of something, and are meant to have ‘consequential effects on the feelings, thoughts, and actions of others’ – and I will turn to this shortly. Before doing so, it is noteworthy to be aware of the fact that this exclusion of the perlocutionary in A ustin is also commonly echoed in the tradition of political theorizing that draws on A ustin. It is quite often suggested that the perlocutionary domain is not in need of consideration since, it is claimed, it is not amenable to systematic analysis. For instance, Skinner’s elaboration of methodological precepts for the study of ‘illocutionary intentions’ – understanding what an actor was doing in issuing a particular utterance – explicitly excludes the perlocutionary from analysis on the grounds that ‘perlocutionary intentions’ are not amenable to systematic study since they have to do with ‘structures of effect’ (Skinner 1988, 74–5). This gesture, in a single fell, excludes much of what is important and indeed crucial in political analysis. O thers have excluded the perlocutionary for different reasons, most often for its association with emotion and the whole domain of the ‘non-conventional’. (This, once more, is perfectly compatible with Austin’s own account.) This tendency is at its most pronounced in the deliberative tradition associated with H abermas and his followers. H owever, even here some attempts have been made to problematize the exclusion of perlocution from systematic analysis. The work of James Bohman on the importance of persuasion in the discourse of social critics is a case in point. T he task of convincing others, he argues, is achieved by a class of statements that cut across the strategic/communicative and perlocutionary/illocutionary distinctions as deployed by Habermas. In what Bohman (1988, 199) calls ‘emancipatory speech’ indirect means such as irony, metaphor and artistic representation are used to perform perlocutionary acts – especially the task of ‘convincing’ – ‘in the service of communicative aims, that is, of opening up blocked possibilities of mutual understanding or self-understanding’. Bohman proposes here that we give attention to the possibility of classifying perlocutions. W hilst suggestive, he does not actually pursue this course of action further. In short, the preconditions for a systematic revaluation of the perlocutionary domain are that it does not remain subservient to illocutionary (communicative) uses of language and that its specificity is teased out in much greater detail. Perlocution Reclaimed: The Turn to Passionate Utterance T he setting or staging of my perlocutionary invocation, or provocation, or confrontation, backed by no conventional procedure, is grounded in my being moved to speak, hence to speak in, and out of, passion, whose capacities for lucidity and opacity leave the genuineness of motive always vulnerable to criticism. (C avell 2005, 181)

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C ontra A ustin, C avell (2005, 176) suggests that it is indeed possible to ‘introduce some articulation into the region of the perlocutionary act, with a view toward it playing a larger role in determining our sense of the effects of speech in and as action than it does in Austin’s concentration on the region of the illocutionary act.’ In so doing, he proposes to extend Austin’s theory of performative utterances to take account of what he calls ‘passionate’ utterances. He does so by proposing that there are conditions for passionate utterances that correspond to the conditions A ustin lists for the felicity of performative utterances. Cavell’s analogous conditions are: Perlocutionary C ondition 1: There is no accepted conventional procedure and effect. The speaker is on his or her own to create the desired effect. Perlocutionary C ondition 2a: (In the absence of an accepted conventional procedure, there are no antecedently specified persons. Appropriateness is to be decided in each case; it is at issue in each. I am not invoking a procedure but inviting an exchange. Hence:) I must declare myself (explicitly or implicitly) to have standing with you (be appropriate) in the given case. Perlocutionary C ondition 2b: I therewith single you out (as appropriate) in the given case. Illocutionary C onditions 3 and 4 have no analogues for perlocutionary acts, there being no antecedent procedure in effect. Perlocutionary C ondition 5a: In speaking from my passion I must actually be suffering the passion (evincing, expressing, not to say displaying it – though this may go undeciphered, perhaps wilfully, by the other), in order rightfully to Perlocutionary C ondition 5b: D emand from you a response in kind, one you are in turn moved to offer, and moreover Perlocutionary C ondition 6: N ow. A dditional Perlocutionary C ondition 7 You may contest my invitation to exchange, at any or all of the points marked by the list of conditions for the successful perlocutionary act, for example, deny that I have standing with you, or question my consciousness of my passion, or dismiss the demand for the kind of response I seek, or ask to postpone it, or worse. I may or may not have further means of response. (C avell 2005, 180–2)

For our purposes, it is important to focus on the following three aspects of Cavell’s account: first, the absence of conventional procedures; second, the fact that neither addressee nor addressor is antecedently specified; thirdly, the fact that we are firmly in the domain of ‘passionate utterances’ that are contestable on each of their dimensions. Let us look at each of these in turn.

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T he absence of procedures or established conventions is crucial. W e are here in the realm of ordinary claims made or judgements directed by one person to another, and not in that of law courts, marital officials, and so on where procedures already strongly shape if not determine interactions. T his opens up for analysis the whole domain of the articulation of political requests, demands and claims. It is also in this respect that Austin’s and Cavell’s writings may be usefully supplemented by work done in contemporary political theory. For instance, in On Populist Reason and in more recent writings Laclau (2005, 73–7) argues that the minimal unit of social analysis is the category of ‘demand’, which presupposes that a social group is not a homogeneous group or referent, but rather ‘that its unity should … be conceived as an articulation of heterogeneous demands’. Demands, for Laclau, tend to start as requests, addressed to the institutions of power. W hen those demands are ignored or not responded to, these requests are turned into claims, which may be addressed to or against institutions (Laclau 2005, 74). A s for C avell, this process involves both the constitution of the identity of the claimants and that of the addressee of the claim through the establishment of equivalences between claims. S econd, in the case of a perlocutionary act or effect, what matters is that/the way my words are taken up by another (addressee). Being convinced or persuaded by an argument stands in need of acknowledgement by another, by the addressee of the expression. T he same holds for being affronted, incited, intimidated, harassed or offended. In each case in the perlocutionary domain the ‘“you” comes essentially into the picture’ (Cavell 2005, 180). It is worthwhile exploring this aspect further by looking at one of the examples Cavell uses to illustrate this point, namely, from Wagner’s opera Tannhäuser: Elizabeth’s outburst to Tannhäuser produces their Love Duet; Tannhäuser’s outburst to the contesting knights incites them to draw their swords in order either to kill him or to exile him again. These are not (when or why would they strike us as being?) just any statement made in just any contexts to just any effect; once issued, each appears deeply characteristic and revelatory of both the utterer and his or her addressee. (C avell 2005, 180)

S everal further crucial points need to be made here. It should be noted that utterances are expressive. What we say are not ‘just words’; our words ‘constitute’ us and are ‘revelatory of us’. This, of course, has clear political consequences. W e cannot remain at the level of argumentation as if arguments (our words) are separable from who we are and who we claim to be. It is in and through our demands and claims that our identities are constituted politically (N orval 2007). T o put it differently, the symbolic is not separable from the material world. Moreover, in contrast to illocutionary acts where the position of the subject is more or less given by a set of conventions and procedures, in the case of perlocutionary acts the emphasis is explicitly upon the constitution of a relation between the maker of a claim and the addressee of that claim and on the constitution of identity in that

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process. Cavell again: ‘One can say: the “you” singled out [as part of a passionate utterance] comes into play in relation to the declaration of the “I” who thereby takes upon itself a definition of itself’ (Cavell 2005, 184–5). Part of the process through which the ‘I’ is being defined consists in my declaration to have standing with you and, hence, to demand a response from you. This response can, of course, take a plethora of forms, ranging from an acceptance of my claim (to have standing with you) to a rebuff, a contestation or rejection of that claim. A s C avell notes, everything here is up for contestation. A s I have suggested earlier, the possibility of a contestation of conventions is already present in Austin’s discussion of performatives. However, the character of contestation, its possibility and the consequences of the failure of perlocutionary acts differ from that of illocutions. D espite the variety of possibilities of the ways in which things can go wrong on Austin’s account of illocutionary acts, Cavell (2005, 184) suggests that in the case of a failure of illocution the situation is normally reparable: ‘the purser should not have undertaken to marry us, but here is the captain’. But should a passionate utterance fail the consequences are potentially serious: the future of our relationship, ‘as part of my sense of my identity, or of my existence’ is more radically at stake (Cavell 2005, 184). Politically we only need to think here of the occasions upon which voices have been denied a hearing, ruled out as radical or extreme, to begin to get a sense of the consequences of a failure of a performative utterance both for the speaker and for the addressee. For this much is certain, such failures affect the identities of both claimants and those to which claims are addressed. Moreover, in the realm of the perlocutionary, ‘refusal may become part of the performance’ and ‘interpretation is characteristically in order, part of the passionate exchange’ (Cavell 2005, 184). Hence, there is no ‘last word’; revocability and responsiveness are essential. Let us now, in this spirit, return to the case with which I opened this discussion. Khulumani! From the roots of speech, in each utterance of revelation and confrontation, two paths spring: that of the responsibilities of implication; and that of the rights of desire … we shall not stop at what we should or ought to say, nor at what we may and do say, but take in what we must and dare not say. (C avell 2005, 185)

‘We shall not stop at what we should or ought to say, nor at what we may do and say, but take in what we must and dare not say.’ These words capture much of what is at stake in the court case brought by the Khulumani Support Group. This case dares to express – in the first person plural – what must be said, yet what does not (yet) have a clear institutional site for doing so. T he class action has been and no doubt will continue to be contested, both in court and outside. Its consequences, as I suggested at the outset, are vitally important in a globalized world in which it is virtually impossible to hold corporations and multinationals to account; a world

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in which capital is mobile and even progressive governments are (understandably) anxious to protect investments and not to scare off potential investors. T hose who are sceptical of democratic politics would argue that ‘talking changes nothing’ and that contestation in the end will run aground on the realities of material interests. H owever, the account of democratic politics that follows from the terrain covered here implies something altogether different (N orval 2007). If indeed much of the importance of agonistic democratic activity consists in the collective articulation of political claims, the Khulumani case suggests the opening up of previously unthinkable possibilities. T hese possibilities emerged, in part, in response to the perceived failures of the TRC. As is well known the TRC was established by an Act of Parliament to deal with gross violations of human rights that occurred during the apartheid era. In addition to hearings devoted to individual amnesty applications, the TRC also held institutional hearings into the role of the legal, business and faith communities in order to address their complicity with the apartheid system (see TRC 1999, vol. 4, chapter 1: 2). W hilst the C ommission explored and noted the different perceptions of the relationship between business and apartheid, which mirror a long-standing debate over the relationship between apartheid and capitalism, it concluded that: The business sector failed, in the hearings, to take responsibility for its involvement in state security initiatives … specifically designed to sustain apartheid rule. Several businesses, in turn, benefited directly from their involvement in the complex web that constituted the military industry (TRC 1999, vol. 5 chapter 6).

It is notable that the TRC here adopted a different approach to the question of culpability and restitution from what it applied to perpetrators of gross violations of human rights. As Nattrass (1999, 375) observes, ‘Whereas apartheid agents (security policemen, members of death-squads, etc.) were granted amnesty in return for full disclosure … the TRC proposed that all businesses … should be liable for punitive taxation.’ With this, the TRC ‘shifted from a focus on individual perpetrators, to a systematic analysis that equated any profitable activity with prospering under apartheid and drew a link between benefiting from the system and moral culpability for it’ (Nattrass 1999, 375). The failure of the business community to take responsibility for their actions and to acknowledge culpability led to the formation of organizations such as the Khulumani Support Group, which seek legal acknowledgement of accountability. N oting that none of the companies being sued applied for amnesty, they argue that: T he named defendants violated customary international law and a series of United R esolutions by aiding and abetting the crimes of apartheid; that the corporations acted with an unjustifiably high risk of harm to the oppressed population of South Africa that was either known, or was so obvious it should have been known; and that therefore the

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The specific form of this legal claim itself – the invocation of the Aliens Tort Act – bears the traces of contingency so notable in the terrain C avell calls the nonconventional. It is here, I would suggest, that the complicated inter-relation between convention and innovation becomes most apparent. Thus far I have looked at this interplay in the terms of the illocution/perlocution distinction. C avell in particular stresses that the distinction is one running parallel to the distinction between the conventional and the non-conventional. T he domain of passionate (or perlocutionary) utterances is a terrain in which nothing is settled beforehand. Let us remind ourselves of the various issues at stake here. There is no conventional procedure in place; there are no antecedently specified persons; the claim is expressed in the activity and there is no specified range of possible responses. In this sense, absence of convention runs through all the dimensions of passionate activity. Insofar as we are concerned with the legal terrain some interesting additional facets of the relation between conventional and innovation arises, facets that are not usually visible when considering conventional court cases. Let us return briefly to Cavell and Austin on this point. As I have just suggested, Cavell’s reading and his account of passionate utterances maintains a distinction, one that is perhaps too sharp, between that which is conventional and the nonconventional; the order of the law and that of desire: ‘From the roots of speech, in each utterance of revelation and confrontation, two paths spring: that of the responsibilities of implication; and that of the rights of desire.’ At least part of what is at stake here, both theoretically and politically, is the possibility itself of distinguishing, sharply, two ways of doing things. A s I pointed out earlier, A ustin contemplated in interesting ways the complications one runs into when dealing with conventions. Like Austin, Cavell also weighs up the possibility of an intersection between the conventional and non-conventional. In discussing the case of the T hird Estate, declaring itself to be the N ational A ssembly of France, he suggests that an Assembly might find itself saying, in reply to conventional power: ‘We are the re-makers of custom, reformers in a transformed, reformed present, instructing you in the rights of desire, of the need for a voice in our common history’ (Cavell 2006, 275). He concludes that since what is at stake is the contesting of convention, ‘of a given disposition of authority or standing … the illocutionary is out of joint and we are in the realm of the perlocutionary.’ In such   The named defendants include: Barclays National Bank Ltd., British Petroleum plc, C hevrontexaco C orporation, C hevrontexaco G lobal Energy Inc., C itigroup Inc., Commerzbank, Credit Suisse Group, Daimlerchrysler AG, Deutsche Bank AG, Dresdner Bank AG, Exxonmobil Corporation, Ford Motor Company, Fujitsu Ltd., General Motors Corporations, International Business Machines Corp., J.P. Morgan Chase, Shell Oil C ompany, UBS AG , A EG D aimler-Benz Industrie, Fluor C orporation, R heinmetall G roup AG , R io T into G roup and T otal-Fina-Elf.

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circumstances it makes sense to say ‘history is broken; it makes equal sense to say that here history is made’ (Cavell 2006, 275). History is broken; history is made. History is re-configured. The invocation of already existing legislation (the A lien T ort C laims A ct) in new circumstances is just such a situation. T here exists a convention, but one relating to injuries resulting from piracy. T his A ct – but in what sense is it this Act? – is invoked in order to bring a novel claim against corporations relating to human rights abuses. T his claim itself is in the business of attempting to inaugurate a new convention. H ence, convention is out of joint and the non-conventional is in the process of being conventionalized. Moreover, is the law not the terrain where the force of the better argument, par excellence, must win the day? W here nothing but reasoned argument enters the picture? How then do we situate these arguments and interventions that in fact seek to reconfigure the space of the argument itself? Can a picture of deliberation in its purity make sense of these features? Is this not a case, as opposed to Rawls (1971, 533), where the claim that is being made is one that is not addressed to a given institution or convention, but precisely one seeking to bring into being, but not out of nothing, a space in which the claim may be heard? N ot only is the space of the claim but the identities of the participants themselves at stake. As Cavell (2006, 273) notes, despite the fact that Austin’s name is regularly associated with the political, A ustin in fact never questions the use of the first person plural. To put it differently, he never makes the shift to the articulation of a ‘we’, the exemplary form of political expression, where the political refers to the moment in which ‘we’ articulate claims, separating and relating ourselves to a ‘they’, to others. In the Khulumani case, there is an attempt to articulate a political claim, a claim, in other words, which is constitutive of a political group or identity. C ontrary to understanding the Khulumani case as one simply ‘representing’ an already fully fledged identity at an institutional level (law courts), this reading emphasizes the fact that it is in and through the articulation of claims that the identity in question comes into being. H ence, this process gives a new form of unity to those ‘unemployed workers’ – the term used by Khulumani – represented by the case and this unity exceeds what has existed before. It is a unity that arises in a very specific situation, namely that of the failure of a large number of businesses to seek amends through the institutional hearings of the TRC and of the TRC to ensure sufficient financial compensation for victims of apartheid. T he act of representation through the articulation of a claim thus constitutes the unity of the unemployed workers seeking redress for abuses by business under apartheid. In Cavell’s words, they declare a standing for themselves. A standing with whom? In addition to the articulation of the claim and the constitution of the identity of the claimant, there is a further dimension that is crucial to the picture of democratic contestation. It concerns the addressee of the claim: symbolically at least, the international, globalized business community, as well as the South African government. In the face of this claim, Mbeki argued that it was unacceptable that matters central to the future of S outh A frica should be adjudicated in foreign courts ‘which bear no responsibility for the well-being of our country and

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the observance of the perspective contained in our C onstitution on the promotion of national reconciliation’. It was further claimed that the litigation undermined S outh A frican sovereignty, that it undermined the reconciliation process and that it would hinder direct foreign investment (Jobson and Madlingozi, 2007). Each of these claims is likely to continue to be contested. For instance, Archbishop Tutu in his amicus curiae submission to the court argued that since none of the defendants sought amnesty before the TRC, it would be ‘bizarre at best to hold that they may now find shelter from civil liability in private litigation because their payment of damages might somehow interfere with a reconciliation process in which they refused to participate’ (quoted in Jobson and Madlingozi 2007). Here again the cynic is likely to suggest that the case is unlikely to proceed and if it does, is unlikely to be successful. However, the point is that the claim acts as the first salvo in a battle, the announcement of a new terrain of struggle that, once opened, would be difficult to close down fully. (Hence, to contrast this case as ‘material’ as against the (merely) symbolic actions of the TRC simply does not make much sense; see Moon 2007.) The spectre of the claim, at the very least, is likely to haunt those exploiting people and resources in parts of the world where workers have little if any legal protection. T his surely is what lies behind the extreme sense of unease if not alarm with which this case is being viewed. T he claim not only declares a group to have standing, but it singles out another for response. It demands a response and this demand cannot and does not leave things unchanged. It is here that the full implications of a move from a Habermasian politics of recognition to a politics of acknowledgement become visible. A politics of recognition trades on existing identities and conventions and adjudicates recognition. An aversive politics of acknowledgement is a politics that takes cognizance of the non-conventional and constitutive character of political practices of claim making, in which our declaration to have standing with others demands acknowledgement. And as I have argued, even a denial here is an acknowledgement that does not leave the terrain unchanged (Norval 2007). At best it may force one to reconfigure how one perceives oneself and one’s responsibilities for one’s actions and the actions of one’s society – also elsewhere. This, perhaps, is the crucial lesson to be learnt from a passionate, aversive politics, that democratic politics is a process that is open to claim and counter-claim: ‘in a passionate exchange there is no final word, no uptake or turndown, until a line is drawn, a withdrawal is effected, perhaps in turn to be revoked’ (Cavell 2005, 183). Bibliography Austin, J.L. (1986), How to Do Things With Words, second edition (O xford: O xford University Press). Barnes, R. (2008), ‘Investment Conflicts for High Court’, Washington Post 13 May. Bohman, J. (1988), ‘Emancipation and Rhetoric: the Perlocutions and Illocutions of the Social Critic’, Philosophy and Rhetoric 21:3, 185–204.

