We had fed the heart on fantasies,
The heart's grown brutal from the fare;
More substance in our enmities
Than in our love;¹

The identity of the Modern Sovereign State logically requires the construction and exclusion of its Outsiders, and it is the fault of the history of the world.²

The “history of the world” is intentionally both evocative of the past and exceedingly vague. Essentially, States have to cite their history in order to legitimise themselves in the international community. The past itself, however, is an entirely relative and indeterminate concept, as will be explained below. The problem can be summarized thus: The State can only exist in binary opposition to the Outsiders it necessarily constructs. A State’s identity is determined by what it is not: its Other. In order for a State to acquire its identity, it must draw upon an indeterminate foundation. Faulting “the history of the world” with the exclusion of Outsiders is a metaphor, as the fault does not lie with the State or with “the history of the world”, but with the philosophy of law that informs the positivist legal system. The “fault” is meant for irony’s sake: the positivist law applies principles based on an indeterminate foundation in order to assign fault. The present work aims to describe how the dichotomy of fault/faultless depends on an indeterminate foundation and thereby loses its legitimacy. In reality, the exclusion of Outsiders is attributable to the positivist philosophy that has dominated jurisprudence.

Attributing fault to the history of the world tempts the utilitarian fixer in all of us to root out “the history of the world” and give it a “once over.”³ This is, however, an erroneous approach because the “history of the world” is, perhaps just as it sounds, unknowable. The term can and should evoke the frightening image of a deluge of information impossible to organize, but that is not the reason why the “history of the world” is beyond understanding. The phrase has a circuitous meaning that prevents us from experiencing its definition. There is only a tautological explanation of the problem:

The State’s requirement of Outsiders is caused by the “history of the world”: The “history of the world” causes the State’s requirement of Outsiders.

The “history of the world” is a sign referring to its own mirror image. It provides nothing new or different and thus, no meaning.

Despite the logical impossibility of knowing the “history of the world”, many attempts have and will be made to identify it, and thereby, reify it. Once we understand the “history of the world”, which lies far beyond the State/Outsider conflict, we will be able to resolve the conflict. The conquest of the transcendental is the essential first step in resolving the State/Outsider conflict. Essentially, an inherently indeterminate concept such as the “history of the world” must be pinned down. In some cases, it is the history of the world that comes to represent the “history of the world”; i.e., a version of world history is employed to explain what is beyond our understanding. Once history is explained, the State/Outsider dichotomy can be placed within the progressive order. Eric Hobsbawm describes the purpose of the production of history:

[H]istory is the raw material for nationalist or ethnic or fundamentalist ideologies, as poppies are the raw material for heroin addiction. The past is an essential element, perhaps the essential element in these ideologies. If there is no suitable past, it can always be invented. Indeed, in the nature of things there is usually no entirely suitable past, because the phenomenon these ideologies claim to justify is not ancient or eternal but historically novel . . . . The past legitimizes. The past gives a more glorious background to a present that doesn’t have much to celebrate.⁴

The problem is so fundamental it can be described as genetic. Once the hermetically sealed Ship of State is built and the creatures are culled, the sinners are left outside. It is no accident that the story of Noah’s Arc is found in Genesis. In order to identify God’s people, there must be God’s pariah. As soon as the inside is created, an outside comes into the world. And God’s authority, which is forever a mystery, legitimises the exclusion. The insider/outsider dichotomy is the problem. We miss the dichotomy because we do not look inward to understand why the dichotomy exists, but outward to define and incessantly re-define the dichotomy. Identity, as we have discussed, inherently creates its Other, which stands diametrically opposed. In the same way, the Arc enabled the chosen to be separated from the invented discards of God’s authority.

The “history of the world” is both a metaphor and an allusion: it is a metaphor for the indeterminate foundation of the State’s identity and an allusion to Julian Barnes’ The History of the World in 10 _ Chapters. The present work approaches the legitimacy problem inherent in any positivist legal system through literature; that is, what is the State’s authority to enforce law? Barnes’ novel, of sorts, is one of three works of literature that are referenced to explain the problem; the other two, Kafka’s The Trial and Camus’ The Outsider, classics of modern literature, follow a more traditional chronological narrative; a second-person narrative in The Trial and a first-person narrative in The Outsider. Works of literature such as these require a reader to search for meaning; they do not state their agenda and pursue it methodically. As the reader tries to ascertain the author’s intent, the reader begins to empathize with the characters and, eventually, the author. From the author’s perspective, novelist Alberto Moravia said “one writes a novel in order to know why one writes it.”⁵ To summarize the point, reading literature is an active search for meaning; it is not a passive application of principles like the exercise of legal problem solving ­ applying a statute or a few cases.⁶

The present work is divided in three parts. Part One: The Modern Sovereign State and the Requisite Invention of Outsiders presents the theoretical base; we apply the philosophy of Martin Heidegger to explain how the positivist legal system works to construct and exclude Outsiders. In Part Two: The Effects of Exclusion, we will explain, through the three works of literature and through the work of economist Amartya Sen, the consequences of the positivist legal system’s exclusion of Outsiders. Part Three: Hope From Within offers an option to the positivist legal system and its concomitant exclusion of Outsiders.

