Friday, April 01, 2005

The limit of the law

L'affaire de Schiavo had made me think about the curious relationship between the law and its exceptions. Since the law qua Law is, by necessity, a generalizing system, there will always be cases that fall through the cracks. In other words, because law is a set of rules, it will inevitably either capture too little or too much in its logic. For example, the high standard of proof for criminal cases ensures that some guilty people will be found innocent. The Schiavo case could be construed as proof of the law; it's the miscarriage of justice that constitutes the law as law. After all, for the law to be law, there's gotta be a miscarriage of justice. As you can see, I haven't found a clear way to articulate this. But, at a minimum I figured there was some interesting stuff about law we could ferret outta this.

It was good to find this article U.Chicago theorist Eric Santner, who hooks up l'affaire with Gitmo in a pretty nifty fashion:

With respect to Guantanamo Bay, to cite the most obvious example, the Bush administration has argued that the detention centers there effectively occupy a lawless zone, a site where a permanent (if undeclared) state of exception or emergency is in force. The prisoners have been stripped of all legal protections and stand exposed to the pure force of American military and political power. They have ceased to count as recognizable agents bearing a symbolic status covered by law. They effectively stand at the threshold where biological life and political power intersect. That is why it is fundamentally unclear whether anything those in power do to them is actually illegal.

If places like Abu Ghraib and Guantanamo Bay represent sites where life, lacking all legal status and protection, stands in maximal exposure to Pure political power, then the case of Terri Schiavo—and here I am thinking of the law passed by Congress that was intended to keep her alive—offers us a strange reversal. We find here the paradox of an intrusive excess of legal “protection” that effectively serves to suspend the law (the judicial process running its course in the Florida courts) and take direct hold of human life. A law designed to lift a single individual out of an ongoing judicial process is essentially a form or caprice, law in its state of exception (a sanctioned suspension of legality).
(HT: Charlotte Street)