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Butler, J. (1997), Excitable Speech. A Politics of the Performative (New York: R outledge). C avell, S . (1995), Philosophical Passages: Wittgenstein, Emerson, Austin, Derrida (Oxford: Blackwell). C avell, S . (2005), Philosophy the Day after Tomorrow (C ambridge, MA : T he Belknap Press of Harvard University Press). Cavell, S. (2006), ‘The Incessance and the Absence of the Political’ in A. Norris (ed.) The Claim to Community. Essays on Stanley Cavell and Political Philosophy (S tanford, CA : S tanford University Press). Jagger, S. (2008), ‘Victims of Apartheid can Sue Multinationals’, The Times 13 May. Jobson, M. and C. Abrahams (2008), ‘United States Supreme Court Order Clears the Way for the Khulumani International Lawsuit to go Forward’, http://www. khulumani.net/press-releases/5-press/226-united-states-supreme-court-orderclears-the-way-for-the-khulumani-international-lawsuit-to-go-forward-.html, viewed 13 May 2008. Jobson, M. and T. Madlingozi (2007), ‘The Significance of the Successful Appeal Ruling in the Khulumani Lawsuit’, Khulumani Support Group, November 2007. A vailable at: http://www.khulumani.net/ny-lawsuit/7-NY%20Lawsuit/223the-significance-of-the-successful-appeal-ruling-in-the-khulumani-lawsuit. html?tmpl=component&print=1&page=, viewed 2 June 2008. Laclau, E. (2005), On Populist Reason (London: Verso). Moon, C. (2007), ‘Reconciliation as Therapy and Compensation: A Critical Analysis’ in S���������������� . Veitch (ed.) Law and the Politics of Reconciliation (A ldershot: A shgate). Nattrass, N. (1999), ‘The Truth and Reconciliation Commission on Business and Apartheid: A Critical Evaluation’, African Affairs 98, 373–91. Norval, A.J. (2007), Aversive Democracy. Inheritance and Originality in the Democratic Tradition (C ambridge: C ambridge University Press). Rawls, J. (1971), A Theory of Justice (C ambridge, MA : H arvard University Press). Skinner, Q. (1988), ‘Motives, Intentions and the Interpretation of Texts’ and ‘A Reply to my Critics’ in J. Tully (ed.) Meaning and Context. Quentin Skinner and his Critics (O xford: Polity Press). TRC (1999), Truth and Reconciliation Commission of South Africa Report (London and New York: Grove’s Dictionaries Inc.).

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C hapter 11

O n the R ationality of D isagreement and Feeling: Brethren, Bombers and the C onstruction of the C ommon Fiona Jenkins

H ow does the idea of community as a place of shared feeling, loyalty or opinion function to position individuals or groups in relation to law? A nd how do images of particular communities as characterized by a range of ‘thick’ attachments differentiating them from what is conceived as the wider shared space of social life, also place these communities at a serious distance from the idealized models that theory often gives us of political community – where ‘being in common’ flows from sharing in rational terms of judgement? In what follows, I explore these questions through a detailed reading of a typical media report on the ‘community’ from which the terrorists responsible for the London bombings of July 2005 were deemed to have come. In a strictly informal sense this report is a ‘summoning’ of a particular community into a space analogous to that of law; one that will call on their testimony and subject them to the reasoned judgement of informed television viewers. My reading of this scene aims to challenge the terms of that summons, which I argue not only deals unjustly with the ‘in common’ of community but aims to de-politicize it by circumscribing its membership as particular, local and expressive. I elaborate this claim by taking up the suggestion of Jacques Rancière (1999) that in order to grasp the stakes of certain key political conflicts, those in which the questions of ‘who counts as an equal?’ or ‘what do we have in common?’ are in play, we should pay particular critical attention to what is heard as bearing the force of judgement as opposed to what is heard as mere expression of feeling. Perhaps it is the case that our most ordinary conceptions of the political (such as those pre-supposed by a documentary news report) facilitate a split between judgement and expression that leaves little room for critical exploration of the rhetorics and performativity of politicized feelings; feelings like the grief and anger articulated by some of the young Muslim men interviewed in the report I discuss. T hese, I want to propose, are not straightforwardly expressive of a subject position but inhere in the rhetorically loaded space of contest that shadows assumed or claimed commonality. In my specific development of this point, I seek to follow a path indicated by Lauren Berlant (1999, 59) when she writes, insightfully, that ‘politicized feeling is a kind of thinking that too often assumes the obviousness of the thought it has, which

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stymies the production of the thought it might become’. Such obviousness is a trap for both parties in the encounter the report shows us. I draw from my reading the conclusion that agonistic theory might usefully pay more attention to the practical linkage between the articulation of the ‘common’ as at once the obvious and banal and – as R ancière would have it – the question of politics. In essence, I aim to show here that we should not underestimate the force and power of the obvious as an element that is constantly being produced and reproduced around the discourse of ‘community’, co-opting both those positioned as internal to a community and those who take themselves to encounter it from outside; and that this has implications for the discourse of law and of political theory insofar as ‘community’ often figures in them as the space of presumed commonality. This chapter is an examination, first, of how ‘being in common’ is at once constructed and contested at a specific site of disagreement (to use Rancière’s technical term) whose contours are obscured by production of the obvious; and second, of how the meaning placed upon the speech elicited from a ‘community’ is constructed as testimony to belonging in ways that, as I argue here, create double binds for those positioned and positioning themselves in relation to it. S uch double binds equate to what I take Berlant to be describing as the effective stymieing of a dimension of political speech, one that agonistic models of the political ought to do more to mark and release. T he central claim, then, is that unless we practise an adequate critique of the tendency of politicized feeling to become schematized as ‘obvious’ (echoing assumptions about the natural and limited affinities of communities but also reflecting a consequential division between expressive and judgemental modes) we will tend to fall into patterns of interpretation that stymie or block the thought such feeling might trace and produce. ‘Critique’ in the sense I use it here is practical and not only theoretical. At stake in resisting the reduction of politicized feeling to a broadly unified community opinion, are strategies for foregrounding how thought is expressed in situations of struggle over rationality, but is then ‘heard’ as the expression of feeling; and thus an emphasis, again practical, on elaborating a description of the speech situation precisely as a space of struggle. T his last is not as easy as it may seem, since description of people’s ‘views’ readily falls into a presumption of neutral reporting that negates the critical ability to register contest between content and frame, or description and address and disavows the testimonial role that views are often required to play. Just how that negation standardly, and seemingly innocuously, occurs may become more apparent through consideration of the following example. The Feelings of Brethren At the opening of the ‘Beeston Boys’ report made for Australian television in July 2005, something of a coup is claimed. The community from which Britain’s ‘home-grown’ terrorists came has been reluctant to speak to the media. (‘I don’t

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want to be on camera’, says one, ‘because I might end up in Guantanamo Bay’). But (as the studio voiceover tells us) ‘after she has work[ed] hard to gain their confidence’, a group of young Muslim men begin to open up to the reporter, sharing their understanding of the feelings that have in their view motivated the attacks. These are expressed first as anger at their everyday experience of local racism as second- and third- generation children of Pakistani immigrants: Zubar: I think they did it because of the racism happening around in Beeston and stuff because I think everyone suffers from racism around here, but I think one day they just thought that we’ve had enough and we’re gonna do something about it. And, fair enough, it’s not the right way to do it, but in their minds they must have thought they were right. R eporter: S o you can understand why they were angry? Zubar: Yeah, I can relate to them. R eporter: H ow can you relate to them? Zubar: Like, when people be racist, in your mind you just want to get at them, but most people just … they only think it but these have gone the extra level then and actually done the bombing.

This account of the local experience of racism is then linked directly to anger about the ‘people getting killed all over the world’. As one interviewee puts it, also responding to a question about how he relates to the suicide-bombers: Arif: Most of these lads, they were respectable lads, they had good backgrounds … so that’s not the reason. But this is something that the British community needs to look at – what makes a person do such a thing? You know, it is a big thing to do. I can’t do it. [But …] If you look at Palestine, there’s people getting killed there, if you look at Afghanistan, there’s people getting killed there. You look in Iraq, there’s people getting killed there. Palestinians, I mentioned that first. How come the media doesn’t go there and see what’s happened there? Here, what happened? We’re all saying its wrong that’s happened, 57 people have died, it’s a big thing … Well, 57 people died, there’s thousands of people dying all over the world, so there’s questions to be asked and we need answers.

A nd another continues: Kanni: If you want our views, they’re gonna hurt. Why do they hurt? Because, be in our shoes for once. Try being a Muslim man and getting to know how it feels.

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In further interviews similar sentiments (or arguments?) are repeatedly expressed, locating the rationale for the attacks at once in local racism and then, again, in a form of politicization derived from a mediatized, geopolitical neglect of the sufferings of Muslims worldwide. Within these statements, both the specificity of Muslim experience and its potential communicability are asserted. A t the same time, and perhaps conversely, British Muslim identity is presented as especially available to a sympathetic experience of the (allegedly unacknowledged) suffering of Islamic peoples. The reporter’s responses to her interviewee’s comments typically invite the shift back from interpretation of the terrorists’ motivations to personalized expression. ‘So why do you think they were so angry?’ asks the reporter in one sequence. ‘Well look at the policies that have been going on. We’re not just talking about these four – I’m talking about everyone, I’m talking about myself here’, an unnamed man replies. Only the last point is taken up by the reporter: ‘Why are you angry?’ she asks, localizing and isolating as his feeling the thought that he is simultaneously presenting as bearing on everyone. It is telling, then, that where his ‘everyone’ includes him, her question responds by singling him out as representative of a particular community, one whose feelings of anger are in this sense ‘like’ those of others. Via this localization, a certain domestication takes place of the man’s articulation of thought and feeling, limiting its force as a claim on the ‘outsider’ that would exceed the merely expressive form. When something that looks like a political claim, premised on the ability to invoke the claims of membership, is then asserted (‘this is something the British community needs to look at’) its potential force as expression of neutral–universal thought is undercut; and this in part via the way in which the question of membership in overlapping or in mutually exclusionary communities has functioned as one of the constant rhetorical stakes of the exchange. This contested question of who belongs with whom, or who is ‘just like’ whom, also inflects the persistent proximity of expressions of speech with expressions of violence, and is rhetorically emphasized by the terms of the exchange. T hus the young men’s reaction to experience of injustice is framed by themselves as being of the order of thought that stops short of violence, by contrast with the action of the suicide bombers. Yet their expressions of what one stops short at nonetheless risk assimilation into that violence, as the feeling that is a precursor of action (‘in your mind, you want to get to them ...’). The meaning of such remarks is allowed to hang, ominously, within the dramaturgy of the encounter. R unning through these exchanges, then, is a complex problematic of identification; both self-identifications and the identifications imposed by others; both identity as status and identification as affinity. Take for instance the repeated reference to the suicide-bomber’s respectability. One says: ‘They were general lads, just like ourselves, working, educated, financially secure.’ The identifiers of ‘just like ourselves’ are not first of all Muslim (though this is why these men have been interviewed) but working, educated, financially secure – ‘general lads’, not fanatics. It is as though this man is establishing that the conditions of social

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membership were all in place – they were from good families, their motives were nothing to do with a lack of material well-being or civil rights. The motive he then attributes to the suicide bombers, indeterminate as it is between explanation and exoneration, aims to present their action as something that can be understood, something that begins in and invites sympathy even if the actions it gives rise to go too far. H e is bidding for understanding of what is residually reasonable in an action he also condemns – ‘what put the picture in the mind is the media they are seeing – their own brethren getting killed, day in, day out and it does affect you’. H ere too a provocative play of proximity and distance begins; the man is concerned to stage and not only affirm his relation to a community; and his rhetoric addresses a non-proximate audience from whom he seeks to elicit a sense of the proximity that feeling might construct. But both these aspects are touched with ambiguity and impossible to deploy without becoming caught in their folds. Thus his doubled account might at once align him in a certain acknowledgement of the intelligibility of the bombers’ motivations and seek to defend against finding himself grouped with others into the ‘community’ from which the suicide bombers came. T he structure of his self-defence (supposing it is such) comes in part through his anticipation that such sympathies, attributed and assumed, can be shared as a ‘human’ thing. And in this he is no doubt right – for ‘we’ can surely imagine how dreadful it must be to watch war or natural disaster unfold in the place that one is (in some sense) from or where a community lives with which one is (in some way) identified, and to feel that no one cares. Yet a double bind seems to be created here; on the one hand, the potential for creating a certain order of sympathy is provided by constructing reasons for acts of terror that lies in the awfulness of even distantly witnessed events, while on the other hand, this also creates the potential for the identification of a ‘problematic’ community – those mutually proximate others who are likely to view such reasons with sympathy and more than sympathy, those who form an affective community, a community of blood and kinship, those who are ‘brethren’. The man’s comments move within this circuitry, as he speaks of Islamophobia and violence against Muslims as a motive for revenge, but then also of ‘our brethren, of humanity, not my brethren, nor of humanity – the same as you, the same as me’ and declares ‘I’m going to put them barriers down’. Television as Trial and Jury One question I would like to pose here is whether grief and anger of the order exposed by these comments might serve primarily to confirm to those watching that testimony is being given to the existence of a problematic community – one existing at once in the midst of the nation and oriented by sympathies beyond it? This would be one way of registering their import as ‘politicized feelings’ insofar as they both enter into this use and seek to resist such co-option. Within this, we should not presume in advance that such feelings properly ‘belong’ to individuals or communities, since they echo, shadow and address the terms of exchange.