DIFFERENCE MAKES ALL THE DIFFERENCE

The State only exists in binary opposition to the Outsiders it ineluctably constructs. A State’s identity is determined by its Other. In order for a State to acquire its identity, it must draw upon an indeterminate foundation. To elucidate this point, we bring to bear elements of the philosophy promulgated by Martin Heidegger (1889-1976). Heidegger demonstrated the nature of difference in terms of the conflict between the physical (Existence) and the metaphysical (Being).

Heidegger explained the problem thus: “Existence and Being, each in its own way, are to be discovered through and in difference.”⁷ Heidegger shifted the focus of metaphysics to difference itself. Difference, he contends, is the issue to be addressed . Therefore, all previous philosophical searches, including Heidegger’s, missed the mark:

What we are now primarily concerned with in our undertaking is gaining an insight into the possibility of thinking of difference as an issue which is to clarify in how far the onto-theological constitution of metaphysics derives its original essence from the issue which we meet at the beginning of the history of metaphysics, runs through its periods and yet remains everywhere hidden, and hence forgotten, as the issue in an oblivion which escapes even us.⁸

Difference, as Heidegger explains, is the key to understanding Being, but our intellectual endeavours have failed to address it. Neither an external divine world, nor an internal realm of the mind is capable of answering existential questions. Identity is merely the effect of difference; and difference has to be repeated in order for identity to continue to exist. This means that nothing can possess an ontological status as “thing” or as “event” in isolation. An entity cannot exist without its diametrically opposed non-entity; even an idea cannot exist without its oppositional Other. In order for an idea to have an identity and take some form, there must be an idea in direct opposition. For example, there would be no Truth without Falsity.

The Outsider can take any form so long as it is differential. The Madman, the Criminal, the Foreigner are the very types that a rationalist procedure like liberalism could not take into account.⁹ This is so because they are the anomaly whose expulsion defines the order sought in the chosen method; they are the unexplainably different counter-example; they are outside and can never be inside because the negativity of the outside allowed the positivity of the inside to define itself.

The big ideas, be they secular ones that animate liberal democracy, such as Justice and Truth, or religious ones, such as God’s Law or Creationism, find their essence in their Others. Those big ideas, however, are not necessary for human existence itself. If you take those big ideas out of the equation, you are left with a human-reality without outcasts:

Atheistic existentialism . . . declares that if God does not exist, there is at least one being in which existence precedes essence, a being that exists before being able to be defined by any concept and that being is the human, or, as Heidegger says, human-reality.¹⁰

This point of view leaves the question of existence entirely up in the air. No presumptions are made, and, therefore, identity is diffuse and Others cannot be excluded.

The positivist mode of thought, in contrast, employs Rene Descartes’ famous feat of deduction, the cogito, as the key to understanding human reality. This mode of thought has informed the legal system operating within the Modern Sovereign State. Descartes determined that within the most radical form of doubt, by doubting everything, there could be no doubt that one doubts. Conscious thought itself, therefore, constitutes the first and only certainty, and from conscious thought we deduce our existence. But the act of thinking is a postulation: an unproved and indemonstrable statement that is taken for granted. It is used as an initial premise in the process of reasoning. It follows that human existence is basically hypothetical. This is why waking up is “the oldest dream of all.”¹¹

Colin Wilson summarized the assumptions in Descartes’ philosophy in these terms:

Descartes had said that man cannot be certain of anything except his own consciousness and that therefore philosophy should begin with a study of consciousness; but this was the very thing that Descartes neglected to do. He thought of his consciousness as a mirror reflecting the world. He agreed that the mirror might be distorting the world; but he replied that man can never have any way of knowing whether this is true.¹²

Human reality may be a dream, but we cannot, like Descartes, premise human reality on one unknowable, which we will call X and leave alone. What we must take from the cogito is the absolute importance of embodied experience. Embodied experience, what we take in through our senses, is the only truth we can know. We learn through experience alone. Experience is all we know, thus we should focus on how experience makes us who we are. When Descartes took consciousness for granted he got the ball rolling for centuries of making an unknown object the foundation for its subject. Descartes took a representation, thinking, as the natural fact of being. Essentially, “[t]he Cartesian scientific method has the subject capture human experience as an object for the interpreter, as subject, to use.”¹³

To illustrate, imagine the State is Descartes. If the State seeks to identify itself as a subject, it can only make an unknown and forever indeterminate principle the foundation for its identity. Furthermore, once that entity which seeks to be a Subject is based on a foundation, the construction of an opposing Object immediately ensues.

Certainly, when we apply Heidegger’s thesis, we discover that the State/Outsider conflict is ineluctable because both entities can only exist through and in difference. The State’s very identity logically requires the construction and exclusion of Outsiders. This point does not end the discussion. Certainly, Outsiders are the sine qua non of the State, but attempts to access the external unknowable foundation forever preclude discovering the nature of the State/Outsider dichotomy. Difference is magnified by Descartes’ method of ignoring the Subject/Object dichotomy and placing a primacy on accessing answers from an external unknowable foundation, such as the “history of the world”. To define the Lawful State/Unlawful Outsider dichotomy, posited laws are employed. Those posited laws that help shape difference are based on an indeterminate foundation. The dynamic at work can be summarized thus: “The external foundation of legal authority ­ the state of nature, the ‘idea’ of the ‘greatest good of the greatest number’ . . . the ‘unspoken’ judicial practices, the ‘law beyond law’ ­ functions as a radical other to the trace of posited laws.”¹⁴ The problem of difference is rooted in the problem of human reality: for identity to exist, conscious thought must precede it. Conscious thought, however, is indeterminate.

