If that is the copula, a dialectical medium, synthesising sentences on and of words, that are sentences on and of the world, reflecting the subject’s experience of separation and yet inseparability, then what does it mean to say that law is the copulawrit large?
It means the same, with one forceful difference: the law is this—a sentence over life, like every other, and yet like no other. ‘The law is this’: a sentence like every other, it remains intentional and not ontic, normative and not definitive; like no other, its hypostasisation is rock-solid. ‘The law is this’, the legal authority states, to which the response can be heard, ‘this is not law’, to which the legal authority re-states, ‘the law is the law’. ‘This’, what even the greatest scientific mind non-naïvely refrains from claiming to know absolutely, holding up only a fractured probability of what this ‘is’, the legal authority renders stone-cold fact.4
And yet, rendered in stucco finish, the sentence plastered over with a calcareous substance that imitates stone, the basis always penetrates through. The voices talk back, ‘this is not law’: a sentence on and of law, convicting it of inadequacy, as ‘is’, requiring a response that is more than an affirmation of what is ‘the law’.
My aim in the rest of the chapter is to examine the implications of this—of seeing law as the copula writ large. I do this in the next part of the chapter by considering law as the articulation of normativity from three perspectives.
(1) The first perspective is from the standpoint of law as the expressive subject that articulates the sentence, ‘the law is this’. This means looking at things through law—seeing law not as an object of study (‘the law’), butas an expressive subject, ‘law’, that gives form to existence, as its object, always as a normative matter. This is the ‘outside’ perspective, in poststructuralist terminology, the view from the exterior: law, as subject, looking in at its legal creation non-naïvely. This is also what I refer to as the conceptual perspective. And the view from here is unsettled: the subject can see how every act of articulation, of expressing what ‘is’ (‘the law’), is an idolistic leap of faith, over what remains in between what is and what is predicated as ‘is’—how ‘this’ is and is not what it is expressed to be by law. In short, this is about seeing the contradiction in law from the non-naïve
4 See Bruno Latour, The Making of Law: An Ethnography of the Conseil d'Etat, trans Marina Brilman
perspective of law-as-subject, a contradiction that animates every expression of ‘the law’.
(2) The second perspective is from the standpoint of the subject within jurisdiction, whose experience of law is neither wholly circumscribed by ‘the law’ as expressed, nor wholly outside ‘the law’. Rather than seeing ‘law’, as subject, this second point of view is about seeing ‘the law’, as object, from the perspective of the subject whose experience is the very object of law. This is the inside perspective of the grammatical subject of the predicate sentence, that experiences the reality of the sentence, ‘the law is this’. This is also what I refer to as the non-conceptual perspective, the abject perspective, of the subject whose experience of law is neither as predicated nor simply free from predication.
These first two viewpoints are concerned with law as a ‘subjective’ and as an ‘objective’ phenomenon: from the first perspective, how law gives form to the world, as a subjective matter; and from the second perspective, how the law takes form in the world, as an objective matter. And yet: ‘dialectics [is] not a standpoint’.5
Having considered law from these two separate standpoints, in positive-analytical fashion, the next task is to confuse things, in negative-dialectical fashion.6 Thus a
third perspective is needed.
(3) If the first perspective provides a view of the pendulum in motion from an external standpoint, observing how it swings back and forth between poles— how what ‘is’ is also not as is; and if the second perspective provides a view of things riding the pendulum, attempting to stay un-nauseated, made dizzy by the experience of an existence neither as ‘is’ nor not as ‘is’; then this third perspective provides a view on the process itself. This is about seeing how ‘law’ becomes ‘the law’ and how ‘the law’ becomes ‘law’, and how this process of becoming takes place in the interplay between the two poles of law as expressive subject and the law as object of expression, which is no place at all but a constant movement. This interplay animates law, making it both dominating and emancipating, violent and non-violent; and it is this, as I examine in Chapter 3, that animates law’s rule.
5 Adorno, Negative Dialectics, 16-18.
6 Dialectical analysis is ‘confusing’ in the sense that it does not just separate out everything into
discrete things, as in positivist analysis, but also focuses on how these analytically separated things are fused together (con-fused).