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Consider again in this light why these men might only reluctantly speak to the media. I would suggest that within the frame of expectation they are provided, they do not simply tell their stories or give their views but are compelled to attempt the public negotiation of sticky, slippery, treacherous boundaries between conflicting orders of membership and belonging, caught in their impossible double binds and playing a complex declarative game. Lacking, yet mimicking, the status of the social scientists who will also later be interviewed addressing the reasons and causes of terror, the journalistic effort to gain their impressions is disingenuous if viewed only as harvesting the testimony of privileged witnesses; for it is the very intimacy of the community, here placed on a certain kind of trial, that implicates all these young men. T hey are required by the terms of anticipation through which their testimony is being sought and produced not merely to express that intimacy but, paradoxically, to reassure us of their properly indeterminate position as targets of suspicion. To speak in such a context is to be given over to a representative position that co-opts every gesture. T his is surely not made deliberately overt in the billing of this report as an ‘intimate meeting with the neighbourhood friends of the young British Muslims named as suicide bombers’, nor is it some dark conspiracy that is enacted on the screen. C ould it be, however, an effect of a certain construction of the relationship between expression and judgement that these awkward consequences pass unremarked? It is worth examining the political stakes of the following exchange, some of whose terms I have already discussed: Reporter’s question: So were they very political? Man (who did not wish to be named): They were general lads, just like ourselves, working, educated, financially secure, they were from financially secure families. What put the picture in the mind is the media they are seeing – their own brethren getting killed, day in, day out and it does affect you. (McNeill 2005)

W hat does this answer offer to its listeners? C learly it provides an interpretation of a violent action and does so on the basis of some degree of acquaintance with the perpetrators. The frame of reception, however, allows for a significant ambiguity in the sense in which the remark bears authority, one we might situate in the tension between the expression of thought (an interpretation of the reasons for action based on acquaintance) and the expression of feeling (reflecting common membership in a community of loyalties and the privileged insight into the feelings of others that this affords). T hus the man might be heard as offering an order of explanation or interpretation regarding certain powerful feelings and violent actions that either confirms or transcends the limits of community. A thought is offered about what moves or motivates those who are ‘just like ourselves’ to take violent action. However, ‘just like ourselves’ is, in effect, an indeterminate phrase, both particularized and potentially generalizable depending on whether it is heard in the mode of description or address. T he thought is presented as mediated by

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experiences imagined as cognate with the feelings of specific, local others. At the same time, the thought is also put forward as a potential claim on the feeling of those who can be expected to examine it from the outside and yet might be somehow moved by it (hence the ambiguities of the second person position in the phrase, ‘and it does affect you’; ‘you’ here is both, ‘one’, that is, anybody, and the ‘you’ that connotes the intimacies or affinities of that ‘one’, ‘you, me, those who are touched’). What, then, does the reporter seek to get from this interviewee? An opinion, for sure; but how is this inflected by the ambiguities charted above? I have argued that the man makes in his response a claim on the ‘outsider’, and does so in the same gesture by which he partially accepts an affinity for their experience. This doubled gesture, I suggest, is accepted in the rhetorical construction of the report, but on qualified terms that systematically separate the claim of feeling as bearing an expressive-representative function from the claim of thought as a neutral–universal medium. T his gesture of separation, for instance, animates some of the voiceover commentary, clearly introducing the risk of a certain patronizing tone, as in the comment: ‘In the world of these young men it’s logical to believe that America was behind the attack on the World Trade Centre and that Osama bin Laden is just the fall guy’ (McNeill 2005). ‘Logical’ in this context means ‘understandable’, but does so in an exactly opposite sense to the ‘understandability’ that the young men are seeking to elicit. The voiceover remarks facilitate the viewer’s occupation of a position which is at once that of superior knowledge or rationality and of sympathy derived from an understanding of the feelings of those who occupy a closed and constrained universe. It goes along these lines: ‘We certainly know they are wrong – but we also know where they are coming from.’ This is a good example of how a perfectly ordinary news report articulates the distance between its viewer-subjects and the objects of their interest and curiosity. A crucial equation governs the structure of that distance: thought becomes explicable as feeling and feeling as confused thought, and this just insofar as ‘being-like’ others bears the strictly expressive–representative construction that the reporter’s set of questions give it in the ensuing exchange. The significance of such constraint goes beyond what might seem the restricted question of the way in which these men’s voices appear in a news report, for it inflects the issue I flagged at the beginning of this discussion of how, in an informal but more than merely figural sense, this community appears before (and is made to reinstate) the model of a law that seeks to determine responsibility via a process of understanding that elicits testimony from those intimate with violence. It is in a sense extending this thought, perhaps, that the boy who states that he does not want to appear on camera because he doesn’t want to end up in Guantanamo Bay, absurd as this may sound, has not got things entirely wrong. For something is at stake here that binds together a problem in the status of certain persons as able or unable to appear as individuals before the law, with the ways in which our idea of democracy seems unable to surpass the garnering of a ‘diverse’ opinion that is immediately constructed in senses that foster the image, exclusivity and

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privilege of a certain kind of ‘we’. This ‘we’ is understanding of and yet radically distanced from the specificities and problematic loyalties of sub-communities; it is, at the same time, suspicious of such communities as sources of a threat whose meaning as violence is radically over-determined, figured as a persistent potential and therefore highly available to multiple interpretations specifying its presence and reality. The topic of this particular set of interviews is not irrelevant, for ‘terror’, perhaps by definition, cannot be the ‘crime’ proper to an integrated national citizen, but only of those proximate enough to threaten but distant enough to be inhuman, in the way that the other’s community, eclipsing all individuality, is figured as inhuman. T he understanding of a crime of violence as terror already produces an understanding of its problematic source in what is monstrous – not of us, yet among us: ‘home-grown’, but unheimlich. T his media report thus instates a particular version of the double bind of testimonial speech, inflected by an undermining equivocation at the heart of affinity. Here an act of self-distancing is called upon to play a critical and yet equivocal role: those of the ‘Muslim community’ must assert their right of belonging to the wider political body, by performing a condemnation of the act of terror; and yet, as we know this to be required of them, to be the price of their distinction from the community of terror, we cannot be required wholly to believe their claim. If it is testimony then, in this context, it is not quite truth, its quality compromised by its very solicitation. Not unlike the procedures of torture, words are extracted or elicited that can simultaneously function as forced truth and co-opted lie. With respect to ‘community’, what is staged here is at once an enactment of affinity, a claiming of relationality and a gesture of distanciation and disavowal, in which most of the terms and moves are predictable and almost impossible for the participants to surpass or escape. T hese youths, if coaxed, cannot merely explain the feelings that might have given rise to ‘radicalization’ in their midst but must simultaneously betray something of the imagined, lived and re-created loyalties of their own forms of belonging. S o if the productive task of interpreting violence is central to this report, as one of the imperatives entering into the need to speak, or make spoken the almost-obvious, then it becomes important to critically reflect on how a viewer position is being solicited (sympathetic but remote) alongside ambiguities that attach to the attribution and affirmation of community. If no surprises are really expected when a reporter deems it worthwhile to travel around the world to interview those figured as in some respect ‘close’ to a scene of violence; if there is, in advance, an expectation of what views will be expressed and by whom and the reporter’s choice of interviewees, questions and response reflect those expectations; then, arguably, what is elicited is the obviousness of predictable opinion, opinion that one knows where to look for; opinion that is expected, yet that must, nonetheless, be relayed. R ancière (1999) calls these processes ‘consensus-effects’ and they enter into the confirmation and reinscription of established terms of separation and sharing, the distribution of proper ‘parts’ in community and the determination of those who cannot participate in the properly political capacity of judgement. But alongside these, we should make room

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for his central term of political analysis – ‘disagreement’, the undoing of consensuseffects. D is-agreement as the praxical dimension of the political involves more that identifying consensus-effects: it requires un-doing them, releasing a political potential that flows through laying claim to universals within a politicized feeling attributed with merely local and particularized force – thus establishing a claim to being-in-common that is not conceded by one’s opponent. Does the scene I have described carry these potentialities? A nd which aspects of agonistic theory would help us best to see them? Putting Words in Play It would not, I think, be very hard to establish that the typical construction of relationship between the ethical, religious and ethnic affinities of communities and the appropriate spheres of political deliberation and opinion-formation, to be found in liberal-democratic models such as that of H abermas or R awls, would generally support rather than challenge the premises and expectations that guide the media report we have been considering. N otably, such accounts would seem to entrench a difference between the natural affinities or predictable interests of pre-reflective political life and the reflective realm of rational articulation, which is concerned in an abstracted way with what everyone ‘affected’ might say on a matter, but aims to weigh all sides and stand above any conflict. Arguably this would closely chart the asymmetry in the report between one order of opinion-gathering (that elicited from the young Muslim men) and another order of opinion-formation undertaken in the nation’s living-rooms on the basis of a sympathetic, yet distant understanding of what it ‘feels like’ to be them, coupled with the responsibility of ‘weighing’ what one has heard. It is perfectly possible to conclude such a process as the reporter herself does, by remarking that the interviews ‘leave us with more questions than they answer’, without this in any way damaging the sense that we have here undertaken a judicious exercise in gathering perspectives as input into public rational debate. It is also important, then, that the place of political debate so considered is not in Beeston but elsewhere, in a public space imagined as that of distanced, cool reflection. One might even say that from this perspective, the outcome of uncertainty and being left with many questions is fortuitous, making room for a cut to the studio, and some interviews with sociologists. It is interesting to consider why it is so hard to argue against the standard construction of the significance of such reports, for it seems obvious that we should want to know what people close to events think and I do not dispute what is of interest and importance in that. N onetheless, this is equally clearly a site where some well-known difficulties with deliberative models would surface, for instance the entire question of how far potentially ‘radicalized’ youth could be deemed appropriate participants in the dialogue that constructs a political public opinion, versus how far their commitments (for instance, actual or potential sympathies for acts of violence) must place them outside it, as objects of its understanding

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rather than subjects of its views. T his might further imply that within a hegemonic political rationality the views of these youths are ‘silenced’ in their potential capacity to contest the way in which boundaries between realms of substantive commitment or belonging and membership in the political community are drawn up. T here are versions of agonistic democratic theory which would accordingly locate the ‘political’ moment missed by deliberative accounts in acknowledgement of the necessary and productive instability of all such borders. T he critique of the Beeston report I have just conducted would then take on its force through marking the contestability and arbitrariness of the boundary between ‘us and ‘them’, and thus the ways in which the subject and object positions of the report are maintained and stabilized as unacknowledged aspects of power. Yet this would not be quite my understanding of the salience of that critique, or at least, it would not exhaust it. A nd perhaps what is at issue here is what often remains in agonistic readings of the political a certain idealization of the political situation of dialogue between equal participants; for discussion (however agonistic) can only really take place between those who provisionally count as equal enough to enter a common arena. T o this degree the topology of the dialogical situation remains forceful even where contrasted with an effect or risk of ‘silencing’ that we would bring to mind in order to acknowledge boundaries whose contestability is genuinely on the agenda. But this topology perhaps does not sufficiently register one crucial element of the situation of interlocution as it unfolds on the streets, in the parks and the pubs of Beeston (in public spaces, repeatedly invoked and referred to in the report as places of fear, division, exclusion and encounter, as political spaces). For what takes place there is not silencing, but rather the eliciting of speech under certain strong expectations of what it will provide. W hat also simultaneously takes place is the attempt to negotiate these expectations on the part of those captured within their terms. It is an attempt that is not exactly successful insofar as the vocabulary of politicized feeling it mobilizes continues to bear the frustrating force of obviousness. N onetheless, it suggests that this might be an important site at which to locate a political potential – not simply via the self-limitation or democratic critique of authority (however we elaborate the terms of that) but in the ‘opening up of public space as the space of dispute’ (Rancière 1999, 58); and within this, the critical question of who is just like whom? – and on what basis is this equality attributed or claimed? But what might this last set of thoughts entail? On Jacques Rancière’s account, it is precisely the putting into play of words and the scenes of exchange that will distinguish political public opinion from its consensually oriented standard form. The former is ‘theatrical’ insofar as exchange implicitly also stages ‘an opinion that evaluates the very manner in which people speak to each other and how much the social order has to do with the fact of speaking and its interpretation’ (1999, 48). The latter, the exchange of opinion conducted toward the end of ‘well-meaning consensus’, remains within what Rancière describes as the vicious circle of ‘cure and disease’ (that is, in the terms developed here, the reinstatement of the obvious, the summoning

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of a prefigured testimony). Here, he suggests, the apparent objectification of a ‘problem’ goes hand in hand with fixation on radical otherness in a sense that reflects the unwillingness to politicize experiences of difference as occasions of dispute between the community and that part in it ‘without a part’ (1999, 119). ‘Opinion’, in its consensual form, ‘can become the very name for being in one’s place … [and] specularity can become the system of interiority that feeds each citizen and every part of the community the image of what they are’ (1999, 106). R ancière here gives an account of disagreement that I am trying to position in ways that follow from my opening remarks; that is, I am reading ‘disagreement’ as identifying in a political scene the issues – and disruptive potential – posed by what Berlant suggestively describes as stymied politicized feeling. Interpretation of such scenes consequently should insist upon registering the ambiguities of speech-situations as neither failures of expression nor of rationality but rather as both the targets of attempts to produce what we could call ‘consensus-effects’ and as potentially politically productive sites. If they are to become the latter, then they must critically involve the release of politicized feeling from obviousness. H ere thoughts/feelings might ‘become’ in ways that flow through a de-naturalization of the position of enunciation and through bringing into relief the rhetorical construction of political issues; while a foregrounding and participation in the ‘staging’ and de-naturalization of exchange differentiates Rancière’s version of agonism from a more ‘theoretical’ critique. In revealing the character and sites of political potentiality, therefore, R ancière pays particular attention to the poetics of encounter and the rhetorics of interaction rather than the deployment of argument/expression from any given subject position. T o de-naturalize the position of enunciation is to occupy what R ancière refers to as the position of the ‘surplus’ subject (or ‘the part without a part’). The position of the non-representative or surplus subject is precisely not an identity but the collection of strategic gestures, ‘defined by a whole set of operations that demonstrate […] an understanding [of the other’s tactics] by manifesting its distancing structure, its situation of relation between the common and the not common’ (1999, 58). Within this, all the ambiguities of distance and proximity, of membership in universal or particularized communities and of feeling and expression, charted in the previous discussion, are critically in play. But further, (a) that they are in play and (b) that their being in play is made visible as an (un)acknowledged element of the situation, are together what constitutes a scene as political. Disagreement, moreover, is a speech situation in which ‘one of the interlocutors at once understands and does not understand what the other is saying’ (1999, x). It registers a situation in which rather than one party asserting ‘black’ and the other ‘white’, both assert ‘white’ but mean different things by it (and at least one party takes it as obvious that there can be no dispute over something as plain and selfevident as whiteness). T heir difference is not to be constructed as a function of ignorance on one side with its flipside of privileged knowledge on the other; nor, Rancière insists, should we read into this situation a Lyotardian ‘differend’.

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Without here going into the details of Lyotard’s position, it is worth rehearsing why R ancière so deliberately distinguishes them and especially because this again touches upon why it is not an effect of silencing that concerns us here (see also Schaap in this volume). In the situation Rancière proposes, neither knowledge nor ignorance is at stake but rather a ‘contention over what speaking means’ that itself ‘constitutes the very rationality of the speech situation’ (1999: xi, my emphases). The contention over what speaking means refers us to the need to pay attention to the ways in which positions and relations are constructed via the enunciation of what is putatively uncontroversial and obvious. T he reference to the rationality of the situation, I take it, is in part meant to resist the tendency for an intimate space of encounter to be dissolved or resolved into the separation and distanciation that would mark a rationality removed from situations (‘and now, back to the studio’). T he rationality of the situation is instead posited as a function of unruly proximity, such that the claim to share something (the capacity to speak about ‘white’) might at any moment be animated. W hat R ancière opens to critique here is how, as contention dissipates into an authoritative hierarchy and separation, it is not only removed from the situation but from the rationality of claiming the shared. R ationality would then become only the marker of that neutering achievement, seeking for itself a dis-appearance, such that it no longer belongs within the place of exchange. W hereas for Lyotard this situation of separation between heterogenous discourses typically produces a ‘silencing’ of one party who cannot argue in ways that are intelligible in the idiom of the other, R ancière aims to stage a scene of much greater and ongoing proximity inflecting the common but mutually illegible term (for instance, ‘white’). Since the interlocutors ‘both understand and do not understand the same thing by the same words’, they are both necessarily placed already in the situation of borrowing one another’s words (even if, for at least one party, this is what they most fervently wish to deny). Politics then takes place in the space of intimacy such ‘borrowing’ permits and demands. The key struggle will be over how that borrowing is performed and construed. W ho owns? W ho uses? When is borrowing a de facto sharing? When is it a taking that does not wish to give back and tries to refuse even the return of exchange? We are speaking of language, but the wider implications of such political relations are far from irrelevant. T he staging of an issue will put into play the problem and paradox of the share: ‘When is there and when is there not equality in things, between who and who else? What are these ‘things’ and who are these ‘who’s?’ (1999, ix). W ithin this, there is struggle over what is thought and what feeling, a struggle that might be resolved apolitically as a separation by positing the ‘other’ as bearer of feeling and the self as subject of thought; or conversely, by reserving the language of true feelings for the self and allowing that the other may borrow this privilege only under the terms of presumptive suspicion. Rancière recites Aristotle’s division of the merely expressive ‘voice’ shared with animals from the properly rational speech of man as the division that marks the beginning of political philosophy qua discipline in which rationality is situated outside the realm of contest; and this by

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its being viewed as the product of the separation between expression and thought. Hence the force Rancière attaches to the question: ‘What does it mean to be a being who argues?’ (1999, xii). This both raises issues about how a person’s words can be held to bear the force of argument as opposed to appearing as the expression of feeling and about how argument can be situated as world-opening, as refusing the ‘given’ of separation, as the ‘opening up of common (which does not mean consensual) worlds where the subject who argues is counted as an arguer’ (1999, 58). In essence, Rancière’s (1999, 44–9) argument against Habermas and Lyotard alike is that they presume a situation of separation and then raise the question whether it can be justly constructed. R ancière (1999, 46) denies the primacy of separation by placing both contesting claims in a common situation structured by disagreement (and phrases this as follows: yes, there is a common language; no, there is no common language: but the two opposed claims must encounter one another – they are both within the situation under its political construction). W hat is signalled here is the political force of succeeding in sharing out the issue of proximity in belonging: that is to say, the question of the common world is now in play for both sides, not just one. H ence it is bound up with a de-naturalization of the position of enunciation that disturbs the descriptive/testimonial terms on which the particularized other is heard, to produce the possibility of speaking in the provocative/universalized mode of address. Moreover, the disturbance of the established relation between content and frame that also flows from this is bound up with critique of a sort that I take the first part of my discussion to make visible or to put in play, in and as the resistance of the young men to being interviewed, in and through the rhetoric they deploy to present common worlds in excess of given terms of separation. T he critique might seem only to foreground the terms on which their articulations of a common world are coerced and co-opted. A nd yet a political reading of these scenes should not stop there for risk of assuming once again an impartial standpoint of judgement. W hat is political lives on in the resistance to being coerced and co-opted and in the testing and contesting of the encryption of equality in the question who is like whom?; it lives in the potential of what is said in exchange to exceed the bounds of its containment as the speech of given subjects, playing by the rules; it lives, then, in the rhetorical strategies these men deploy and that might gather strength if they succeeded in compelling a different set of responses than those held out to them by the reporter. It is this that Rancière’s agonism helps us to see. In Lieu of Conclusions My reading has sought to make explicit the traces of this contestation within the Beeston report, but one more gesture perhaps deserves mention. A fter the young man speaks who refuses to be on camera for fear of ending up in Guantanamo Bay, another intervenes, perhaps refusing in a different and intriguing way to appear before the law that will prescribe the meaning of the encounter.

