When Law is Lawlessness
December 24, 2018
“What can we infer from all this except that the police are acting at the instance of the government. So is there law in the country? Is there democracy or the Constitution prevailing in the country? How do we evaluate this?”
-Former jurist and Chief Justice of India RM Lodha, in response to the recent arrests of five activists under the draconian Unlawful Activities (Prevention) Act 1967. [From Indian Express, August 30, 2018]
A few months ago, five activists were arrested under the aberration of the law that is the UAPA. This is an attempt to study this instance in our contemporary politics using Derrida’s essay “Force of Law: The ‘Mystical Foundation of Authority’” from (Deconstruction and the Possibility of Justice, Routledge 1992).
Historian Ramachandra Guha said the arrest of the activists was a way to derail the legal process or what is the natural working of droit (right). (We know the judiciary works to enforce droit, but what mystical force, who’s mystical hand, sets the juridical machine to work naturally, where nature is inclined towards droit [right], and where violence is a means and end in the exercise of droit? This is something I have not quite grasped in the essay, perhaps due to its “mystical” nature?) Eminent lawyer Indira Jaising, along the lines of Guha and Lodha said, “There will be no rule of law to defend.”
In the arrest of the activists by the police, we see the workings of a law that is pernicious (Walter Benjamin said that “there is something rotten in law”), where droit (right) is completely flipped and upturned. The rule of law is made flexible, in a perverse subversion of the rule. We are talking of a state — the “secular democratic republic” that is India that secures “to all its citizens justice, social, economic and political…” — where men convicted for beating a Muslim man to death are garlanded by politicians, and where activists working for the rights of marginalised peoples are imprisoned. (Nayantara Sahgal has aptly titled her novel When the Moon Shines by Day) Where is the “possibility of justice” then when law itself is lawlessness? (Derrida, I think, suggests that possibility lies is in its (im)possibility.)
So how do we evaluate this? What does this say about law (droit)? One would think that this moment in contemporary politics shows that droit is not naturally inclined to right(s). But this works under the assumption that law is synonymous to right (droit) and justice. This rather points towards what Derrida suggests in his essay that law is droit (right), but not justice. I move now to evaluate this moment.
The statements made by Guha and Jaising are in the realm of droit; both call for the natural working of the rule of law. This is also interpretive of the harking back to the Constitution — Is there democracy or the constitution prevailing in the country? (Where the history of law can also studied in the history of the formation of states. “The state is also law in its greatest force.”) However, it is this droit or the rule of law itself that is problematic, just as any government replacing another is. But this is not cynicism or pessimism. The question of what other recourse or means is not the point; it is merely an alternate perspective to understand the workings of law.
Picking up one of the many insights on droit (right) from the essay: “law is in the domain of the right to punish.” Violence is in the very workings of droit; droit depends and thrives on it. It has a “monopoly of violence”, ensconced in a tautological structure, where a “certain violence in the law lays itself down, by decreeing to be violent, this time in the sense of an outlaw, anyone who does not recognise it”. The law is not concerned with this or that crime, but in preserving itself; it has the right to punish, enforce itself, decree an outlaw, anyone and anything that challenges the order of law; just as the critique of the death penalty is not against this or that penalty, but the very “violence of the legal system” itself. The student protests in 2016 against the death penalty of Afzal Guru can also be interpreted in this light. It provoked the ire of the state, naturally calling the protest “anti-national”, as the critique of the order of law was essentially a critique of the state. Law is naturally (Latin ‘natura’: birth, nature) inclined to droit (right), whose nature is but violence; the origin of droit is in violence. And one sees that the foundation of any state accompanies and necessitates violence. Can the history of violence also be traced in the history or origins of law?
Or let’s take the case of the death penalty. Derrida writes: “[V]iolence is absolute… when it touches on the right to death and life.” The violence of law (droit) manifests itself to its utmost potential in the possibility of the death penalty. “The death penalty bears witness… to the fact that law is a violence contrary to nature.”
In the Lord of the Rings, the wizard Gandalf tells the hobbit Frodo: “Many that live deserve death. And some that die deserve life. Can you give it to them? Then do not be too eager to deal out death in judgement.” A little critique of the legal system…
UAPA is also one of the manifestations of the violence of law. It is a perversion of an already perverse law (droit), and an unmasking of the rot or what is ruinous in law; it is an even more degenerate droit. This perversion takes the form of the modern police of the “civilised state”, which creates its own law. But its law is within the ambit of the rule of law. The rule of law (droit) provides them the space to create their own rules, “where they produce the law that they are only supposed to enforce”. “[T]he police are no longer content to enforce the law, and thus to conserve it; they invert it, they publish ordinances, they intervene… which these days is to say nearly all the time.” There is the “disgusting ambiguity” where the conserving and founding violence of the law cannot be differentiated. The police take on the role of the lawmaker and conserver, becoming the true legislative power. The modern police then is also representative of the corruption of parliamentary democracy. And so we reminisce for the point of a “purer origin”, where the history of droit is decay (Verfall) since its origin. What is this origin? Is it the day the Indian Constitution was formed? Democracy, in a Marxisant sense, “remains yet to come” (Leonard Cohen has written a song about it: “Democracy is coming…”)
So is there law in the country? It is in fact working ferociously through the modern police, that “commands the totality of the political space”. The rule of law has taken the rei(g)ns; it is droit in full action: “it is in droit, what suspends droit. It interrupts droit to [conserve/found] another.” This is the “monopoly of violence” of law, in its tautological and self-serving nature.
Derrida talks about this in the case of the general strike and the revolution, but what we are seeing is, as mentioned, a perversion of droit within the ambit of droit, and the modern police as a further degeneration of droit as well as democracy. Can we perhaps see this instance in contemporary politics as the attempted revolution of the conservative right (in its capacity to exercise dictatorship)? But it is in the guise of democracy, which makes it all the more insidious.
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