An existential philosopher [one who is concerned with man’s relation to the universe] cannot even begin to be objective until he knows something about his [or her] habits of thought ­ what he takes for granted because it happens to be the most convenient way of grasping the world.¹⁵

In the rational world, all of our posited laws are based on a sign with no referent. The dichotomy is necessary, but baseless.

In the case of Law, the aim is to access Justice out there. By accessing Justice, the State can situate itself in relation to its Outsiders.

COGITO JUS COGENS

In law, the Just are separated from the invented Unjust under Justice’s authority. In positivist international law, the identity of the State invents its Others by way of a treaty’s authority. The natural law version of international law is subject to the same dichotomy: the Good State invents the Maverick State. Jus cogens ­ the purely conceptual, primordial, and foundational law that takes precedence over all other laws ­ is the authority or this dichotomy.¹⁶ Identifying an entity, such as identifying a Lawful State, immediately constructs the Other, in this case the Renegade State, because this is the nature of language. We cannot identify without differentiating. This is an inherently arbitrary process, thus it must be legitimised and rationalized by looking to a transcendental foundation.

Our system of law originates in a discourse, a speech, from a transcendental unrepresentable foundation. We attempt to access the foundation in order to sort the world. Because the foundation is indeterminate, interpretation is really an act of imposing assumptions:

Whenever something is interpreted as something, the interpretation will be founded essentially upon fore-having, fore-sight, and fore-conception. An interpretation is never a presuppositionless apprehending of something presented to us.¹⁷

For example a judge justifies his decision of guilt or innocence by interpreting Justice, which is indeterminate, unrepresentable and unknowable. Judges work to access Justice, and who is better the task: their very names have been changed to Justice. They represent Justice incarnate.¹⁸ This is and must remain, however, a representation. The dichotomy between Judge and Judged is determined by an outside authority. It becomes difficult to determine the nature of authority in the absence of faith in authority. If authority is in God, an unknowable intelligence, how do we access Him? Is He in the clouds? Is He in the stellar regions? If the clouds are water molecules, and if the stellar regions are an infinite vacuum with matter interspersed in perfect alignment so as it to prevent it all from imploding (or it could be a vacuum with matter continually expanding), how does the knower access the authority? It does not matter if God is not accessible. The heart of the matter is the act of looking to an indeterminate entity for guidance. An imaginary external referent is employed to define the dichotomy. The dichotomy is strongest, or most emboldened, when an entity ignores the Outsider and listens only to the external authority. No dialogue takes place between parties ­ dialogue is pursued with an ineffable authority. The only way to maintain the dichotomy, the antagonism, the enmity, is by guarding the authority from outside. For, if we do not “communicate” with the unknowable, if we do not feed our hearts on fantasies, we lose all order. The rule of law is not possible without an external, unknowable and compelling Justice, or “law beyond law”; that is, jus cogens. We place our faith in a fiction and we make it our universal principle.

To recapitulate, the State’s identity necessarily creates its Outsiders. Identity logically requires the construction and exclusion of an Other. The transcendental rock upon which we found our identity is a fantasy. The action of differentiating State from Outsider requires a central organizing principle. In current international law, State Sovereignty remains the central principle: the State’s unassailable jurisdiction over its own affairs. The Charter of the United Nations guarantees “the sovereign equality of all its Members.”¹⁹ States are equal under international law; “Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state.”²⁰ Without a central organizing transcendental principle we would have “entropy, which at the daily level translates as: things fuck up.”²¹

Conquering the unknowable is, however, an interminably fruitless way to remedy the logic of binary opposition. The “history of the world” must be left, once and for all, beside the point. It is a fantasy that simply feeds the enmity. This fantasy serves only to feed the positive at one time, and the negative at another, ad infinitum. A cognitive capturing of the “history of the world” is accomplished by presupposing what it could be. In turn, the apprehended “history of the world” affords the capacity to construct a State and its necessary Outsiders.

Let us turn to an example of an invisible and unknowable doctrine that is also an experience that animates many of us, love.

WAITING FOR THE GARAGE OF TRANSCENDENTAL LOVE TO OPEN

Waiting for true love is our lot. Placing hope in true love is an interminable task. Belief in it is a beautifully absurd enterprise. In order to identify a love that works, true love, there must be a love that does not work, false love. Barnes describes this as the paradox about love and time:

You are in love, at a point where pride and apprehension scuffle within you. Part of you wants time to slow down: for this, you say to yourself, is the best period of your whole life. I am in love, I want to savour it, study it, lie around in languor with it; may today last forever. This is your poetical side. However, there is also your prose side, which urges time not to slow down but hurry up. How do you know this love, your prose side whispers like a sceptical lawyer, it’s only been around for a few weeks, a few months. You won’t know it’s the real thing unless you (and she) still feel the same in, oh, a year or so at least . . .. Get through this bit . . . then you’ll be able to find out whether or not you’re really in love.²²

But one can never know what it is to be really in love. The foundation for the rules of love that enables us to distinguish real love from fake love is forever absent. In the same way, the “ultimate foundation of legal authority lacks a further object to which it may refer: it lacks a referent.”²³ The way in which we access an invisible doctrine can be summarized thus:

[A]n invisible doctrine or principle, once conceived, is represented through a sign . . . . The sign comes to represent a particular doctrine which the professional knower can trace through differentiating chains of other signs to some presupposed ultimate, yet absent, foundation. As the knower differentiates between signs, the knower imagines or represents the external object.²⁴

To make Love understandable, Barnes describes it in several ways. Love is supposed to make us happy, but most of the time it does not. If love does not make one’s partner happy, it is because “the atomic reaction you expect isn’t taking place, the beam with which you are bombarding the particles is on the wrong wavelength.”²⁵ The key to being in love is not in the disputes between troubled lovers; it is in a transcendental foundation. The inaccessible transcendental foundation, “love itself”, is where we find true love. This absurd situation can be described in Barnes’ garage model:

You are arriving home ­ or think you are ­ and as you approach the garage you try to work your routine magic. Nothing happens; the doors remain closed. You do it again. Again nothing. At first puzzled, then anxious, then furious with disbelief, you sit in the driveway with the engine running; you sit there for weeks, months, for years, waiting for the doors to open. But you are in the wrong car, in front of the wrong garage, waiting outside the wrong house. One of the troubles is this: the heart isn’t heart-shaped.²⁶

Love is not an external thing entombed in a garage or a heart-shaped box. The transcendental power of love is not contained in the physical heart ­ the beating heart is a muscle, not a dictionary with definitions of the aspects of love. Neither is love an idea that we can grasp after researching and writing dissertations on it. Love is an experience. A primal experience like this can only be expressed in one’s own voice. This voice is colloquial. Because the experience is ephemeral and intangible, an equally ephemeral and intangible language is best suited to express it: the language of poetry, as Barnes notes. Poetry draws the reader in and offers no easy answers. The reader must continually interpret and re-interpret the poet’s allegorical expressions. It is not simply a string of mathematical axioms that one applies to come out with a final integer representing the experience of loving. A dialogue in the primal, colloquial voice is the only way to communicate experience. This point is explored below under the heading Bed Peace.

Kafka’s parable of the Castle of Law in The Trial illustrates, as well, the problem of accessing an unknowable foundation in the legal context. The Castle of Law is never accessed, even by those closest to it. Those close to the Castle attempt to divine laws from the inside despite the fact that they never enter. The Law is necessary in distinguishing Lawful and Unlawful, but representations of it are all conjecture. If one could in fact voyage inside the Castle of Law, or the Garage of Love, it is hypothetically possible that the voyager would return dumbfounded and unable to express what was seen, as it is beyond language and defined as X. The story of the Castle is told “in the very words of the scriptures” ²⁷ but yields no insight. The ineffability of the foundation is lost in academic hedging, qualification, redefinition and virtuoso hedging, but, as Kafka and Barnes demonstrate, one cannot access the foundation. Like religious texts, a parable can be used to define religious identity, but the foundation for the identity is a matter of faith.

Faith is not, and one cannot stress this point too much, a simple one-step process of believing in a foundation. What one believes must be understood. The unknowable must be assimilated, usually through a story. The next section will discuss how we present the unknowable to ourselves and others in order to dupe ourselves and others that we know the identity of the foundation.

SOOTHING FABULATION

Let us bring our attention to Nietzsche’s subversion of the rationalist ideal of knowledge and his thorny critique of Christian civilization’s habit of locating spiritual meaning in everything. The material world is a play of forces in contention, not something that conceals spirit or meaning. It cannot be understood using rational categories like “subject” or “object” or “will” or “truth”, because all categories exist in relative terms ­ moreover, those relative terms are further relative to time and space. In order to grasp a world of forces in differential flux, categories are employed to translate flux into stable identities ­ these are concepts that by their very nature have nothing to do with the material world. All our thinking is fiction making: making metaphors that substitute stability for the inherent instability of existence; making metaphors that substitute meaning for the eternally returning sameness of a material world that conceals no spiritual sense and that ultimately resists being translated into ideas or ideals like Justice, Truth, Sin and Redemption. Nietzsche’s ideal philosopher-artist learns to accept this state of affairs, to refuse to assign meaning to things, to avoid categorisation, to accept the groundlessness of all our ways of thinking, to throw himself into the play of the world and dance with it. On the contrary, the end result of soothing fabulation is a facile and inherently fantastical [read: created in the mind; and, illusory] denouement. As Eric Wolf explains:

By turning names into things we create false models of reality. By endowing nations, societies, or cultures with the qualities of internally homogeneous and externally distinctive and bounded objects, we create a model of the world as a global pool hall in which the entities spin off each other like so many hard and round billiard balls. Thus it becomes easy to sort the world . . ..²⁸

How does this sorting take place? The ordering of the world is, in a word, an inventive process. Invention is not creation. Inventions are made by the imaginative recombination of pieces that are lying around a culture’s workshop, with the addition of the occasional newly machined part. The sorting of the world happens through invention and the source of that invention is through difference. The identity of the State is not an inert fact of nature. It is not merely there, just as the Outsider itself is not just there either. The two entities thus support each other by resting in opposition to each other. Our interpretation of the past works in the same fashion:

[T]he past does not exist independently from the present. Indeed, the past is only past because there is a present, just as I can point to something over there only because I am here. But nothing is inherently over there or here. In that sense, the past has no content. The past ­ or, more accurately, pastness ­ is a position. Thus, in no way can we identify the past as past.²⁹