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Kanni: T hese lads will be more than happy to go out of their way a mile down the road and get some dinner for themselves and the four of you, knowing that you’re an A ustralian and everything.

And so they take her down the pub. A hospitality is offered that perhaps continues to register the hostility underpinning the encounter, an equivocation Derrida’s interpretation of the ‘hostis’ would also mark (Derrida 2000, 43) as an antagonism sublated but not superseded. The men (working, educated, financially secure) only agree to speak to the reporter after they have taken her to the pub and bought her lunch. A nd I wonder – is this a gesture that resets the terms of what is in common, making it possible for the participants to believe in the possibility of their being heard as those who argue, and the importance of this struggle as both preliminary to and a critical stake of being interviewed for their opinions? Acknowledgements I would especially like to thank Lauren Berlant, Jacques Rancière, Janice R ichardson, A ndrew S chaap, A lex T homson, and other participants in the workshops in Melbourne and Exeter for their great comments on earlier drafts. Work on this chapter was supported by a Visiting Fellowship at the Humanities R esearch C entre, AN U, between March and May 2008. Bibliography Berlant, L. (1999), ‘The Subject of True Feeling: Pain, Privacy and Politics’ in A. S arat and T . Kearns (eds) Cultural Pluralism, Identity Politics and the Law (A nn A rbor, MI: University of Michigan Press). Derrida, J. (2000), Of Hospitality, trans. R achel Bowlby (S tanford, CA : S tanford University Press). Lyotard, F. (1988), The Differend: Phrases in Dispute, trans. G eorge Van D en A bbeele (Minneapolis, MN : University of Minnesota Press). McN eill, S . (2005), The Beeston Boys, archives, dateline 27/07/05 (S BS , A ustralia). T ranscript available on request. http://news.sbs.com.au/dateline/index.php?pa ge=archive&daysum=2005-07-27#, accessed 25 January 2006. Mouffe, C . (1993), The Return of the Political (London: Verso). Rancière, J. (1999), Dis-agreement: Politics and Philosophy, trans. Julie Rose (Minneapolis, MN : University of Minnesota Press).

C hapter 12

T he C omplex A gon A drian Little

Much of the impetus for the recent surge in interest in agonistic politics is the way in which contemporary liberalism – and the normative models like deliberative democracy which it often invokes – fails to come to terms with the potentially conflictual nature of politics in diverse societies (Little 2007). Thus, while liberals frequently attempt to recognize and contain diversity in their political thinking, this usually appears within the overarching objective of seeking rational agreement and consensus on matters of dispute (H abermas 1996). A gonistic theorists tend to be much more wary of this rational, consensual impetus as a potentially depoliticizing element in political theory. Bonnie Honig, for example, talks about the displacement of politics in discussing the work of theorists like Kant, Rawls and Sandel who, she argues, close down political engagement. Using N ietzsche and A rendt, she contends that a more appropriate understanding of politics involves: a perspective from which agonistic conflict is celebrated and the identification or conflation of politics with administration is charged with closing down the agon or with duplicitously participating in its contests while pretending to rise above them. (H onig 1993, 2)

According to this approach, conflict is inherent to politics and agonism refers to the means by which dispute is legitimized and regularized between adversaries rather than necessarily generating the exclusion of antagonists (Mouffe 2000). While this identification of the tendency of many normative theorists to displace political engagement is welcome, the question remains as to whether agonistic politics is better equipped than other theoretical perspectives to incorporate notions of social complexity. C omplexity theory is a broad, diverse set of ideas borrowed from the natural sciences that is increasingly prominent in the field of social analysis (Byrne 1998, C illiers 1998, Law and Mol 2002, R ichards 2000, T hrift 1999, Urry 2003). In the social sciences complexity is both a descriptor of the ontological condition of the social and a means of analysing and challenging the normative foundations of much contemporary political theory. It unsettles foundational principles in political theory and disrupts the transitions from presuppositions about the basis of politics to models of political engagement which seek to ameliorate the conflict and disagreement which most theorists recognise as central to our understanding of politics. Thus, like agonism, complexity theory implies that the:

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H owever, the recognition that much democratic theory is established on exclusionary foundations that marginalizes and/or pathologizes those on the fringes does not automatically make agonistic democracy more receptive to complex analysis. A fter all, agonism may be concerned with an opening out of democracy to greater contention and conflict but this does not mean that it is not exclusionary. T he establishment of a more agonistic conception of democratic politics cannot avoid the inherently paradoxical nature of democracy itself, that is, the gap between the promise of equality and the inability of democracy to deliver on its promise especially when combined with the liberal imperative towards freedom. As we shall see, complexity theory invokes a dynamic model of politics that makes any notion of closure around a specific institutional structure problematic and exclusionary. Potentially, then, there is much common ground between complexity theory and agonism but, as we shall see, agonistic theory – like the liberalism it criticizes – struggles with the ontological foundation for politics that the idea of complexity establishes. T he major contention, then, from a complexity perspective, is that agonistic politics involves processes that reflect some of the problems which it identifies in liberalism albeit on a more open, disputatious foundation. A s Mouffe (2000) points out, agonism is an improvement on liberal theories of democracy insofar as it highlights the political nature of exclusions rather than justifying them in moral terms. H owever, this presupposes that the contingent, strategic grounds for decisions about exclusions are made on the basis of a clear understanding of what is deemed permissible and what is not. C omplexity, on the other hand, suggests that we may never be equipped with the epistemological wherewithal to make these clear distinctions. To clarify this point, the next section will explain the implications of complexity theory for politics and law before returning to analysis of how this might be played out in terms of democracy. Understanding Complexity, Politics and Law T he relationship between complexity, politics and law is relatively uncharted territory. W hile the implications of complexity are wide-reaching, it is an idea that creates a fundamental dilemma for politics and law. A t the level of explanatory   Elsewhere I discuss in more depth the idea of the ‘constitutive failure’ of democracy (Little 2008).   The primary influence of complexity theory in politics has tended to be in fields such as public policy. See, for example, the work of Wagenaar (2007) on urban governance and

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social theory, complexity suggests that politics tends to assume a range of static conditions from which to theorize. T hus, the spaces and boundaries of the polity are established, the relevant actors (whether included or excluded) are identified, the range of appropriate views and opinions are set out in advance (Little 2008). T he sociological understanding of complexity points in different ways to the need for an understanding of social dynamism that reflects the changing nature of the constitutive elements of social phenomena. A complementary scientific approach to complexity suggests that social issues and problems cannot be simply reduced to their constitutive elements. Instead, we need to recognize that the reductivist tendencies which are criticised in scientific literature (e.g. generalizing from the use of experiments in controlled conditions) are equally prevalent in areas of social scientific interest especially where essentialist claims are made on the behalf of groups of people. Importantly, this chapter recognizes that there may be a space between the explanatory sociology of complexity and the scientific analysis of certain phenomena that needs to be bridged. Complexity theory contributes to a dynamic, flexible interpretation of contemporary democratic politics which unsettles the very possibility of a meaningful construction of normative politics whether agonistic or not. From a complexity perspective, institutional politics, policy making and the framing of law are usually ‘static’ in the sense that, by their nature, they are concerned with decisions about a particular issue at a certain point of time. O f course this is necessary in these domains if anything is to be done. H owever, a complexity perspective suggests that these snapshots do not prevail for any great period of time. A s a result the context within which any legal or political decision is made is liable to change (potentially soon after the actual decision has been taken). For this reason political and legal structures and institutions need to be fluid and dynamic to enable them to be receptive to the demands of complexity, rapid transition and flexibility. While it is not impossible for law to encompass these possibilities, frequently the law tends to react retrospectively to changing complex circumstances rather than evolving alongside them in a way which might be less reactive. T he impact of complexity theory on political analysis and, in particular, political theory has been patchy. N ormative theory has been especially culpable in failing to grapple with the full implications of the contingency and dynamism that complexity theory identifies. This chapter argues that this is evidence of a tendency to either ignore complexity theory altogether or to reduce its impact by Bang and Esmark (2007). For the application of complexity to international politics, see H arrison (2006).   See, for example Urry (2003), Melucci (1996), Beck (1992) and Castells (2000).  C omplexity theory can be interpreted in many ways. T he approach used here develops a post-structuralist reading of complexity which attempts to challenge the under-developed conception of complexity that permeates much legal and political philosophy and the linguistic and narrative constructions which help to reproduce understandings of the political which are insufficiently attuned to the contingencies of social and political complexity.

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equating it with diversity and pluralism. Instead of understanding complexity as part of the ontological condition of politics, contemporary theory labours under the burden of the idea that complexity is something that needs to be reduced or minimized. While I argue that this trend is evident in the work of theorists like Habermas in their pursuit of rational consensus, it is also apparent in the work of agonistic theorists who have challenged the H abermasian paradigm. Indeed, for better or worse, at least H abermas (1996) explicitly grapples with the idea of complexity. Ultimately though, both H abermas and some of his more radical agonistic critics underestimate the impact of complexity for social and political analysis, especially the way in which it undermines the normative approaches which dominate contemporary political theory. Complexity theory highlights many key issues which have a profound bearing on the relationship between law and agonistic politics but in this chapter I would like to focus on four in particular: non-linearity, path dependence, information loops and emergent properties. Firstly, the idea of non-linearity is a staple element of complexity theory (Jervis 1997). Borrowing from the idea that in the real world elements do not interact with each other in the controlled manner which characterizes a laboratory experiment, non-linearity suggests that political, social and legal phenomena do not follow linear pathways. O n the contrary, non-linearity implies that there are always external agents and events that interject into social relationships. Thus public or social policy may be framed to deal with specific issues or problems but these phenomena are not static. Instead, they articulate with other complex phenomena in unpredictable ways. T his means that in framing policy we are never dealing with static issues that will simply respond in linear fashion once a policy is enacted. N on-linearity suggests that external agents will cause subjects to react and behave in ways that have not been previously countenanced and this generates fundamental challenges for normative political models. Following Luhmann, this also creates serious problems for law as law always filters issues into a legal–illegal framework but struggles to relate to the idea that dynamic complex phenomena develop in such a way as to challenge the very basis upon which the distinction between legality and illegality functions (King and T hornhill 2005). T his suggests that the law struggles with non-linearity; law tends to be constructed either retrospectively to deal with the emergence of undesirable social activities or pre-emptively to nip such activities in the bud. Both strategies rely upon a degree of predictability i.e. that the retrospective action is capable of preventing undesirable activities in the future or that the pre-emptive action has a direct impact on the undesired action in such a way as to prevent it. Both of these approaches are lacking a complex dimension. Where retrospective legal initiatives tend not to be attuned to the difficulties of enacting law in a changing climate such that retrospective action is always reacting to an event that has already passed, preemptive action is incapable of comprehending the complexity of the interaction of contemporary phenomena in a way that is sufficiently attuned to the present. C omplexity poses a fundamental challenge to traditional ways of understanding

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legal and political action because it rejects the linearity that characterizes orthodox approaches and invokes the unpredictability of socio-political issues. For postfoundational legal theorists like Luhmann, the law attempts to simplify complexity by establishing criteria of legality and illegality but it is unable to broaden its perspective when existing phenomena change or new issues emerge which challenge the existing framework of deciding what is legal and what is not. T he issue of non-linearity feeds into a complementary but potentially contradictory element of complexity, namely, path dependence (Urry 2003, 54). Path dependence refers to the way in which the parameters of decision-making in the present are often constructed through the trajectories established in the past. Thus, in grappling with contemporary political and legal issues, we often look to the lessons of the past as a means of framing the available options at a given point in time. T his is evident, for example, in British constitutional arrangements whereby common law plays a specific role in the framing of legal parameters and has an established role in guiding the process of interpreting the uncodified constitution (Brazier 1988). W hile, of course, there may be much to learn from issues that have been dealt with in the past, complexity theory suggests that every issue that we come across is unprecedented insofar as these issues are a combination of new complex phenomena which are themselves formed out of the interactions of other complex issues. This chain of events and the information loops that they invoke make legal entities like case law problematic. They suggest that no socio-political issues are directly comparable and therefore that the privileging of case law as a guide to complex issues is inherently questionable. C omplex understandings of path dependence also pose issues for agonistic politics for it suggests that the kind of decisions about who is included or excluded in a discussion of a particular issue is constantly changing and thus that there can be no certainty about who is affected on a particular point or who is a member and who is not. O n different issues, then, the scope of affectedness and membership will vary and there may be considerable political conflict on this point. Thus, agonism need not enshrine the included or excluded beyond any particular case in point which means that the definition of enemies or adversaries will change according to the case in hand. H owever, in practice, it is not uncommon for the kinds of decisions about membership of an agon to reproduce over a number of issues. Put simply, agonsim may not be sufficiently flexible on issues of inclusion and exclusion between different political and legal problems. S imilar problems emerge when we consider the phenomenon of information loops. Feeding off the trajectory of path dependence, the idea of information loops suggests that the decisions made in the present loop back upon and feed off the prior situation which required the decision in the first place (Luhmann 1995). T hus, rather than decisions providing a clean sheet upon which to progress in the future, they often feed back upon and reinforce the agenda that required a decision in the first place. In this sense there isn’t one direction that is established through legal or political action; instead, legal and political decisions can make us regress by shoring up understandings and decisions that have been ingrained

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in the past. For our purposes here, the key point is that the emergence of a more agonistic form of politics (which may be desirable) is not inherently progressive. A gonistic political relations and the laws which emerge from them do not, in themselves, entail an improvement of political–legal structures. T hey may well do so – and we might hope they do – but information loops suggest that agonism might just as easily lead to a reification of existing issues and visions rather their amelioration. In many respects the same criticisms that agonistic theorists level at deliberative democrats concerning their progressive impetus could equally be applied to forms of agonistic democracy. A more inclusive polity is potentially a more divided, conflictual polity. And there is little evidence that such a polity would be less susceptible to the problems of information loops than is the case with contemporary democracies. T he last aspect of complexity that we need to address is the notion of emergent properties (C illiers 1998). T his refers to the idea that the interaction of different political and social phenomena is constantly creating new, unforeseen issues that need to be dealt with. The idea of complexity explains ‘how components of a system through their interaction “spontaneously” develop collective properties or patterns … that do not seem implicit within, or at least not implicit in the same way, within individual components’ (Urry 2003, 24–5). On the other hand, the law – even in an agonistic formation – tends to focus on that which has passed or to guess as to what is needed to act pre-emptively. H owever, the uncertainty of emergent properties throws into question the capacity of law to attend effectively enough with the unpredictable and sometimes chaotic nature of the issues that complexity might generate. Put simply, it is very difficult to attune law to emergent properties because of the dissipative nature of complex interactions. W hile path dependence and information loops suggest that we tend to be constrained by established practices in our strategies to deal with social and political problems, the problems themselves are often unprecedented (characterized by emergent properties) due to the dissipative interaction of internally complex phenomena. T hese observations highlight the problems that complexity theory poses for any static or linear conception of either politics or law. Given the significance of these issues to complex analysis, how has H abermas, a theorist who is fully cognizant of the issue of complexity, dealt with these challenges? The Habermasian Misreading of Complexity A ny analysis of H abermasian theory and the idea of complexity needs to recognize his engagement with systems theory (in particular the work of Luhmann) over a protracted period of time. D espite this engagement however, I want to suggest   McC arthy (1991) notes the role that the engagement between H abermas and systems theory plays in Legitimation Crisis and The Theory of Communicative Action while Bohman (1994) emphasizes its significance in Between Facts and Norms.

