Reflections on the foundations of law

Reflections on the foundations of law

Bianca Stone, draft sketches for Anne Carson’s
Antigonick, 2012. Source: Tongue Journal


What is the foundation of law?
Is there truly a topos, where we can locate these keystones or a moment of establishment? Are these rules invented ex-nihilo?

But did that ever happen to us? […]
Since when?
I’d forgotten. […]
And when was that?
I don’t know.
But no later than yesterday—
(violently). Don’t question me! The blind have no notion of time.
The things of time are hidden from them too.

[Samuel Beckett. (1994). Waiting for Godot? Tragicomedy in 2 acts. New York: Grove Press.]


Was law somewhere or someday invented?

what they call law did not begin today or yesterday
when they say law they do not mean a statute of today or yesterday

[Antigonick (sophokles) (A. Carson, trans.). (2012). Tarset: Bloodaxe Books. p. 17]


Did the gods establish law? What about this law-preserving violence that supports law? Does supporting differ from founding?

ΓΡΙΑ: Μέ τo πρέπει δέν προκόβεις. Πρέπει νάχεις κι άρματα. […]

[Αλεξάνδρου, Ά. (1960). Αντιγόνη. Θεατρικός διάλογος. Αθήνα: Καινούρια εποχή. σ. 6]


There is something terrifying inside all these rules. They are simple, without any complexity, and effective at the same time. Maybe this is why they can become funny: Law is pompous, really confident about descriptions; certain regarding causes; assured about meaning; steadfast regarding results. Law is in a way funny.
Law asserts to rule the world. To include within its normative content every possible expression of the word.

Kreon: no let’s split hairs a while longer
I’d say
you’re the only one in Thebes who sees things this way wouldn’t you
you’re autonomous

Antigone: actually, no they all think like me
but you’ve nailed their tongues to the floor

[Antigonick (sophokles) (A. Carson, trans.). (2012). Tarset: Bloodaxe Books. pp. 17-18]


What about time? Law is effective in retrospect. Law is effective exactly because it predicts its effectiveness. Law’s appropriate verb is “foresee”; Law’s appropriate predicate is “will have foreseen”.

The word “enforceability” reminds us that there is no such thing
as law { droit } that doesn’t imply in itself, a priori,
in the analytic structure
of its concept,
the possibility of being “enforced,” I applied by force.

[Derrida, J. (1992). Force of Law: The “Mystical Foundation of Authority.”
In Deconstruction and the Possibility of Justice. New York: Routledge. p. 6]


Is the enforcement, or this a priori, by force application, the secret foundation of positive law? Is legal consequence, punishment, privileges, rights – even as promises –, or this hidden a priori, the driving force of law?

[…] this law to come will in return legitimate, retrospectively,
the violence that may offend the sense of justice,
its future anterior already justifies it.

[Derrida, J. ibid. p. 35]

But isn’t tautology the phenomenal structure
of a certain violence in the law that lays itself down,
by decreeing to violent, this time in the sense of an outlaw,
anyone who does not recognize it?
Performative tautology or a priori synthesis,
which structures any foundation of the law
upon which one performatively produces the conventions
that guarantee the validity of the performative,
thanks to which one gives oneself the means to decide
between legal and illegal violence.

[Derrida, J. ibid. p. 33]


What if we shift our focus from the appearance of law to the enactments of its imperatives? From the form of positive law, as an abstract, enforceable, normative syntax to the infinite performative acts that justify law retrospectively. Maybe at these scattered loci we could perceive what we tend to fantasise as the origin, the arche of positive law. Perhaps these are the experiences, the meanings, the acts, positions, thoughts and emotions that law codifies and, by this gesture, misappropriates and resonates:

“I suggest these enactments as the secret ingredient of law.”


Where are all these corpses from?

[Samuel Beckett. (1994). Waiting for Godot? Tragicomedy in 2 acts. New York: Grove Press.]


Why does law enforcement appear as phantasmagoria?

I’ll kill her
let her call on Zeus and blood and kinship who cares
should I nourish disorder within my own family no I should not my public is watching

[Antigonick (sophokles) (A. Carson, trans.). (2012). Tarset: Bloodaxe Books. p. 28]


Whose letter is the letter of the law?

For me it was not Zeus who made that order.
Nor did that justice who lives with the gods below
mark out such laws to hold among mankind.
Nor did I think your orders were so strong that you,
a mortal man, could overrun the gods’
unwritten and unfailing laws.

[Sophocles. (2013). Antigone. In M. Griffith & G. W. Most (Eds.), & E. Wyckoff (Trans.),
Greek Tragedies. Volume 1. Chicago: The University of Chicago Press. pp. 450-455]


There is no greater wrong than disobedience.
This ruins cities, this tears down our homes,
this breaks the battlefront in panic-rout.
If men live decently it is because obedience
saves their very lives for them.
So, I must guard the men who yield to order,
not let myself be beaten by a woman.

[Sophocles. (2013). Antigone. In M. Griffith & G. W. Most (Eds.), & E. Wyckoff (Trans.),
Greek Tragedies. Volume 1. Chicago: The University of Chicago Press. pp. 673-677]


Kreon: here are Kreon’s verbs for today

here are Kreon’s nouns
Ship of State

[Antigonick (sophokles) (A. Carson, trans.). (2012). Tarset: Bloodaxe Books. pp. 10-11]


What if this is “Antigone’s claim”: not another – other than Creon’s order – source of law. But to reveal the fact that law establishes its order by “encircling”, appropriating and taxonomizing people’s spoken words, sediments of meanings, heterogeneous experiences and tropes, and makes them seem its absolute, “coherent” field of norms. But words and letters are dispensable; elements of affinities; of an endless play; différance.


Athina Papanagiotou