In The Gay Science, Friedrich Nietzsche expresses the act of invention thus: “Whatever has value in our world now does not have value in itself, according to its nature ­ nature is always value-less, but has been given value at some time, as a present ­ and it was we who gave and bestowed it.”³⁰

Nietzsche later states: “There are no moral phenomena at all, but only a moral interpretation of phenomena.”³¹ This approach has truly unbelievable results. We begin to see meaning in the meaningless in order to explain what is inexplicable. The priest in The Outsider demonstrates the absurd extent of soothing fabulation. Before Meursault, the central character, narrator and Outsider, is to be put to death, his priest attempts to garner a confession by proving the existence of the external foundation in a bunch of rocks. Meursault’s priest does not truly engage in a dialogue, he performs a monologue on his own authority. If Meursault believes the rocks prove the priest’s authority, then the preacher/preached dichotomy is established, taking its authority from the indefinable transcendental foundation. He solemnly tells Meursault:

I know how the suffering oozes from these stones. I’ve never looked at them without a feeling of anguish. But deep in my heart I know that even the most wretched among you have looked at them and seen a divine face emerging from the darkness. It is that face which you are being asked to see.³²

Whether Meursault believes in the rocks or not, the priest will appeal to rocks to communicate with non-priests. The priest loses identity vis-à-vis the non-priests without “the divine face”. In an identical way, the State loses identity without its organizing principle, a form of Justice. A State aspires to be progressing towards “a Just Society”. Identity is based on an unknowable foundation. By aspiring to access the unknowable foundation, we ignore what we exclude when we possess an identity: our Outsider. In the case of the Nation-State, the narrative is organized around identity vis-à-vis the Outsider, but it is legitimized by the transcendental unknowable.

Indeed, it is notably within the epilogues of nationalist dogmas that we find humanism ­ the distant altruistic end, which serves to temper the immediate egocentric means. History gives us many examples. The Russian Slavophiles, such as Nikolai Gogol (1809-52), believed that Europe and Russia were separated by a visceral instinct. According to the Slavophile version, Europe was heir to the Roman tradition of domination and violence, and in the nineteenth century it was consumed with greed and the expansion of empires. The Slavic civilization, however, had no such conquests. This virtue only served as a distinction for a people who were destined to have a place within the circle of great nations. To legitimize the dream of military glory, the Slavophiles had a vision of universal peace: in the conclusion of Dead Souls Gogol presents the image of a thundering troika symbolizing a new Russia that is to do God’s work, after asserting itself as an equal to the dismissive European powers. Gogol’s description crackles with the desire for simple recognition:

And you, Rus, are you not also like a brisk, unbeatable troika racing on? The road smokes under you, bridges rumble, everything falls back and is left behind. Dumbstruck by the divine wonder, the contemplator stops: was it a bolt of lightening thrown down from heaven? What is the meaning of this horrific movement? And what unknown force is hidden in these steeds unknown to the world? Ah, steeds, steeds, what steeds! Are these whirlwinds in your manes? Is a keen ear burning in your every nerve? Hearing the familiar song from above, all in one accord you strain your bronze chests and, hooves barely touching the ground, turn into straight lines flying through the air, and all inspired by God it rushes on! . . . Rus, where are you racing to? Give answer! She gives no answer. Wondrously the harness bell dissolves in ringing; the air rumbles, shattered to pieces, and turns to wind; everything on earth flies by, and, looking askance, other nations and states step aside to make way.³³

Here, Barnes could have been talking about Gogol: “We make up a story to cover the facts we don’t know or can’t accept; we keep a few true facts and spin a new story round them. Our panic and our pain are only eased by soothing fabulation; we call it history.”³⁴

Michel-Rolph Trouillot explains how any interpretation of the past, like Gogol’s interpretation of Russian History, is arbitrary:

In vernacular use, history means both the facts of the matter and a narrative of those facts, both “what happened” and “that which is said to have happened.” The first meaning places the emphasis on the sociohistorical process, the second on our knowledge of that process or on the story about the process.

If I write, “The history of the United States begins with the Mayflower,” a statement many readers may find simplistic and controversial, there will be little doubt that I am suggesting that the first significant event in the process that eventuated in what we now call the United States is the landing of the Mayflower. . . .

Not only can history mean either the sociohistorical process or our knowledge of that process, but the boundary between the two meanings is often quite fluid.

The vernacular use of the word history thus offers us a semantic ambiguity: an irreducible distinction and yet an equally irreducible overlap between what happened and that which is said to have happened. Yet it suggests also the importance of the context: the overlap and the distance between the two sides of historicity may not be susceptible to a general formula. The ways in which what happened and that which is said to have happened are and are not the same may itself be historical.³⁵

The characters in The Trial are actually cognisant of the fact that legal decision-making is based on arbitrary fabrication. They admit it and submit to it. K’s lawyer describes the Court’s decision-making process as conjuring: “in the end, out of nothing at all, an enormous fabric of guilt will be conjured up.”³⁶ And the priest who recites the parable tells K that the external foundation for all law, Justice, as represented in the Castle of Law, does not have to be accepted as true; it must only be accepted as necessary. K reacts by saying that this is a “melancholy conclusion [that] turns lying into a universal principle.” ³⁷ This is the sum of legal fiction. Lying is the principle behind the soothing narrative. The State/Outsider dichotomy is sustained through a lie. Descartes’ Castle of Law is the cogito: it is necessary, but impossible to prove. The next section will show the primary effects of the lie. >

THE VAST ORGANIZATION AT WORK

As we have shown, the identity of a Subject is based through and in difference with its Object. Here, we explore the effects of exclusion as portrayed in The Trial, The Outsider and as witnessed in the twentieth century. Moving from Kafka to world history, we progress from the most surreptitious form of exclusion, to the most shocking. We also shift from observing the effects on an individual, to the effects on collectivities. We must bear in mind that the dynamics are the same ­ communication breaks down; faith is placed in grand legal fictions; suffering is the tragic conclusion.