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here that, ultimately, H abermas and his analysts articulate a limited understanding of the political ramifications of the idea of complexity. In his later work like Between Facts and Norms complexity is understood as a social phenomenon akin to pluralism (indeed the terms are cross-referenced in the book), while in his earlier writings it is articulated as if its main purpose is as a means of explaining the differentiation between ‘system’ and ‘lifeworld’ (McCarthy 1991). While this is important for H abermasian social theory, it does not exhaust the implications of complexity theory and in particular its impact on modern conceptions of politics. In terms of understanding the politics of complexity, the claims of Bohman and McCarthy that Habermas grants too much ground to complexity in seeking a compromise with systems theory is problematic. In the political terms outlined in the previous section, complexity is not to be conceived in terms of contained social systems (or ‘political’ or ‘administrative’ systems) nor is it meant to merely refer to the problem of managing or administering pluralistic societies. Instead, an approach infused with the insights of post-structuralism recognizes that complexity implies the impossibility of managing pluralistic societies through systemic architecture or institutional design. A post-structuralist understanding of complexity suggests that the meanings which underpin systemic rationalities are inherently unstable and changeable and therefore that the systemic management of pluralism is fragile and prone to failure. H abermas is at pains to suggest that an understanding of complexity is at the heart of his analysis of the relationship between constitutionalism (the rule of law) and democracy (usually invoked through his notion of co-originality). The argument here suggests that this is based upon a partial reading of complexity that confuses it with plurality. While Habermas admits that, like its social contract predecessors, discourse theory utilizes models of the original position (2006, 124), this is for purely theoretical purposes. S uch abstraction is not a part of applying deliberatively justified approaches to constitutional democracy which should instead be considered as ‘a self-correcting historical process’ (Habermas 2006, 115). O ver time then, H abermas has chosen to emphasize the temporal dimension of his thesis and this can be seen as a nod (albeit misguided) in the direction of complexity theory. H owever, a more nuanced complexity approach would recognize that complexity involves not just temporal complexity but also spatial complexity and that these two dimensions are permanently reconstructing each other. If we grasp this complicated interaction between space and time in complex societies, it is problematic to contend that: the allegedly paradoxical relation between democracy and the rule of law resolves itself in the dimension of historical time, provided one conceives the constitution as a project that makes the founding act into an ongoing process of constitution-making that continues across generations. (H abermas 2006, 115)

On the contrary, complexity theory suggests that such a ‘resolution’ is not possible especially if we consider the negotiation of constitutionalism and democracy only

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in the dimension of time and do not attend to its significant interaction with the spatial dimension. A ttention to space shows that the domain in which the paradox is played out is dynamic and shifting rather than the somewhat static model employed by Habermas (especially when he talks in terms of several generations working out the tension between democracy and the rule of law). T he H abermasian perspective is also undermined by its requirement for universal agreement between entitled participants in a deliberative process. If Habermas was prepared to leave his argument at the point that it was a ‘selfcorrecting learning process’ (Habermas 2006, 122) then it might be possible to suggest that he had gone some way to understanding the temporal difficulties of deliberative democracy. H e does not do this though. Instead, that learning process is depicted as one where eventually: all parties recognize that … reforms are achievements, although they were at first sharply contested. In retrospect they agree that, with the inclusion of marginalized and with the empowerment of deprived classes, the hitherto poorly satisfied presuppositions for the legitimacy of existing democratic procedures are better realized. (H abermas 2006, 122, emphasis added)

However, a complex society is one that reflects the changing nature of the citizen body through, for example, immigration, refugees, asylum seekers, young people reaching the requisite age for full participatory citizenship, shifting attitudes between generations in different cultural groups and so forth as well as the potential shifting of political boundaries. In such a fluid scenario it is difficult if not impossible to imagine a situation in which there is free agreement between participants so that we generate ‘outcomes that meet with the justified consent of all under conditions of rational discourse’ (Habermas 2006, 120). Even if such an agreement were possible at a specific point in time which is highly unlikely, the citizen body would change almost simultaneously with the point of decision. Unless we wish to argue for a constant process of reconfiguring laws to match the shifting parameters of the state, then we need to recognize that the law and the decisions which help to comprise it never harness the degrees of support that H abermas requires and never will in a complex society. Even if H abermas was only using this argument as a hypothetical mode of clarification, it is still insufficiently attuned to the demands of complexity. S cheuerman goes so far as to suggest that for the H abermas of Between Facts and Norms ‘radical democracy has to come to grips with the exigencies of social complexity. Failure to do so can prove disastrous, as demonstrated by S oviet-style state socialism’ (Scheuerman 1999, 154). On the contrary, the failure to come to grips with social complexity is manifest in the organization of contemporary liberal democracies and the exclusions and displacements they embody. A s S cheuerman (1999, 156) later makes clear however, what Habermas provides in his later work is not a radical conception of democracy but ‘a defensive model of deliberative democracy in which democratic institutions exercise at best an attenuated check

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on market and administrative processes’. The main problem with the Habermasian understanding of complexity is its tendency to cordon off formal political processes from the non-linear, dissipative interactions of civil society. Thus ‘Habermas tends to wax enthusiastic about what he describes as the refreshingly “chaotic” and even “anarchic” nature of deliberation in civil society’ (Scheuerman 1999, 156). This demonstrates that, while H abermas is alive to the chaotic aspect of complexity, he does not address the issues which make it a more fundamental problem rather than it being simply complicated and chaotic. C omplexity involves elements of orderliness and disorderliness – it therefore amounts to more than mere chaos as well as having broader implications than systems theory (H arrison and S inger 2006). Habermas believes that civil society can act as a filter which polices the kinds of arguments which proceed to formal political discussion. In so doing he disallows a genuinely complex notion of politics. A complexity-informed argument would realize how complexity undermines formal liberal democratic institutions as well as animates civil society. T he H abermasian approach wants to accommodate plurality, of course, but that is not the same as complexity. Instead, he wants to confine complexity to civil society thereby allowing a political system which is less susceptible to the vagaries of non-linearity, dissipative structures and emergent properties. But like Luhmann’s analysis of the legal–illegal decision within the paradigm of a given system, we need to comprehend the way in which complex phenomena do not necessarily exist statically in a form in which they can be filtered through to the political domain (as in Habermasian analysis) thereby enabling judgement according to established criteria. T he major issue here for H abermas and many of his critics is a misreading of the full ramifications of complexity. Both Habermas and relatively supportive critics like Bohman confuse complexity with plurality. While complexity is undoubtedly plural, it simultaneously unsettles the certainties of pluralism; it challenges the categorization of certain views to specific groups and unsettles theories like pluralism which seek to establish identity-based claims in groups. Thus, social complexity is conceived in terms of a multiplicity of individuals and social groups with different social values and potentially competing ethical stances on political issues. C ertainly, pluralism is an important feature of complex societies and the demands of reconciling a plurality of viewpoints is a major challenge for democratic theory today (C onnolly 2005a). But, as noted above, sophisticated theories of complexity go much further than mere descriptive accounts of plurality or the demands of managing competing ethical frameworks when democratic societies call for decisions. C omplexity undermines the ethical certainty which underpins the prescription of certain values to individuals or social groups. By focusing on the fluid, dynamic nature of political ideas it rejects the view that dealing with plurality is a mere question of management. Instead, it emphasises the undecidable nature of political phenomena (A gamben 2005, T homassen 2006) and the transient, changeable nature of the very things that are to be managed. In such a fluid and dynamic view of society, democracy and law are permanently trying to catch up with the variegated interaction of internally complex phenomena

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in order to be as effective as possible and to deliver on the promises on which the value of democracy and law are established. T homassen argues that the co-originality thesis of H abermas is problematic because of the undecidable nature of the relationship between constitutionalism and democracy. For H abermas, the circularity that emanates from the relationship from co-originality is a positive but T homassen contends that it is a vicious circularity. N ot only is this a problem at the beginning of the circle, as some H abermasians may recognize, but it emerges at any time ‘whenever the legitimacy of the law is at stake’. Thus, the: chain of reasoning about the democraticness of the constitution (and the constitutionalism of democracy) cannot be closed with reference to an original constitutional text, because the latter is open to an infinite number of different interpretations irreducible to any essential core of the constitutional text. (2006, 180)

This is what he terms (following Michelman) the problem of infinite regress. For H abermas, the process of interpreting and applying the law and the political issues which that process generates and emanates from, is a stabilizing process that shores up the relationship between constitutionalism and democracy. T his, then, provides a performative dimension to constitutional democracy as well as the constative phenomenon that co-originality implies. H owever, it neglects the dangers of information loops and the risk that the shoring up of constitutional democracy on its own terms draws attention away from the new, emerging paradigms of contemporary politics. For H abermas, his theory suggests a dynamic concern with the future but Thomassen argues that the Habermasian perspective reflects an orientation to the future that is firmly grounded in the present: in Derridean terms, ‘future present’ rather than ‘future yet to come’. By grounding our view of the future in the structures of the present, we potentially exclude the viability of other considerations of the possible. C onstitutionalism is a part of that exclusionary process and thus the understanding of democracy in terms of ‘future present’ is pre-constituting its condition and structures. The relationship between constitutionalism and democracy is marked by a simultaneous lack and lag, both of which undermine the co-presence of constitutionalism and democracy. It is marked by a lack insofar as one is never fully present for the other, insofar as they differ through the constitutive gap between them; and it is marked by a lag insofar as their co-presence is always deferred, thus making constitutional democracy constitutively out of joint. (T homassen 2006, 186)

Importantly, for T homassen, this is a gap which cannot be closed – instead it is constitutive of constitutional democracy. T hus, the relationship between constitutionalism and democracy is undecidable – we might also say, from a complexity perspective, that constitutionalism and democracy are themselves

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undecidable in which case it is impossible to imagine their relationship to be as firmly located as Habermasians would like us believe. Habermas requires a fiction of a teleological process of reconciliation between constitutionalism and democracy which is extremely difficult to ground empirically. But this also contributes to the reason why T homassen is critical of agonistic critics of Habermas (like Honig). While Thomassen concurs with much of Honig’s analysis of Habermas, he rejects the view that what matters is some kind of balance between democracy and constitutionalism. Instead, the inherently undecidable nature of this relation means that any kind of compromise that is reached between constitutionalism and democracy is inherently flawed and suffers from the same lack and lag which characterise the Habermasian depiction. Rather than seeking to reconcile constitutionalism and democracy as both Habermas and H onig do in their different ways, T homassen contends that it is better to recognize the constitutive gap between them: a gap which precludes reconciliation. A gonistic democrats like Mouffe (2000) recognize this gap but do not account strongly enough for the inevitable failure of democratic politics that this entails. Indeed, the strategic imperative of genuinely understanding constitutional democracy demands that the gap be kept at the forefront of our minds rather than suturing it. It is only by remembering the gap that we can understand the constitutive parts of the equation. O nce constitutionalism and democracy become co-terminous, it becomes difficult to construct an account which is sufficiently attuned to the complex conditions in which constitutional democracies operate. Moreover, it is the conflictual relationship of constitutionalism and democracy which gives rise to the constitutive failure of democracy that is identified in theories which combine the insights of complexity and post-structuralism (Little 2008). If constitutionalism and democracy are co-original then, in complex analysis, a fluid and tense relationship is generated that cannot be rectified in democratic theory or practice. C ontrary to H abermasian assertions and the argument constructed by Bohman (1994), Habermas does not provide a sufficiently complex model of radical democratic politics. H ere I concur with H onig that he is too reliant on constitutionalism and the rule of law and less cognizant of the amount of disagreement and dispute that is part and parcel of complex democratic politics. Unlike the claims of Bohman then, the problem is not that Habermas has been drawn too far into the logic of systems theory and the complexity it invokes, but that he has not been seduced far enough for he is unable to see how complexity theory precludes the kind of reconciliation of constitutionalism and democracy that he promotes. Systems theorists like Luhmann posit the attempt to simplify complex matters through legal definition (legal/illegal) but also recognize the difficulties in doing so when complex contingencies are taken into account. Habermas, on the contrary, pays insufficient attention to the spatial as well as temporal conceptions of complexity and underplays the shifting constitution of complex societies in presuming the metaphorical capacity of universal agreement. If H abermas fails to answer these questions however, it begs the question of whether others within the

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radical democratic perspective have been more attuned to the full implications of complexity theory for democracy. Can Politics Arrest Complexity? T he argument thus far suggests that H abermasian approaches to politics and law attempt to override the ontological characteristic of complexity that is a feature of contemporary W estern societies. T he question for theorists attempting to construct agonistic perspectives that are more receptive to complexity is whether it is possible to build political models that supersede the condition of complexity. C learly the approach identified here suggests that complexity is an indefinable but ontological feature of contemporary societies such that political theory needs to take account of its specific demands and contradictions. Quite simply, even if complexity is an irreducible element of contemporary politics, can models – particularly democratic ones – be constructed that negate the contingency and uncertainty that underpin theories of complexity? O ne alternative approach might be to regard agonism as a praxis philosophy whereby institutional arrangements are less important than the establishment of strategic conditions for social transformation. But, even here, complexity theory disrupts the notion of strategic conditions for social transformation insofar as, even if these could be established, they would be dynamic and affected by other entities in unpredictable ways. A gonistic politics and the theory of law they invoke must be careful not to replace the imagined consensus of liberal democracy with an alternative reified reading of society that is unable to accommodate the fluid, dynamic nature of social phenomena. C ertainly theorists such as H onig imply that part of the problem of the H abermasian attempt to reconcile the tensions between constitutionalism and democracy is to lean less towards the rule of law and to take fuller account of the conditions of democracy with its propensity for disagreement and dispute. W hile this might be construed as a step in the direction of complexity, it is one that leaves the terms of the debate intact. Indeed, Honig’s argument is premised upon changing the balance of Habermasian argument to make it more cognizant of the demands of democracy rather than conceiving an inherent gap between the principles of the rule of law and those of democracy as potentially disrupting the rule of law in certain conditions. Practically, she may be right to say that we should think of ‘a constitutional/democracy spectrum rather than in terms of an abstract binary’ (Honig 2006, 170) but the crucial point is that even on such a spectrum, the terms are undecidable. T hus, even if we were capable of developing a more democratic position than that of H abermas (and this may well be possible), that does not mean that we are closer to a reconciliation of constitutionalism and democracy because of the undecidability of the two terms. In D erridean terms, the spectre of older modes of thought and practice always hovers over the present and the future such that agonistic models of democracy are fragile and at risk of degenerating into more aggressive and oppositional politics.

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There is also a risk that agonistic theory reproduces the tensions that characterize liberal democratic models. W e have already noted how the actors involved in adversarial interaction are not set in stone. T hus, the nature of the included populace changes through, for example, people becoming old enough to participate and others such as immigrants becoming part of the polity. S imilarly, over time those who we think of as adversaries may change; indeed, on certain issues people may be seen as adversaries whereas they may be enemies on others. S o, from a complexity perspective, it is important to remember that a model of agonistic democracy cannot be constructed that resolves the dilemmas of liberal democracy. A s political actors and their beliefs develop, they may be more or less likely to be part of the agon. New interlocutors may become part of the polity and older ones may be excluded as their ideas move beyond the established parameters of political debate. From this perspective, a more inclusive agon is inherently possible but it will still exclude some potential participants and therefore this exclusion of a remainder will always contain the seeds of unsettling the established institutional architecture. These insights from complexity theory have profound ramifications for theories of democracy which seek to radicalize the liberal democratic order. Some of the most influential theorists in radical democratic theory such as Brown, Butler and Connolly underestimate this specific aspect of democratic theory. W here a perspective informed by complexity theory and infused by the insights of post-structuralism recognizes the difficulty of constructing a social entity that can encapsulate everyone in a given polity, some of the main proponents of what can be regarded as agonistic theories tend to present democracy as something which has been hijacked by liberal democrats. For the latter group democracy needs to be rescued from its bastardization by neo-liberals and conservatives and reconstructed along more inclusive egalitarian lines. Post-structuralists, on the other hand, suggest that, while it may be possible to be more inclusive, inclusivity still relies upon insider groups defining the Other as that which they are not. Thus, even a more inclusive polity relies upon exclusion and the construction of the agon in such a way as to create an inevitable remainder. From a complexity perspective, agonism is unable to override the perpetually shifting and dynamic nature of contemporary politics. T here is never closure around the boundaries of a political space, the definition of appropriate political actors, or the kinds of views which these actors may articulate. While the notion of the agon is extremely useful in thinking about the exclusionary tendencies of liberal democracy, complexity suggests that the agon is an inherently fluid space which will inevitably be characterized by the shifting sands of changing membership, contested boundaries of political interaction and institutions, and evolving political arguments from the included political actors. O n this account, the idea of politics

 ������������������������������������������������������������������������������ S ee Brown (2005, 2006), Butler (2002), C onnolly (2005b) and Little (2008) for further commentary.

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apprehending complexity to build a simpler institutional framework or develop a more inclusive set of parameters is inherently problematic. A gonism has more potential to embrace the insights of complexity theory than most perspectives in contemporary political theory. In highlighting the contested nature of political subjects as well as the institutional parameters within which they are debated, agonism seems more open to the social and political phenomena which complexity articulates. Clearly, the acceptance of political conflict as fundamental to agonistic thought is a significant advance on theories that seek to close down or displace the contentious elements of modern politics because ‘attempts to shut down the agon perpetually fail’ (Honig 1993, 15). However, my contention here has been that the ontological condition of social complexity, taken together with the insights of scientific approaches to complex phenomena, makes the relationship between democracy and law fundamentally unstable. Indeed, in post-structuralist terms, the undecidability of the key terms of the debate means that democracy is inherently constituted by the failure to reconcile its competing elements (Little 2008). This ‘constitutive failure’ of democracy ensures that agonistic democracy remains locked into a Gordian Knot whereby the terms of reference of the debate (the relationship between law and politics) preclude its resolution. Agonistic politics may help us to make sense of the challenges of complexity in democratic societies but it cannot provide a pathway beyond them. Acknowledgement Thanks to Michael Crozier and Andrew Schaap for their comments on an earlier draft of this chapter. Bibliography A gamben, G . (2005), State of Exception (C hicago, IL: University of C hicago Press). Bang, H.P. and Esmark, A. (eds) (2007), New Publics With/out Democracy (C openhagen: S amfundlitteratur/N ordicom). Beck, U. (1992), Risk Society (London: S age). Bohman, J. (1994), ‘Complexity, Pluralism, and the Constitutional State: On Habermas’s Faktizität und Geltung’, Law and Society Review, 28(4), 897– 930. Brazier, R . (1988), Constitutional Practice (O xford: C larendon). Brown, W . (2005), Edgework: Critical Essays on Knowledge and Politics (Princeton, NJ: Princeton University Press). Brown, W. (2006), ‘American Nightmare: Neoliberalism, Neoconservatism, and De-Democratization’, Political Theory 34(6), 690–714.