In the case of the State, a large hierarchical bureaucracy enables it to function. Kafka observed that, in the legal realm, the “ranks of officials in [the] judiciary system [mounts] endlessly, so that not even the initiated could survey the hierarchy as a whole.”³⁸ Most of the bureaucrats are confined to their small task and are oblivious to the massive machine at work ­ a kind of white-collar Taylorism. If those within the State, the “functionaries”, do not really know or question how the State functions, the nature of the State will be completely foreign to the Outsider.

The Subject/Object dichotomy is requisite and creates a space between the opposing parties. The divide has been described as a “differend”, a gap of dissonance that resides between individuals. Subject requires Object, and the space that lies between them is the site of communication breakdown. Instead of attempting to traverse this gap, those within the State turn their gaze to the transcendental foundation to invent a system of defining the Outsider. The experts in the upper echelons of the State contemplate their external foundation and define it by positing laws. Those within the State never communicate with the Outsider, but instead, fulfilling their roles as the “knowers” of the foundation, impose laws on the Outsider. Those within the State construct a language to understand the Outsider: the language of law. The sole purpose of the language of law is to separate the legal from illegal. One who does not know the language of laws can only communicate in their primal, colloquial language that describes embodied experience. The language of law is called a “secondary” language because it is learned in law school and refined within the State. Most importantly, the language of law is based on an unknowable foundation of Justice. In this way, it is completely artificial: it is the artifice of those within the State. Once the secondary language is imposed on the primary, embodied, experiential language of the Other, one instantly ignores the referent and deals exclusively with the signs. The silencing of the Other, is finally consummated in the destruction of the Other.

Communication with the external unknowable foundation over time sees the development of an intricate web of posited rules. In The Trial, the expert knower’s posts are hereditary because the law is so complicated.³⁹ The very architecture in Kafka’s world illustrates the bizarre complexity of the State. Buildings are imposing and the urban plan twisted. Life inside the State leads to debauchery: K discovers knower-inhabitants include nameless crippled prepubescents who are, notably, so sophisticated that they can surmise K’s situation at first glance.

It is specifically The Outsider that raises questions about how we define the most illustrious crime, homicide. Camus elucidates the fact that the Colonial French legal system had no definition of insane or non-insane automatism. Automatism is defined as an absence of voluntariness and is usually applied to the mentally insane. The courts have explained how automatism works: “In principle, the defence of automatism should be available whenever there is evidenced of unconsciousness throughout the commission of the crime that cannot be attributed to fault or negligence on his part.”⁴⁰ Non-insane automatism really only exists in theory: it can be described as temporary, “one shot only” automatism. The accused, the Object, is understood to be sane. If one observes the accused commit an unlawful act involuntarily by way of a loss of consciousness and the accused is crazy, then the Court can place the accused in an asylum. If one observes the accused commit an unlawful act involuntarily by way of a loss of consciousness and the accused is not crazy, then the Court must acquit. Non-insane automatism in Meursault’s case is like sleepwalking, but it is not really. We have no clear definition of it. In fact, Camus’ description of Meursault’s experience may be best. But Camus is not the external foundation to which the Court goes for evidence. Legal rationalism dictates that the Court’s “evidence should be supported by expert medical opinion that the accused did not feign memory loss and that there is no underlying pathological condition which points to a disease requiring detention and treatment.”⁴¹ By ignoring the experience of Meursault, the lawyers were able to legitimise his punishment. Similarly, the Canadian legal system looks to a posited formula to categorise an accused’s experience. Legal knowers replace dialogue with a displacing language that can be described as violent:

The violence of the knowers’ interpretative acts stands naked. For, in delineating the spectres of the Spirit [read: foundation] of legal authority, the displacing discourse assimilates the non-knower’s languages into significations which are meaningful only to the professional knower who inquires whether the sign falls inside the familiar picture of the Spirit. The displacing language assimilates the language of the other in deference to spectres which the professional knowers construct, and in the name of a Spirit which the aggrieved may not share. The knower both interprets and constitutes the picture of the Spirit.⁴²

Neophyte Outsiders do not classify their experience as “automatistic”. They represent it as Meursault does: as embodied experience that is unique in time and in space. The imposition of the posited automatism rule enables the knowers to further control the non-knower though imprisonment or execution. These two punishments are just the culmination of a process of assimilating (that is, silencing and using) primary language. All of this occurs by focusing on an external unknowable foundation, rather than delving into the space separating the Subject/Object dichotomy.

Calculate the number of people killed in intra-State violence compared to inter-State violence in the twentieth century. Take into account the Holocaust; the Armenian genocide; Stalin’s purges of Kulaks; Mao’s Great Leap Forward; exterminations by Pol Pot in Cambodia; by Idi Amin in Uganda ­ all of the world’s ethnic cleansing ­ you will find that intra-State violence has been far greater in mortality. This means that more lives have been lost by government fiat, than by extra-territorial aggression. In total, the greatest number of lives have been lost legally. Whether as a minority within a State, or a stateless person without, these groups are the most vulnerable in our legal system. The following example of the often misunderstood condition of famine in Ethiopia, shows how easily we lose sight of lawful extermination. The means are not always self-evident: in the following case, the State’s weapon was famine itself.

Malthus’ Lawyers

Usually it is said that periodic droughts cause bad crops and therefore starvation. But it is the elites of starving countries that propagate this idea. It is a false idea. The unjust or mistaken allocation of funds or national property is the most frequent source of hunger.⁴³

Amartya Sen observed that there have been no large-scale famines in democratic states. Adjustments to entitlements (an individual’s command over food supply) are made within what Sen defines as a democratic system. Starvation occurs almost uniformly under undemocratic and dictatorial regimes. Just as failed legal systems, as presented by Camus and Kafka, serve to elucidate a given state’s political system, the famine context serves to elucidate the character of the economic system.

The neo-Malthusian theorists posit that famine relief is only prolonging disaster and perhaps threatens to spread food shortages to more efficient populations. Food donations are counter-productive because population growth requires a positive check, such as famine. Because population inevitably rises geometrically, and because food supplies only rise arithmetically, there will inevitably be a discrepancy that manifests itself in the form of starvation. In contrast, Sen’s point is that we need to understand who, when and why people starve. For Sen, famine occurs when States ignore the voices of its Outsiders. Food sharing cannot occur when one ignores one’s Others and surrenders to the external foundation of Malthusian theory.

The severe 1973-74 Welo famine in Ethiopia saw an estimated two hundred thousand peasants starved to death. Five previous famines had devastated Ethiopia since Haile Selassie assumed power in 1916. Death from hunger was deemed ordinary and in accordance with the natural order of things ­ almost an act of God. Polish journalist Ryszard Kapuscinski in The Emperor documented Haile Selassie’s apathy towards the forces of upheaval gathering outside his palace. Critics saw this text, first published in 1978 and loaded with the biting irony of dissident writing, as an allegory for the situation in Kapuscinski’s native Poland prior to the eruption of the Solidarity trade union movement. Eastern European writers had an advantage in Ethiopia during the 1970s: the revolutionary process that toppled Haile Selassie was a story very familiar to a Pole or a Russian. Kapuscinski was able to paint a portrait of an emperor who was staging an effective show for foreigners.

The Emperor . . . listened to neither the aristocratic grumbling nor the university whispers, believing as he did that all extremes are harmful and unnatural. Demonstrating concern, the Emperor widened the scope of his power and involved himself in new domains, manifesting these new interests by introducing the Hour of Development, the International Hour, and the Army-Police Hour, between four and seven in the afternoon. With the same goals in mind, the Emperor created appropriate ministries and bureaux, branch offices, and commissions, into which he introduced hosts of new people, well-behaved, loyal, devoted. A new generation filled the Palace, energetically carving out careers.⁴⁴

Those within the Palace profited from the Emperor’s power, which was legitimised in the past (history) and the future (development) ­ both indeterminate foundations; those outside starved.

Now, let us turn to the alternative for those inside and outside: the foundationless world

BED PEACE

Turning and turning in the widening gyre The falcon cannot hear the falconer; Things fall apart; the centre cannot hold; Mere anarchy is loosed upon the world⁴⁵

A Nation-State does not exist in a vacuum, but even if we put “nationalism out the window”, we would still encounter the problem that identity itself is based on an unknowable foundation that can only be accessed through representations.⁴⁶ Essentially, we as individuals cannot communicate with one another while we engage in “the savagery of multiple monologues” that seeks the unknowable external foundation. Effective communication can take place in a dialogic communication. The Cartesian project permits the individual to engage in an impossible dialogue with an unknowable foundation. The results of this dialogue are read back to the Outsider in a narrative: a discourse, a monologue, a big speech. There is no room for dialogue and no possibility of understanding one another unless we delve into interplay of voices between the two parties. Dialogue is most difficult because a differend, a gap of dissonance, resides between the partners. They cannot know one another without reference to a vague concept. Each party imposes prejudice based on a concept of an unknowable foundation onto the other’s voice.

All we know is what we perceive, thus the nature of perception cannot be taken for granted. By taking consciousness for granted, we take the foundation of the Self/Other dichotomy for granted. The hypothetical foundation of consciousness allows us to identify our identity vis-à-vis the world.

The question arises: Why do we think we can posit laws that faithfully represent Justice? Jean Baudrillard said, “perhaps we wish to uncover the truth because it is so difficult to imagine it naked.”⁴⁷ This could apply to lawmakers and justice. A naked legal principle is not just difficult to imagine, it is unknowable. We have to assume that it can be uncovered, discovered. Once we begin to imagine naked justice, we confront the possibility that law is indeterminate when naked ­ judges often say, case law “clothes” a legal principle. Naked justice is unknowable, and this is not an effect of the Anglo-American legal system’s puritanical heritage. The foundation for differentiating lawful and unlawful is the transcendental law, which is indeterminate. The foundation for differentiating Subject and Object is the transcendental consciousness, which is indeterminate. We get a sense, a feeling, of what consciousness is from our senses, from our feelings. Consciousness is defined in opposition to consciousness. To grasp what consciousness, the indeterminate foundation of identity, is we humbly engage in an infinite dialogue with our thoughts. Similarly, to begin to bridge the gap between Self and Other: we must dialogue. We must dialogue for Meursault and for K: existentialist anti-heroes who died because of the sins of those on the inside ­ us.