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Butler, J. (2002), ‘Explanation and Exoneration, or What We Can Hear’, Social Text 20(3), 177–88. Byrne, D . (1998), Complexity Theory and the Social Sciences (London: R outledge). Castells, M. (2000), ‘Materials for an Explanatory Theory of the Network Society’, British Journal of Sociology 51, 5–24. C illiers, P. (1998), Complexity and Postmodernism: Understanding Complex Systems (London: R outledge). C onnolly, W . (2005a), Pluralism (Durham: Duke University Press). Connolly, W. (2005b), ‘The Evangelical-Capitalist Resonance Machine’, Political Theory, 33(6), 869–86�. Habermas, J. (1996), Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (C ambridge: Polity Press). Habermas, J. (2006), ‘Constitutional Democracy – A Paradoxical Union of Contradictory Principles?’ in Times of Transition (C ambridge: Polity Press). H arrison, N . (ed.) (2006), Complexity in World Politics (A lbany, N Y: S UN Y Press). Harrison, N. and J.D. Singer (2006), ‘Complexity is More than Systems Theory’ in N . H arrison (ed.) Complexity in World Politics (A lbany, N Y: S UN Y Press). H onig, B. (1993), Political Theory and the Displacement of Politics (Ithaca, N Y: C ornell University Press). Honig, B. (2006), ‘Dead Rights, Live Futures: On Habermas’s Attempt to Reconcile Constitutionalism and Democracy’ in L. Thomassen (ed.) The Derrida-Habermas Reader (C hicago, IL: University of C hicago Press). Jervis, R. (1997), Systems Effects (Princeton, IL: Princeton University Press). King, M. and C . T hornhill (2005), Niklas Luhmann’s Theory of Politics and Law (London: Palgrave). Law, J. and A. Mol (eds) (2002), Complexities: Social Studies of Knowledge Practices (London: Duke University Press). Little, A. (2007), ‘Between Disagreement and Consensus: Unravelling the Democratic Paradox’, Australian Journal of Political Science 42(1), 143–60. Little, A . (2008), Democratic Piety: Complexity, Conflict and Violence (Edinburgh: Edinburgh University Press). Luhmann, N . (1995), Social Systems (S tanford, CA : S tanford University Press). McCarthy, T. (1991), ‘Complexity and Democracy: The Seducements of Systems Theory’ in Ideals and Illusions: On Reconstruction and Deconstruction in Contemporary Critical Theory (C ambridge, MA : MIT Press). Melucci, A . (1996), Challenging Codes: Collective Action in the Information Age (C ambridge: C ambridge University Press). Mouffe, C . (2000), The Democratic Paradox (London: Verso). R ichards, D . (ed.) (2000), Political Complexity: Nonlinear Models of Politics (A nn A rbor, MI: University of Michigan Press).

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Scheuerman, W.E. (1999), ‘Between Radicalism and Resignation: Democratic Theory in Habermas’s Between Facts and Norms’ in P. Dews (ed.) Habermas: A Critical Reader (Oxford: Blackwell). Thomassen, L. (2006), ‘“A Bizarre, Even Opaque Practice”: Habermas on Constitutionalism and Democracy’ in L. Thomassen (ed.) The DerridaHabermas Reader (C hicago, IL: University of C hicago Press). Thrift, N. (1999), ‘The Place of Complexity’, Theory Culture and Society, 16(3), 31–69. Urry, J. (2003), Global Complexity (C ambridge: Polity Press). Wagenaar, H. (2007), ‘Governance, Complexity and Democratic Participation: How Citizens and Public Officials Harness the Complexities of Neighborhood Decline’, The American Review of Public Administration 37(1), 17–50.

C hapter 13

T he A bsurd Proposition of A boriginal S overeignty A ndrew S chaap

In Australia in the 1990s, ‘reconciliation’ emerged as an organizing discourse for political debate and policy-making in relation to Aboriginal affairs and the unfinished business of decolonisation. Unlike in countries such as Chile and South Africa, however, reconciliation was not pursued in the wake of a new constitutional settlement. R ather, reconciliation was proposed as an alternative to a treaty (between indigenous people and the state), which had been pursued by A boriginal activists (at least) since the 1970s. C onservative and Labour governments entertained the proposition of a treaty or ‘Makarrata’ in the 1980s. By the 1990s, however, the claim to A boriginal sovereignty, which underwrote the demand to negotiate a treaty, was deemed unreasonable by both major political parties. D uring the debate about a treaty in 1988, John Howard (Australian prime minister, 1996– 2007) declared: ‘It is an absurd proposition that a nation should make a treaty with some if its own citizens. It also denies the fact that A boriginal people have full citizenship rights now’ (Howard 1988, 6). In this chapter, I take Howard’s notion of an ‘absurd proposition’ seriously as a characterization of the ‘agonic relation of colonial governance vis-à-vis indigenous resistance’ in Australia (Tully 2000, 13). In particular, I unpack the sense in which the clam to Aboriginal sovereignty might be characterized as an absurd proposition in terms of Lyotard’s conception of the differend and Jacques Rancière’s conception of disagreement. For both Lyotard and R anciere, politics is agonistic since it involves the struggle to delimit the speech situation in which a political claim can be raised. Politics is struggle within and over the discursive conditions in which a claim appears as reasonable or absurd. R ather than presupposing a speech situation in which parties implicitly agree on the criteria of validity in terms of which each other’s claims might be redeemed, for both Lyotard and Rancière political conflict paradigmatically arises in the context of a speech situation originated by a wrong. As such, there is an absence of shared procedures in terms of which the conflict might be regulated. The agon concerns the possibility of making visible the wrong on which the speech situation is predicated. H owever, there are important differences between the agonism of Lyotard and Rancière (see Jenkins in this volume). Lyotard characterizes political agonism in terms of the problematic of the differend between incommensurable genres of discourse. A case of the differend occurs when a conflict between two parties is

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regulated by the idiom of one party while the wrong suffered by the other party cannot be signified in that idiom. A wrong consists not only in the fact that a party is harmed but that the injured party is divested of the means to make visible this injury as an injustice. For R ancière, in contrast, the condition of possibility for the agon is a situation of misunderstanding in which one party cannot understand the other because he does not recognise her as a speaking being. Lacking the power of speech (logos), the other is supposed to have only voice (phôné) in which pain and pleasure might be expressed but claims about justice cannot be articulated. Political agonism arises when those who are supposed to have only voice act as if they have speech. In doing so, they demonstrate (i.e. make visible and audible) what was previously unseen and unheard: both the wrong of the social order and their appearance as political subjects. I will suggest that from a legal perspective, the appearance of the claim to A boriginal sovereignty as an absurd proposition does indeed appear as a case of the differend. This was exemplified in the High Court’s response to an indigenous woman that it ‘will not hear’ her protest that if Aboriginal people cannot get justice in the highest court of the country then that court must be a party to the genocide. And yet, the establishment of an ‘Aboriginal embassy’ in front of Parliament House in Canberra in 1972 testifies to the ongoing possibility that the wrong of colonization might be redressed politically. ‘It Started off as a Joke’ (Paul Coe) In characterizing the idea of a treaty as an absurd proposition, H oward seems to suggest that it is both unreasonable and illogical, ‘plainly opposed to reason, and hence, ridiculous silly’ (OED). As an unreasonable proposal, the proposition of A boriginal sovereignty would be an attempt to justify a particular claim by appealing to principles that are not shared by the co-members of society to whom the claim is addressed. In Rawls’s terms, in staking political claims within a plural society one can legitimately appeal only to reasons that all members of that society might reasonably accept. For H oward and most A ustralians, it is unreasonable for Aborigines to expect anything other than the same share of the benefits of social co-operation that all citizens are entitled to. W hile they have a valid claim to adequate health, welfare and preservation of their culture, it is unreasonable for A borigines to expect differential treatment based on a claim to special status as the traditional owners of the land. Following from this presumption of co-citizenship, as an illogical assertion the proposition of A boriginal sovereignty would be a conclusion based on contradictory reasoning. Howard’s characterization of the illogic of Aboriginal sovereignty would go something like this: Treaties are made between two sovereign peoples. But A borigines are already A ustralian citizens and hence co-members of the one sovereign people of Australia. In seeking a treaty with the A ustralian state, therefore, A borigines (absurdly) come to treat with themselves.

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Yet, we might also understand the absurd proposition of A boriginal sovereignty in a further sense that was unintended by H oward. W hile we usually understand the word proposition to refer to an act of speech (assertion or proposal) there is also an older, less common sense of the word which means ‘the action of setting forth or presenting something to view or perception; presentation, exhibition, display’ (OED). As a ridiculous presentation, the absurd proposition of Aboriginal sovereignty would be a display of sovereignty that at the same time testifies to its lack. Such a proposition might be absurd either in seeming silly (a demonstration of what one does not have) or in being a form of ridicule. Indeed, the establishment of an A boriginal Embassy on the lawns of Parliament House by four men carrying a beach umbrella on 26 January 1972 might be understood to exemplify an absurd proposition in the sense of a ridiculous presentation. Although these four men risked appearing silly, they initiated the most symbolically powerful political demonstration in Australia’s history. In parodying the sovereignty of the A ustralian state, the tent embassy became a serious political threat to the government of the day, a ‘diplomatic coup’ according to a journalist for the New York Times (Trumbull 1972). Within the hegemonic discourse of the settler society, the proposition of A boriginal sovereignty could only amount to an unreasonable proposal or illogical assertion (a case of the differend). A s a ridiculous presentation, however, it has the potential to contest the political unity in terms of which social relations between settler and indigenous societies are represented (the staging of a disagreement) (cf. Feltham 2004). It was an irony lost on H oward in 1988, when he described a treaty as an absurd proposition, that the founding of the Aboriginal tent embassy ‘started off as a joke’ (Paul Coe cited in Waterford 1992, 1). As one historian observes: ‘the encampment was an Aboriginal twist on the larrikin sense of humour which throws rough-hewn insolence in the direction of Australian authority. As Dr Roberta Sykes reflected, “it was only a wag’s act to put it up anyway, in the beginning”’ (Robinson 1994, 51). T he tent embassy was initiated as a protest against the refusal of the conservative McMahon government to grant land rights to A boriginal people. In the early 1970s there was an increasing militancy on the part of a younger generation of Aboriginal activists who, taking inspiration from the Black Power movement in A merica, demanded land rights for indigenous people (see Foley 2001). T his new militancy was apparent when Paul C oe addressed a predominantly white antiVietnam protest in 1971, criticizing the demonstrators for being prepared to march for oppressed peoples all over the world, except those in Australia: ‘You raped our women, you stole our land, you massacred our ancestors, you destroyed our culture, and now – when we refused to die out as you expected – you want to kill us with your hypocrisy’ (Coe quoted in Goodall 1996, 267). On 25 January, the day before Australia Day, Prime Minister McMahon made his first major policy statement on Aboriginal affairs. The statement followed a recent ruling by the S upreme C ourt in the N orthern T erritory (Milirrpum v Nabalco Pty Ltd 1971), which upheld the doctrine of terra nullius, finding that Aboriginal people had no claim to native title in A ustralian law. A greeing with the spirit of the

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judgment, McMahon (1972, 12–13) outlined an assimilatory policy, according to which Aborigines should be assisted ‘to hold effective and respected places within one Australian society’ with equal rights and responsibilities as non-indigenous Australians. ‘The concept of separate development’, he insisted, ‘is utterly alien to these objectives’. Far from acknowledging Aboriginal land rights, McMahon promised only to make available ‘general purpose leases’ to some Aboriginal groups on condition that they made ‘reasonable economic and social use of the land’. Companies were to be allowed to continue mining any Aboriginal land without consent of its occupiers since this was taken to be in the national interest. To the Redfern-based Aboriginal activists, the timing of the prime minister’s statement (for A ustralia D ay, which is mourned by indigenous people as Invasion Day) was ‘a very provocative move’, which demanded a quick response (Foley 2001, 14). W ith the loan of a car and $70 from a local branch of the C ommunist Party, four young men (Michael A nderson, Bertie W illiams, Billie C raigie and G ary W illiams) left S ydney late that night, arriving in the early hours of the morning to plant a beach umbrella on the lawns in front of Parliament H ouse. Erecting a sign saying ‘Aboriginal Embassy’, they declared that since McMahon’s policies confirmed that Aboriginal people were aliens in their own land they needed an embassy to represent them in Canberra like people from other countries do (Foley 2001, 15). The tent embassy quickly captured the imagination of the Australian public and eventually also the international media (e.g. T rumbull 1972). A s days and then weeks went by, tents were erected in place of the umbrella and other Aboriginal people began to arrive to staff the embassy. The recently designed Aboriginal flag was flown, an office tent was established and a letter box was installed, which began receiving international mail. In addition to large numbers of tourists, visitors to the embassy included S oviet diplomats, a representative from the C anadian Indian C laims C ommission, an IRA cadre, and opposition leader G ough Whitlam (Robinson 1994, 54; Foley 2001, 16). A five-point plan for land rights was formalized by the tent ambassadors, which called for A boriginal control of the N orthern T erritory, legal title and mining rights on all existing reserves and settlements, preservation of sacred sites and compensation for alienated land in the form of a lump sum payment of six billion dollars and a percentage of the gross national product (N ewfong 1972). T he tent ambassadors did not initially assert A boriginal sovereignty. Isobell Coe (2000), who participated in the original protest, reflects that: it took a while for us to understand the difference between land rights and sovereignty. Sovereignty means, you know, you own the land, it’s your birthright, and that traditional owners have a connection to that country that goes back to the beginning of time.

H owever, the symbolism of the tent embassy was not lost on the G overnment. Peter H owson, Minister for Environment, A borigines and the A rts, said that the term embassy had a ‘disturbing undertone’ since it ‘implied a sovereign state

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and cut across the Government’s expressed objection to separate development’ (W aterford 1992, C 1). ‘No, We will Not Hear that Sort of Thing’ (Gummow J) ‘It is in the nature of a victim’, writes Lyotard (1988, 8), ‘not to be able to prove that one has been done a wrong. A plaintiff is someone who has incurred damages and who disposes of the means to prove it. O ne becomes a victim if one loses these means.’ While a plaintiff is the subject of a litigation, a victim is the subject of a differend. Both plaintiff and victim have suffered damage. H owever, the plaintiff is able to seek redress for this damage by appealing to a tribunal to arbitrate. In litigation one appeals to commonly held norms to represent one’s particular experience of suffering as an injustice. In the case of a differend, however, the original injury suffered by the victim is accompanied by ‘the impossibility of bringing it to the knowledge of others’ (Lyotard 1988, 5). In settler colonies, such as A ustralia, indigenous people become the subject of a differend by virtue of the fact of internal colonization. W hile indigenous people experience colonisation as invasion, the colonizing society understands its occupation of their land as settlement. As James Tully (2000, 39) explains, with internal colonization the land, resources and jurisdiction of indigenous people are appropriated not only for the sake of exploitation but for the ‘territorial foundation of the dominant society itself’. Liberation from external colonization is possible by overthrowing the occupying imperial power. H owever, such a strategy of direct confrontation is ineffective in the context of internal colonization in which ‘the dominant society coexists on and exercises exclusive jurisdiction over the territories and jurisdictions that the indigenous peoples refuse to surrender’. As such, both colonizers and colonized view the system of internal colonisation as a temporary means to an end. Indigenous people would resolve this irresolution by ‘regaining their freedom as self-governing peoples’. In contrast, the settler society would resolve the irresolution by the ‘complete disappearance of the indigenous problem, that is, the disappearance of indigenous people as free peoples with the right to their territories and governments’ (Tully 2000, 40). Tully distinguishes between two kinds of strategies by which settler societies typically seek to resolve the contradiction of internal colonization: those that seek to extinguish indigenous rights (such as the presumption of C rown sovereignty and the doctrine of terra nullius) and those that seek to incorporate indigenous people as members of the dominant society (assimilation and reconciliation). S trategies of extinguishment and strategies of incorporation are both ways in which indigenous people are deprived of the means to prove the damages they have incurred. O ne loses these means, writes Lyotard (1998, 8), ‘if the author of the damages turns out precisely to be one’s judge’. In 1979, Paul Coe brought the tent embassy’s nascent political claim to Aboriginal sovereignty before the H igh C ourt of A ustralia (Coe v Commonwealth 1979).