Here’s the rub: the legal norms that make up our current international law do alleviate inter-State violence, but only by inventing Outsiders. If the legal fiction of an international law that makes State Sovereignty its guiding principle dissolves, the more ruthless intra-State violence might well fade. However, if the legal fictions with which we are imbued remain unchanged and unexamined, any prospective universal legal system made under liberal positivist constitutional precepts would still be Kafkaesque, perhaps even Orwellian. The problems inherent in international law are the same as those in all unitary States ­ in the international context, the effects of the legal fictions are simply the most vivid.

The answer lies inside difference. The differend that separates us must be the focus of our endeavours, not the unknowable transcendental foundation. The process can be described thus:

Dialogic partners communicate in a never-ending revision of their configurations of signs. A spirit takes hold. This spirit is not . . . situated in an objectless transcendent realm, which gazes down upon the knower from afar . . . the spirit of the dialogue is embedded inside the discourse itself! The spirit of a dialogue takes form from the heterology of voices which condition the response of one partner to the other. Because their meanings draw from the possibility of a multiplicity of differences, the partners cannot claim to represent some one unifying, bodiless Object. At best, they can respond to the other in a signifying context which takes on living meanings as they embody its signs . . . one can hardly describe the dialogic partner as a passive applier of external objects, such as texts and doctrines.⁴⁸

The dialogue consists of the signs originating from each party’s original language. The two partners are sounding out diametrically opposed discourses, but their salvation is that the partners respond to one another’s discourse and ignore “external givens.” The parties experience each other’s discourse. In the end, “peace will reign in such a retrieved dialogic relation.” In order to live life in peace, we must not engage in monologues with transcendental foundations. It has been observed: “In the end, the love you take is equal to the love you make.” ⁴⁹ Love making requires at least one partner. One will never experience love, or “take love”, by feeding the heart on fantasies. Love, or at least an absence of enmity and brutality, can only be taken by being first made.

Barnes admonishes us to stay away from recorded history and soothing prepared narratives because they always deceive. An enlightening dialogue, or a “retrieved dialogic relation”, is experiential and constantly changing. Barnes counsels: “Tell the truth with your body even if ­ especially if ­ that truth is not melodramatic.”⁵⁰ The evolving dialogue taps the best part of consciousness: the imagination. “Imaginative sympathy” facilitates harmony. As Barnes says:

You can’t love someone without imaginative sympathy, without beginning to see the world from another point of view. You can’t be a good lover, a good artist or a good politician without this capacity (you can get away with it, but that’s not what I mean.) Show me the tyrants who have been great lovers. By which I don’t mean great fuckers; we all know about power as an aphrodisiac.⁵¹

When Meursault was confronted with his imminent execution, he realised the value of his life. Lives fade away, evenings are a kind of melancholy truce if one continually searches for meaning in an external transcendental unknowable. By squarely facing non-Existence, Meursault finally felt the vitality of his own existence and realised that he had been happy, and that he was still happy. He lived life in the moment. He lived life by sensually dialoguing with it continually to the point that time was irrelevant. Time truly is cognitive and abstract, and Meursault lived bodily ­ by his senses alone. The Outsider shows that Life and Death are a dichotomy. Meursault’s senses came alive when he was close to death in the altercation with the Arab. He reckoned that his mother felt liberated and vital by ignoring death by taking a fiancé late in life and pretending to start again. She ignored the external rules of convention that told her to live alone in a home for the aged. She freed herself from “odious courtesies”⁵² the “melancholy truce”⁵³ by standing outside it.

If all that is external to us is “benign indifference”, then we can place all our hopes in the immediate world. We can find our identities by dialoguing with others. The only transcendence that we will know will be in dialoguing with others. The only Heaven or Hell that we will know will be in dialoguing with others. Our identities are simply signs in the night sky. We exist only in opposition to the contrasting backdrop. If we cease our search for a transcendental Truth, Love, or Justice, we can look to our fraternal others for imaginative sympathy. This will be a form of anarchy loosed upon the world because we will be foundation-less. This anarchy, however, is inevitable because foundations are fantasies.

When the external foundation fades into oblivion, a polyphony of human relations will be our only endeavor and our senses our only guide. By wading into the dissonance of the polyglot, we will communicate through immediate experience. An individual’s expression will not be translated through a foundational principle. A rapprochement between the Self and the Other will logically occur when the entities define themselves.

The point of existence can be found in difference, not in an external foundation. The best way to find meaning is in dialoguing with Others. The ever-changing dialogue will be based on the immediate senses because no objective foundation will be accessed to re-present one’s voice. The dialogue is conducted through our immediate lived experience in the primary voice, not through fantasies that translate and contort our primary voice. By engaging in dialogues with the Other to know ourselves, sacrifices in the name of an indeterminate foundation will end. Our only focus, at last, will be the substance in our sympathy, the depth in our feeling.