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A mong other things, C oe claimed that the proclamations of the representatives of the British Crown to sovereignty over the Australian continent were ‘contrary to the rights, privileges, interests, claims and entitlements of the aboriginal people’ (121). They ‘wrongfully treated the continent now known as Australia as terra nullius whereas it was occupied by the sovereign Aboriginal nation’ (122). In the leading judgment, Gibbs J found Coe’s claim to be ‘repetitious, confused and obscure and in some respects inconsistent with itself’, containing ‘allegations and claims that were quite absurd’ (127). The fundamental principle on which the claim to sovereignty was rejected was that the annexation of the A ustralian continent took place through ‘acts of state whose validity cannot be challenged’ (128). Moreover, given that the A boriginal people of A ustralia were not organized as a ‘distinct political society separated by others’ the contention that there is a sovereign Aboriginal nation, even of a limited kind, was ‘quite impossible in law to maintain’. Finally it was stated that it was ‘fundamental to our legal system that the A ustralian colonies became British possessions by settlement and not by conquest’ (129). In 1992, the Mabo judgment of the H igh C ourt was supposed to constitute a fundamental break with the colonial past by jettisoning the fiction of terra nullius from A ustralian common law and recognizing native title. A s has been widely observed, however, continuity remains in the fundamental presumption of sovereignty of the A ustralian state by the court (W olfe 1994; Motha 2002; 2005). The judgment retrospectively recognizes that ‘native title’ was not extinguished by the settlement of A ustralia and continues to exist where it has not been extinguished by the establishment of freehold property granted by the state or by the ‘tide of history’ (i.e. colonization) through which Aboriginal people have lost their traditional connection with the land. Yet it is precisely the legitimacy of the Australian state’s claim to jurisdiction that is at stake in the conflict between indigenous people and the settler society. C onsequently, when brought before the formal process of a legal tribunal, the proposition of A boriginal sovereignty becomes an instance of an ‘objection that cannot be heard’ (Christodoulidis 2004). Regardless of whether the Australian state seeks the legitimacy of its claim to sovereignty in the doctrine of terra nullius or (since 1992) in the retrospective recognition of native title, the acquisition of sovereignty is an act of state that is not judiciable in a municipal court (Brennan J cited in Motha 2002, 318). As Kerruish and Purdy (1998, 152) put it, in legal thought ‘the Australian nation’s existence is unquestionable and this unquestionability finds expression in terms of sovereignty.’ A ccording to Lyotard the perfect crime would consist: in obtaining the silence of the witnesses, the deafness of the judges, and the inconsistency (insanity) of the testimony. You neutralise the addressor, the addressee, and the sense of the testimony; then everything is as if there were no referent (no damages). If there is nobody to adduce the proof, nobody to admit it, and if the argument that upholds it

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is judged to be absurd, then the plaintiff is dismissed, the wrong he or she complains of cannot be attested. H e or she becomes a victim. (Lyotard 1998, 8 – emphasis added)

For Lyotard (1988, 14), every phrase presents a universe that is constituted by an addressee (that to which something is signified to be the case), a referent (what it is about, the case), a sense (what is signified to be the case) and the addressor (that ‘through’ which or in the name of which something is signified to be the case). In the case of the absurd proposition of A boriginal sovereignty: the addressee would be the invaders; the referent, the ‘fact’ of Aboriginal sovereignty; the sense, that sovereignty was unjustly violated by the colonizing society; and the addressor, the sovereign A boriginal people. ‘In the differend, something ‘asks’ to be put into phrases, and suffers form the wrong of not being able to be put into phrases right away’ (Lyotard 1988, 13). The positive phrase is replaced by a silence, which constitutes a negative phrase. T he referent, the addressor, the addressee and the sense are negated (Lyotard 1988, 14). Each of these negations is apparent in Gibbs’s judgment: Negation of the addressee: The situation in question is not the addressee’s business (he lacks the competence). ‘The annexation of the east coast of Australia by Captain Cook in 1770, and the subsequent acts by which the whole of the Australian continent became part of the dominions of the C rown, were acts of state whose validity cannot be challenged’ (128) Jacobs J adds: ‘These are not matters of municipal law’ (132). Negation of the referent: This case does not exist. It never took place. ‘It is quite fundamental to our legal system that A ustralian colonies became British possessions by settlement and not by conquest’ (129). Negation of the sense: This case does cannot be signified. The situation is senseless, inexpressible. The claim to Aboriginal sovereignty ‘is quite impossible in law to maintain’ (129) Jacobs J adds: These matters ‘are not cognizable in a court exercising jurisdiction under that sovereignty which is sought to be challenged’ (132). Negation of the addressor: T his case does not fall within your competence. It is not the survivors business to be talking about it. ‘There is no aboriginal nation, if by that expression is meant a people organised as a separate state or exercising any degree of sovereignty’ (131).

In Tully’s terms, pre-Mabo legal reasoning can be read as a strategy of extinguishment. Yet, in his dissenting judgment, Murphy J insisted that ‘the claim to rights over land or compensation for loss of such rights is capable of being formulated and presented in an intelligible way’ (137). Indeed, the claim to native title was found to be intelligible in A ustralian common law in 1992. H owever, this newly discovered intelligibility did not amount to recognition of the wrong of the differend. R ather, it constituted a change in strategy, from extinguishment

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(although it would enable more of that also) to incorporation, according to which the differend would be buried in litigation. Law presupposes its own capacity to justly arbitrate conflicting claims within society. A s such, it recognizes only plaintiffs who can be successful or unsuccessful in bringing their claims before its tribunal. A victim cannot be recognized in law since law is founded on the presupposition that all claims can be adequately represented in terms of public reasoning that is formalized in legal practice. ‘A case of the differend between two parties takes place’, however, ‘when the ‘regulation’ of the conflict that opposes them is done in the idiom of one of the parties while the wrong suffered by the other is not signified in that idiom’ (Lyotard 1988, 8). As such, the differend is ‘not a matter for litigation’ but rather signals the ‘inability to prove’ (Lyotard 1988, 10). One can find oneself in the role of plaintiff and yet be a victim. Indeed, the differend is characteristically ‘buried in litigation’ (Lyotard 1998, 13). A s such, the wrong to which one attempts to testify is treated simply as a damage that could be proved or disproved. Either way, one’s testimony to have suffered a wrong is found to be false. Lyotard describes this double bind in the following way. Either: (a)  the damages you complain about never took place and your testimony is false, or (b)  the damages took place but since you are able to testify to them, it is not a wrong that has been done to you but merely a damage and your testimony is still false. A boriginal people who have brought their land claims before the A ustralian courts in the post-Mabo era have experienced this double bind of the differend first hand. A lthough the Mabo judgment found that native title can continue to exist after the establishment of A ustralian state, the onus remained on indigenous groups to bring their claims to native title before the A ustralian courts in particular cases to provide that native title did still exist. In order to be successful, indigenous people had to prove that they maintained a traditional association with the land that they claimed. This meant that the law afforded redress to those ‘least’ dispossessed by colonization. In fact, most native title claims failed, with courts effectively establishing that for these groups native title had been extinguished. A s Kerruish and Purdy (1998, 152) discuss, in making available the legal identity of ‘native title claimant/holder’ to indigenous people, Australian property law effectively says: Either (a) S ince you no longer maintain your traditional customs and laws, your claim is invalid. A lthough your ancestors suffered dispossession, you did

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not. In fact, you are not real A borigines any more but part of our society. (b) S ince you have maintained your traditional customs and laws you have not been dispossessed. In fact, your native title claim has always been potentially redeemable within the law.

Whereas a plaintiff who lodges a complaint is heard, the victim is ‘reduced to silence’ since there is no phrase available in terms of which the damage suffered could be adequately represented. If the victim is heard at all, it is not as a victim but as a plaintiff. In 1998, one of the original tent embassy protestors, Isobell C oe, together with several others who persist in viewing the conflict in terms of invasion rather than settlement, sought an order from the S upreme C ourt of the ACT that genocide was a recognized crime in A ustralian law. T he application was dismissed. O n appeal to the Federal C ourt it was held that the crime of genocide did not form part of the common law of A ustralia. T he applicants sought leave to appeal before the H igh Court, which was refused. Isobell Coe was briefly able to address the court: ‘if we cannot get justice here in the highest Court of this country, then I think that this Court is just a party to the genocide as well’. Gummow J responded: ‘No, we will not hear that sort of thing’ (cited in Coe 2000). Howard’s assertion that the claim to Aboriginal sovereignty is an absurd proposition thus appears to be a well-established principle of A ustralian law. Moreover, it seems that, within the terms of the A ustralian law at least, this clearly signals a case of the differend. W ithin the law courts, the claim to A boriginal sovereignty can only appear as an unreasonable proposal or an illogical assertion. The subject of the claim is denied the (legal) means to make the wrong of the social order visible. But if the wrong of colonization cannot be redressed legally, understanding the absurd proposition of A boriginal sovereignty as a ridiculous presentation suggests how it might nonetheless be possible to redress the wrong politically. ‘Action is Against Camping Not Against Demonstration or Protest’ (Ralph Hunt) A s with most successful political acts, there was an element of good fortune in the staging of the tent embassy outside Parliament H ouse in 1972. A C ommonwealth ordinance existed which prohibited camping on C rown land without a permit but exempted A borigines. A lthough the exemption was made with the N orthern T erritory in mind, it also applied to the A ustralian C apital T erritory. A s it happened, the lawns of Parliament H ouse were C rown land, which effectively meant that the Aboriginal activists were entitled to camp there. Over the several weeks following A ustralia day, the tent embassy grew from a single beach umbrella to several tents, drawing Aborigines to protest in Canberra from all over the country. Jack Waterford

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(1992, C1) recalls that it came to ‘look like any number of fairly dirty Aboriginal reserves: cooking in the open, bed linen spread about to dry, rather inadequate means of keeping clean. It was bringing the reality of Aboriginal Australia right to Australia’s front door.’ The Department of Interior was concerned with the impact that the protest was having on the lawns surrounding the Parliament, which it wanted to be in good condition for the impending visit of the Indonesian President. It sought, unsuccessfully, to move the protestors by turning on the sprinklers. C oncerns were also expressed about the grass getting too long but an arrangement was reached whereby the protestors offered to mow the lawn themselves. For R ancière, in contrast to Lyotard, politics is not the threat of the differend but rather comes about with the demonstration of a wrong, which he calls disagreement (see Jean-Lois Déotte 2004). To develop this argument, Rancière draws an important distinction between politics and police. Police refers to the social order that ‘defines a party’s share or lack of it’ (Rancière 1999, 29). It takes the population as its object, assigning each part of the population its proper place and role. In Rawlsian terms, police concerns the distribution of the benefits and burdens of political community. In his A ustralia day address, McMahon (1972, 12–13) gave voice to the police when he spoke of assisting Aborigines ‘to hold effective and respected places within one Australian society’. Since it is concerned with assigning members of society their proper part, the police is inherently inegalitarian. Yet every inegalitarian order implicity presupposes the fundamental equality of anyone with everyone. W hile every social order is based on a division between rulers and ruled, for the ruled to be capable of following orders there must be a fundamental equality in their capacity as thinking and speaking subjects. This is revealed in the double meaning of the verb ‘to understand’. As Rancière explains, ‘“Do you understand?” is a false interrogative.’ When the colonizers say to the colonized, ‘You have no claim to the land we have settled. Do you understand?’ they mean: ‘There is nothing for you to understand, you don’t need to understand’ and even, possibly, ‘It’s not up to you to understand; all you have to do is obey’ (R ancière 1999, 44–5). H owever, to be capable of obeying an order means that one is also capable of understanding its meaning as an order. S ince an inegalitarian social order depends on the ability of the ruled to obey orders, it necessarily presupposes that the ruled have the capacity for political speech that it explicitly denies in order to justify their domination (R ancière 1999, 16). R ather than coming about through the incommensurability of discourses (as in Lyotard), for R ancière a wrong refers to this torsion in the social order brought about by the radical equality that is necessary to sustain the inequality of social relations. T he political always involves the presentation of this wrong. Politics is the ‘open set of practices driven by the assumption of equality between any and every speaking being and by the concern to test this equality’ (Rancière 1999, 30). Politics is what brings the contingency of the social order into view by staging a meeting of the logic of police with the logic of equality. T he polemical space of a demonstration ‘holds equality and its absence together’ through the ‘staging of

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a non-existent right’ (Rancière 1999, 89, 25). As such, politics always entails the ‘manifestation of dissensus, as the presence of two worlds in one’ (Rancière 2001, 21). T he powerful symbolism of the tent embassy is due to the way in which it presents two worlds in one: the social world in which A borigines are assigned their part in the settler society and the political world in which the A boriginal nation addresses the settler society as its equal. The tent embassy invokes Aboriginal sovereignty as a right while testifying to the lack of sovereignty in fact. On the one hand, the embassy has the symbolic trappings of sovereignty: it flies its own flag and it claims the right to negotiate with the A ustralian state as the representative of a sovereign people. O n the other hand, the embassy is a tent rather than a permanent building. R esembling the fringe dweller camps of rural A ustralian towns, the tent embassy also makes visible the dispossession of indigenous people, their lack of sovereignty over their lands. When Parliament resumed from the summer break on 23 February 1972, after several weeks during which support for the demonstrators had grown, the Minister for the Interior, Ralph Hunt, announced that the Government would ‘have to look at an ordinance to ensure that Parliament Place is reserved for its purpose – a place for orderly and peaceful demonstration, but not a place upon which people can camp indefinitely’ (House of Reps, Hansard 23/2/72, 108). In late June, Hunt announced that the G overnment intended to enact legislation that would empower police to remove the tent embassy. He recommended that ‘the campers’ apply for a lease to build an Aboriginal club in the ACT and hoped that ‘they accept this as a reasonable proposition’ (cited in Waterford 1992, C2). A document drawn up by the Department of the Interior for a Cabinet meeting on 27 June 1972 outlined several pros and cons for removing ‘the campers’ should they persist with the demonstration. Among the pros were that the ‘proposed action is tactful – directed at tents not the individuals’ and that the action is ‘against camping not against demonstration or protest’. At the meeting, it was decided to amend the Trespass on C ommonwealth Lands O rdinance in order empower police to remove the tents. A s Peter H allward (2006, 117) puts it, the counter-political action of the police is first and foremost anti-spectacular. It is less concerned with interpellating subjects (as Althusser argues) than with breaking up demonstrations. Rather than ‘Hey, you there!’, the police is more likely to say ‘Move along! There is nothing to see here!’. The police ‘asserts that the space of circulating is nothing other than the space of circulation’ (Rancière 2001, 22). This quality of the police is vividly described by Roberta Sykes in the extraordinary documentary of the 1972 protests, Nigla A-Na (‘Hungry for our Land’). On 20 July, within one hour of the amended O rdinance being gazetted, 150 police marched toward the tent embassy. In a violent confrontation with the protestors, the police removed the tents. H aving been arrested by police as they forcibly dismantled the tents, Sykes found several hours later that she was to be charged with traffic offences so was unable to claim that she was a political prisoner. A lthough empowered to do so, the police deliberately avoided charging A borigines with trespassing on C rown land since that would be too politically charged.

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Against the policing of public space, politics consists in ‘transforming this space of ‘moving along’ into a space for the appearance of a subject … It consists in refiguring this space, of what there is to do there, what is to be seen or named therein’ (Rancière 2001, 22). On Sunday 23 July 1972 two hundred Aboriginal people and their supporters marched to Parliament H ouse to restore the tent embassy. Once erected, they defiantly encircled the tents to protect them. The demonstrators met the intimidation of state violence with ridicule. W hen it was rumoured that Minister R alph H unt was watching the proceedings from a window of Parliament House, ‘a chant started up, rhyming slang mocking the minister’s surname’ (Robinson 1994, 57–8). This time the demonstrators were met by 360 police who marched in formation, appearing from behind Parliament H ouse. T he demonstrators began to chant ‘Sieg Heil’. The tents were again removed in an even more violent confrontation. T he demonstrators were dispersed, but vowed to return the following Sunday. On 30 July, around two thousand Aboriginal protestors and their supporters and one thousand tourists and onlookers returned to Parliament H ouse and a tent was re-erected. C learly outnumbered, on this occasion the police did not intervene. A fter several hours, two unarmed police were allowed into the crowd to remove the tent. A few moments later the police observed another embassy apparently being erected on the other side of the park. They ran over to tear it down, only to discover it was ‘just a whole lot of people standing up holding a piece of canvas on their heads’ (Sykes in Robinson 1994, 61). The police removed the canvas ‘to reveal a circle of Aboriginal people sitting smiling at them, making the then-popular raised V-sign of peace and holding aloft a placard designating the site as the Aboriginal Embassy’ (Robinson 1994, 62). Politics, R ancière insists, is: primarily conflict over the existence of a common stage and over the existence and status of those present on it. It must first be established that the stage exists for the use of the interlocutor who can’t see it and who can’t see it for good reason because it doesn’t exist. Parties do not exist prior to the conflict they name and in which they are not counted as parties. (R ancière 1999, 27)

T he tent embassy can be understood as an attempt to establish such a common stage. At first glance, such an interpretation is at odds with the spirit of the Aboriginal tent embassy and the ethos of Black Power that animated it. Aboriginal people might rightly insist that they do not owe their identity to the settler society and that it was their identity as traditional owners of the land that they were asserting or reclaiming. A nd yet, there is an important sense in which the sovereign A boriginal nation in whose name the tent ambassadors planted their beach umbrella did ‘not exist prior to the declaration of wrong’ (Rancière 1999, 39). In doing so, the tent embassy demonstrators sought to speak from a subject position that was not afforded to them by the social order. In Parliament, Hunt suggested that ‘the protagonists for Aborigines are frequently neither Aboriginal nor part-Aboriginal’, claiming that ‘the Communist

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controlled unionists, the so-called peace movements, Maoists, Trotskyites and left-wingers generally are hell-bent on dividing the A ustralian nation on racist issues’ (Hansard 23/2/72, 133, 129). Throughout the time the embassy was encamped outside Parliament H ouse in 1972, H owson, the Minister for A boriginal Affairs, had refused to negotiate with the ‘unrepresentative militants’ (Robinson 1994, 59). In A ugust, he instead convened a national conference of G overnmentselected delegates, which he claimed was truly representative of all A borigines. H owever, the conference voted to give the tent embassy representatives full speaking and voting rights and passed a motion calling for the tent embassy to be re-established. There is a striking parallel here between the story of the tent embassy and that which R ancière recounts about the secession of the R oman plebeians on A ventine Hill. According to Rancière (1999, 23), in Ballanche’s retelling of Livy’s account, the ‘entire issue at stake involves finding out whether there exists a common stage where plebeians and patricians can debate anything’. For the intransigent patricians, there can be no negotiating with the plebs for the simple reason that they are deprived of the logos. T hey have only voice, in which they can express pleasure or pain but lack speech, the fundamental political capacity according to which a distinction can be known between the harmful and useful, the just and unjust. In response, the plebeians constitute themselves as another political community and send an emissary to negotiate with the patricians. W hen one of the patricians, Menenius, comes to deliver an apologia to the plebeians – a justification of the social order and the necessary inequality between patricians and plebeians – they ‘listen politely and thank him but only so they can ask him for a treaty’ (Rancière 1999, 25). In the Roman senate, a secret council of wise men conclude that ‘since the plebs have become creatures of speech there is nothing left to do but to talk to them’ (Rancière 1999, 24–5). C ontrary to Lyotard, R anciére insists that although a wrong cannot be regulated it can be processed. This processing of a wrong occurs ‘through the mechanisms of subjectification that give it substance as an alterable relationship between the parties, indeed as a shift in the playing field’ (Ranciére 1999, 30). The tent embassy was extraordinarily successful as a symbolic enactment of A boriginal sovereignty. As such it opened the possibility of such a shift in the playing field in settler–indigenous relations. H owever, A ustralian A borigines have not been successful in their demand for a treaty. Indeed, it is no small irony that the formal reconciliation process ended in 2001 with a call for a treaty between indigenous people and the state. In 2008, the newly elected A ustralian Prime Minister Kevin R udd gave a long awaited formal apology to A boriginal people. W hile indigenous people generally regarded the apology to be appropriate, for most the issue of a treaty remains the ‘unfinished business’ of reconciliation. In this context, the tent embassy, and the shift in the playing field that it sought to bring about, perhaps provides an indigenous exemplar for conceptualizing reconciliation as decolonisation. For, although feared by conservatives as a demand for separation, in staging a disagreement the tent embassy also intimated a proto-political

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community in which colonizers and colonized might address each other as equals. A s such the enactment of A boriginal sovereignty by the tent ambassadors might be understood to invoke the community-to-be-reconciled even as it makes manifest the wrong of colonization that divides indigenous and settler societies. T he tent embassy thus remains a powerful exemplar of the possibility of processing the wrong of colonization in A ustralia today. Acknowledgment I am grateful to Anne Orford for inspiring me to write this chapter and to Jason Frank, Emma Larking and Bice Maiguashca for their detailed comments on an earlier draft. Bibliography Christodoulidis, E. (2004), ‘The Objection that cannot be Heard: Communication and Legitimacy in the Courtroom’ in A. Duff et al. (eds.) The Trial on Trial (O xford: H art). Coe, I. (2000), ‘The Aboriginal Tent Embassy 28 Years After it was Established: Interview with Isobell Coe’, Indigenous Law Bulletin 5(1), 17–18, accessed at: http://www.austlii.edu.au/au/journals/ILB/2000/5.html#H eading1, viewed 22 May 2008. Déotte, J. (2004), ‘The Differences Between Rancière’s Mésentene (Political Disagreement) and Lyotard’s Différend’, SubStance #103 33:1, 77–90. Deranty, J. (2003), ‘Rancière and Contemporary Political Ontology’, Theory and Event 6:4. Esslin, M. (2001) The Theatre of the Absurd, third edition (London: Methuen). Feltham, O. (2004), ‘Singularity happening in politics: The aboriginal tent embassy, Canberra 1972’, Communication and Cognition 37:3–4, 225–45. Foley, G. (2001), ‘Black Power in Redfern: 1968–1972’, accessed at: http://www. kooriweb.org/foley/essays/essay_1.html, last viewed 29 June 2007. G ilbert, K. (1993), Aboriginal Sovereignty: Justice, the Law and Land (C anberra: Burrambinga Books). G oodall, H . (1996), Invasion to Embassy: Land in Aboriginal Politics in New South Wales, 1770–1792 (S t Leonards: A llen & Unwin). Hallward, P. (2006), ‘Staging Equality: Rancière’s Theatrocracy’, New Left Review 37:Jan/Feb, 109–29. Howard, J. (1988), ‘Treaty is a Recipe for Separatism’ in K. Baker (ed.) A Treaty with the Aborigines? (Melbourne: Institute of Public A ffairs Limited). Kerruish, V. and J. Purdy (1998), ‘He “Look” Honest – Big White Thief’, Law/ Text/Culture 4:1, 146–65.

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Lyotard, J. (1988), The Differend: Phrases in Dispute, trans. G . Van D en A bbeele (Minneapolis, MN : University of Minnesota Press). McMahon, W. (1972), ‘The PM’s Statement on Policy’, The Canberra Times 26 January, 12–13. Motha, S. (2002), ‘The Sovereign Event in a Nation’s Law’, Law and Critique 13, 311-338. Motha, S. (2005), ‘The Failure of “Postcolonial” Sovereignty in Australia’, Australian Feminist Law Journal 22, 107–25. Newfong, J. (1972), ‘The Aboriginal Embassy: Its Purpose and Aims’, Identity 1:5, 4–6. Patton, P. (2001), ‘Reconciliation Aboriginal Rights and Constitutional Paradox in Australia’, Australian Feminist Law Journal 15, 25–40. Rancière, J. (1999), Disagreement: Politics and Philosophy, trans. Julie Rose (Minneapolis, MN : University of Minnesota Press). Rancière, J. (2001), ‘Ten Theses on Politics’, Theory and Event 5:3. Rancière, J. (2004), ‘Who is the Subject of the Rights of Man?’, South Atlantic Quarterly 103:2/3, 297–310. Robinson, S. (1994), ‘The Aboriginal Embassy: An Account of the Protests of 1972’, Aboriginal History 18:1–2, 49–63. Tormey, S. and J. Townshend (2006), ‘Jean-François Lyotard: From Combat to Conversation’ in Key Thinkers from Critical Theory to Post-Marxism (London: S age). Trumbull, R. (1972), ‘Australian Aborigines Set Up “Embassy”, Score Diplomatic Coup’, The New York Times 8 March, 2. Tully, J. (2000), ‘The Struggles of Indigenous Peoples for and of Freedom’ in D . Ivison, P. Patton and W . S anders (eds) Political Theory and the Rights of Indigenous Peoples (C ambridge: C ambridge University Press). Waterford, J. (1992), ‘We’re Already Home’, Canberra Times 25 January, 1–2. Wolfe, P. (1994), ‘Nation and Miscegenation: Discursive Continuity in the PostMabo Era’, Social Analysis 36, 93–152. Cases Coe v Commonwealth (1979) 24 A LR 118 Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141

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Index abolition of injustice 52–3 abolitionism, manner and style of 98–101 A boriginal sovereignty absurd proposition of 209–11 legal cases 214–17 absurd proposition of A boriginal sovereignty 209–11, 213–17 action, theory of 48–9 A gamben, G . 87 agon, etymological and textual origins 18 agonism alternative position to 109–16 approaches of 1 centrality of conflict 105 compared to Marxism 2–3, 21n6 and complexity 193–4, 204–6 limits of 106–9 and politics 2 postmodern and ancient compared 31–6 and social contract theory 123–4 three strands of 1–2 agons athletic, inA ncient G reece 18–23 democratization of 23–5 pacification of 23–4 alegality 60–4, 77–8 alienation 43–4 A liens T ort C laims A ct 163–4, 175 ancient agonism athletic agons 18–23 move towards postmodernism 31–6 A ncient G reece approaches against narcissism 26–30 athletic agons in18–23 democratization of the agon 23–5 individuality in20 masculinity in20–1 narcissism inearly agonistic culture 21–3 strangers in153–6

antagonism democratic 51–4 need to take seriously 137–40 and world and care 141–5 anthropology, political 47–9 A rendt, H . 24, 43–4, 114–15, 116, 127, 133–4, 137 antagonism, world and care 141–5 aristocratic assumptions indistinction model 44–7 and democratic antagonism 51–4 essentialist political theory of 49–50 political anthropology of 47–9 political ontology of 49–51 theory of action 48–9 aristocratic assumptions indistinction model 44–7 A ristotle 28–9, 116, 119, 120–1, 149–50 athletic agons 18–23 Austin, J.L. 165–72, 174–5 A ustralia absurd proposition of A boriginal sovereignty 209–11 legal cases regarding A boriginal sovereignty 214–17 Mabo judgement of H igh C ourt 214, 216 tent embassy, Parliament H ouse, 211–12, 217–22 authority, democracy as way of negotiating 126 ‘Beeston Boys ‘ report 180–8 Being and Time (H eidegger) 110 Benhabib, S eyla 106 Berlant, Lauren 179–80 Bohman, James 169 bombings of July 2005, Muslim men’s reactions to 180–8 boundaries of democracy 122, 124 Brandom, R . 79

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British Muslim men, interviews with 180–8 Burckhardt, J. 23, 30 Butler, Judith 167 care and antagonism and world 141–5 C avell, S . 75–6, 167, 168–72, 174–5 centrality of conflict 105 C icero 27 civil liberties 81–2 closure 67–9 C oe, Isobell 212, 217 C oe, Paul 211, 213–14 C ollingwood, R .G . 76 colonization, internal 213 commitment making and keeping 73–4 common interest 127–8 communitarian politics 107 community and Muslim men’s reactions to bombings 184–7 complexity and agonism 193–4 H abermasian misreading of 198–204 and law 196–8 and politics 194–6 conflict, centrality of 105 connected criticism 93 C onnolly, W illiam 1, 3, 33, 100, 108 consent 75–6 constituent moments 88, 94 constitutional dialogue 64–5 constitutionalism, popular 95–7 Contributions to Philosophy (H eidegger) 113 cosmopolitanism and the stranger 150–1, 152 counter-narcissism inA ncient democracy 26–30 courage 53 C over, R obert 96, 100 democracy and agonism 107–9 boundaries of 122, 124 and conceptions of place 121 counter-narcissism inA ncient 26–30 membership of 126–7 norms in76, 78

and the people 122–3 as way of negotiating authority 126 Democracy and Difference: Contesting the Boundaries of the Political (Benhabib (ed.)) 106–7 democratic agonism emergence of 15–16 postmodern and ancient compared 31–6 democratic antagonism 51–4 democratization of the agon 23–5 Deranty, J.P. 78 Derrida, J. 112–16, 150 difference inpostmodern agonism 32–6 differends 209–10, 213–17, 215–16, 217 distinction model, aristocratic assumptions in44–7 Do-Nothing Policy, The (D ouglass) (lecture) 100 Douglass, Frederick 87–101 D red S cott decision 95 Dunn, John 106 Eisenberg, A vigail 66 emergent properties 198 empty places 120–2 enmitous relations 143–5 equality meaning of 51 and politics 218–19 essentialist political theory 49–50 ethical agency and the sovereign individual 72–5 exclusion 43–4, 83, 147 expressivist agonism 1, 3 Fanuzzi, R obert 100 feminism, agonistic 31 Flynn, B. 122, 123 foreigners inA ncient G reece 153–6 political theories and 149–53 political theorizing on 147–8 and synagonism 156–9 Foucault, Michel 15–16, 54 Fourth of July address by Douglass 89–94, 101 freedom

Index civic 81–2, 83–4 and politics 50 G adamer, H .-G . 67–8 G laude, E.S . 92 G reece 143–4 G utmann, A my 99 Habermas, J. 59, 136, 138, 198–204 H allward, Peter 219 H eidegger, M. 109–14 H eller, A gnes 109 H esiod 28 H onig, Bonnie 29, 32, 107–8 hospitality 115 Howard, John 209 H owson, Peter 212–13, 221 H unt, R alph 219, 220–1 identity 83–4 and Muslim men’s reaction to bombings 182–3 and politics 47–8 inpostmodern agonism 32–6 illegality 60–4, 77–8 illocutionary acts 168 individuality inearly agonistic culture 20 move from inpostmodern agonism 31 information loops 197–8 injustice, abolition of 52–3 internal colonization 213 international law and the stranger 151–2 interviews with Muslim men 180–8 Introduction to Metaphysics (H eidegger) 113 Kant, I. 72–3, 75, 120 Kerruish, V. 214, 216–17 Khulumani case 163–4, 172–6 Khulumani S upport G roup 163, 173–4 Knops, A . 138 Laclau, E. 171 Laden, A .S . 83 law and complexity 196–8 and emergent properties 198

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and information loops 197–8 international, and the stranger 151–2 and non-linearity 196–7 ostracism 28–30 and path dependence 197 and politics 2 rule of 79–81 tyrannicide 30 Lefort, C laude 119, 120, 121, 122–4, 124–5 legality 58–64, 77–8 legislation boundaries of 59–60 grounding of 58 liberalism 106–7 Lindahl, H ans 77–8 Lowell, James Russell 89 Luhmann, N . 201, 203 Lyotard, F. 190, 209–10, 213, 214–15 Mabo judgement of A ustralian H igh C ourt 214, 216 Markell, P. 47–8 Marx, Karl 43–4 masculinity inearly agonistic culture 20–1 move from inpostmodern agonism 31–2 McMahon, W illiam 211–12 Meaning of July Fourth for the Negro, The (D ouglass) 87–8, 89–91, 101 meaning of the political 134–7 membership of democracy 126–7 Men inDark Times (A rendt) 52 Merchant, O liver 114 Merleau-Ponty, M. 127, 128 metaphor 119 Miller, S tephen G . 25 misery and political participation 45–7 Missouri C ompromise 95 Mouffe, C hantal 1, 3, 35–6, 108, 109–11, 133–4, 137–40, 141, 143 Muslim men, interviews with 180–8 My Bondage, My Freedom (D ouglass) 93–4, 101 narcissism 34–5

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approaches against inA ncient democracy 26–30 inearly agonistic culture 21–3 N attrass, N . 173 N egri, A . 124 neutralizaton of alegality 64–7 N ieman, D onald G . 95 N ietzsche, Friedrich 29, 73–5 non-linearity 196–7 norms indemocracy 76, 78 Norris, Thomas v. 66–7 Ober, Josiah 154 On Populist Reason (Laclau) 171 ontology, political 49–51 openness 67–9 ostracism, law of 28–30 ostracism inA ncient G reece 156 O wen, D avid 67n5 pacification of the agon 23–4 participation inpolitics 43–7 passionate utterances 168–72, 174 path dependence 197 patriotism and the stranger 150, 152 Patrizi, Francesco 121 people, the and common interest 128 and democracy 122–3 political meaning of term 87 ‘we, the people’ inDouglass’ Fourth of July address 89–94, 101 performative utterances 165–8 Pericles 24 perlocutionary acts 169, 170–2, 174 persuasion 169 Pettit, P. 58, 72 Phillips, W endell 98 Philosophy of the Abolition Movement (Phillips) 98 philoxenia 156–8, 159 places empty 120–2 of power 124–5 plaintiffs inlitigation 213, 216, 217 polemos 109–16 policing of public space 219–20

political agency, expressivist account of 72–3, 76 political anthropology 47–9 Political Liberalism (R awls) 99 political ontology 49–51 political power 122, 124–5 political theories and the stranger 149–53 Political Theory and the Displacement of Politics (H onig) 107–8 politics agonistic conceptions of 1 aristocratism and participation in44–7 autonomy of 136–7 and complexity 194–6, 204–6 contrasting visions of 134–7 and equality 218–19 exclusion from 43–4 and freedom 50 and identity 47–8 and law 2 law or desire as basis of 165 participation in43–4 Polybius 27 popular constitutionalism 95–7 postmodern agonism 16, 31–6 poverty and political participation 45–7 power place of 124–5 political 122 and violence 135 pragmatic agonism 1, 3 processing of a wrong 221–2 promise making and keeping 73–4 public reason 82–3, 99–100 public space 50, 219–20 Purdy, J. 214, 216–17 Raaflaub, Kurt 153 Rancière, J. 46, 46n2, 47, 87, 88–9, 179, 186–7, 188–90, 209–10, 220, 221 Rawls, John 99, 136, 138 reason, public 82–3 reciprocity 64–9, 77–8, 82 R enault, E. 78 R idley, A . 73 R ogers, W illiam 99 Rogues: Two Essays on Reason (D errida) 115

Index R oman view of war 144 Rousseau, J.-J. 123, 128 rule of law 79–81 S cheuerman, W .E. 200–1 S chmitt, C arl 109, 113, 128, 138, 140 self-legislation 58 self-love inearly agonistic culture 21–3 self-mastery 73–4 self-reference 125–6 session of the R oman plebians 221 Skinner, Q. 169 slaves inA ncient G reece 153–4 social contract theory 123–4 social exclusion 43–4, 83, 147 S ocrates 125 S olon 19–20 sovereign individuals 72–5 speech act theory passionate utterances 168–72, 174 performative utterances 165–8 spheres of validity 58 strangers inA ncient G reece 153–6 political theories and 149–53 political theorizing on 147–8 and synagonism 156–9 strategic agonism 1–2 S trauss, Leo 109 struggle and alegality 60, 67–9 different interpretations of 136 Struggles of Recognition and Distribution (T ully) 64 Sykes, Roberta 211, 219 synagonism concept of 148 and the foreigner 156–9 T aney, R oger B. 95, 96 tent embassy, Parliament H ouse, A ustralia 211–12, 217–22

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Thomas v. Norris 66–7 T homassen, L. 202, 203 T hompson, D ennis 99 T homson, A lex 128 totalitarianism 122–3 truth 127–8 Truth and Method (G adamer) 67 T ruth and R econciliation C ommittee 173 Tully, J. 54n5, 59, 64–7, 67n5, 77–8, 213 T utu, A rchbishop 176 tyrannicide, law of 30 utterances passionate 168–72, 174 performative 165–8 Vernant, Jean-Pierre 153 victims inlitigation 213, 216, 217 Vidal-N acquet, Pierre 153–4 violence and power 135 Volpi, Franco 116 W aldenfels, Bernard 93 W alzer, M. 52, 93 warfare, different understandings of 143–5 we, the people constitutional 95–7 Douglass’ Fourth of July address 89–94, 101 West India Emancipation (D ouglass) (speech) 100–1 Western Political Theory inthe Face of the Future (D unn) 106 W illiams, Bernard 74 W ittgenstein, L. 79–80 women inA ncient G reece 153–4 world and antagonism and care 141–5 wrong, processing of a 221–2 Yack, B. 116