On the Juridical/Disciplinary Line

I’ve centered the juridical, elevating it to co-equal status with the ritual and disciplinary, while recognizing that the juridical is both a later development (certainly than ritual, but even the disciplinary, if we trace that back to how to arrange and perform rituals) and somewhat tenuous—it’s possible to imagine the juridical being eliminated. In fact, most utopias and dystopias alike are predicated upon the elimination of the juridical and, usually, its assimilation to the disciplinary; for that matter, much of the progressive program is predicated on this as well. It’s easy to see why: while I consider it best to see the juridical as a mode of deferral sidelining the vendetta (and related practices like blood payments) it remains marked by these practices which look barbaric from the standpoint of the juridical itself. It’s impossible to imagine the juridical without some residue of vengeance, and therefore as punishment “meted out” on a kind of scale that would address the resentment of the victim (and the community). The new science of criminology was already raising questions about this in the 19^th century, and in a way, the critique is unanswerable which is why the deck was shuffled a bit to turn the juridical into the more disciplinary questions of “safety” and “prevention.” On those more rationalized terms, why, indeed, should a murderer be punished, if the murder was carried out under very specific and unlikely to repeat circumstances, and the offender shows no proclivity to commit “similar” crimes? Or, for that matter, if we can determine through “scientific means that someone is prohibitively likely to commit violent crimes, why wait until he actually commits them? Indeed, this is just the tip of the iceberg: what if we have the sociological and psychological knowledge enabling us to reliably rehabilitate criminals? Isn’t it enough that the criminal not re-offend? What is gained by “punishment” other than the satisfaction of some archaic bloodlust? What if we can reorganize society so as to prevent most or even all crimes? Why not redirect our energies to doing so? It would be interesting to consider how much social policy over the last 150 years or so has been driven by this irrepressible unease with the “barbaric” residue of the juridical—which, let us also remember, is error-prone in ways and to a degree we wouldn’t tolerate in many other areas of life.

The question of the boundaries of the juridical press upon us in new ways given our institutions’ reliance upon massive data collection and analysis. I remember the passing of the Patriot Act, now reviled as unequivocally by much of the right as it once was unanimously by the left, back in 2002. The hostility to the law is cheaply gained. A large part of it involved remedying a simple problem: the intelligence gathering part of the national security apparatus couldn’t share information with the law enforcement part of that apparatus even in order to prevent a mass casualty attack because the data was gathered without a warrant. The need for a warrant to enter premises or search a person so as to find evidence is obviously critical to the juridical as it has evolved in Western, or at least Anglo-American law. Part of what the juridical does is sacralize the individual in relation to the state: the individual is protected against a rapid and totalizing convergence upon his person which would destroy any attempt to simply provide his own account and have it checked. But what if the state already has this information, gathered by its own agencies or telecommunications companies in the routine course of everyday service provision? Things get more complicated—maybe the state shouldn’t be able to see a particular individual’s phone records without a warrant, but can it be provided with information regarding patterns of activity that stand out in one way or another? And can the pattern-detection that follows serve as evidence that will in turn get you a warrant for that individual’s records? If not, why not? And, if so, isn’t the insistence on a warrant for that person’s records a mere formality? Wouldn’t it be better to change the institution so as to ensure that the data collected and patterns detected are treated in such a way as to provide the suspect or accused with adequate means for challenging institutions of justice? And in that case, would those changes necessarily take on a recognizably juridical form? Maybe it would entail generating a range of patterns and recalibrating probabilities so as to generate possible accounts that might exonerate the accused. But “exonerate” if probably the wrong word here—what would happen is a lessening of the probability that that person poses a danger that militates in favor of his removal from society, which puts us outside of the frame of guilt vs. innocence. And the goal wouldn’t necessarily be justice but, rather, accuracy—after all, if the focus centers on the wrong person, it’s off the right person.

Similar questions emerge in the area of health care, also now dependent on massive data gathering, sharing and analysis—and in ways that it’s very difficult to oppose. It’s obvious that patterns of “health-events” occur across the world in ways that only very extensive analysis could get on top of. But, of course, gathering data en masse just means gathering the data of billions of individuals, each of which might pose health risks to others or, for that matter, encountering risks to themselves they haven’t considered or checked for. The concern for “privacy,” a rather modern and tenuous juridical category, in this and other areas of life will be difficult if not impossible to maintain. Those determined to maintain some semblance of privacy will be far more likely to seek technological rather than juridical solutions to what they see as unwarranted intrusions, such as computing networks that enable you to retain control over your data. This might put individuals in all kinds of confrontational situations in relation to various authorities, but these confrontations are more likely to be played out through technological arms races than in the courts. It’s hard to imagine a broadly shared body of law that would handle these issues.

So, such is the case against considering the juridical a fundamental civilizational, much less human, category. Add to this that from the beginning basic assumptions regarding “intentionality” that are indispensable to the juridical have been questionable on various philosophical grounds; and that the juridical is constituted by the discipline of law, a body of knowledge of texts, precedents and the operation of institutions which draws heavily upon and has contributed significantly to, the “human sciences.” (Not to mention that the juridical still dips into the ritual, insofar as every judgment affirms the center and the originary allocation or nomos, and helped create the norms of inquiry that helped shape the hard sciences.) I have nevertheless insisted on retaining and even elevating the “profile” of the juridical because, for starters, its unavoidable pervasiveness. Nobody, as far as I can see, is willing to surrender it. No one is willing to shift their observations regarding the dysfunctions surrounding us completely onto to the field of the disciplinary—everyone wants to insist on categories like “rights” and “justice.” No one wants to treat their enemies merely as obstacles to some goal that may or may not be eliminable—everyone wants their enemies to be “wrong” and “guilty.” The closest thing to a genuine alternative to the juridical in the modern world has been the kind of biologism that wishes or claims to treat enemies as “parasites” to be removed from an otherwise healthy body. But even these political movements have not lived up to their word and moved beyond notions of rights and justice—there is always a need to issue “accusations” which presuppose the possibility of a trial at which the accused would be found “guilty.” At a certain scale, or below a certain threshold, it is extremely difficult to move from the juridical to the disciplinary—someone whose child has been raped or murdered will not, except for very rare and probably insincere exceptions, be able or willing to treat such an event as similar to, say, an infestation of insects which proper maintenance and an array of pesticides will rid us of (even though, of course, infestations, pandemics, etc., can cost a lost more lives that human rapists and murderers). We are on a scene with humans in a way that we aren’t with vermin or germs, and the approach of a state that would genuinely move us out of the juridical once and for all would be to treat the father seeking “justice” as just as pestilential as the criminal and suppress the primitive reactions all around—including (why not, if justice is not an issue?)—the same kind of measures one adopts in addressing plagues and infestations. I would, again, insist that it’s indeed possible, if repulsive, to imagine going “all the way” in this direction, but it’s very difficult to do so because all of the actions required to eliminate “justice” as a category would lead to such an accumulation of “injustices” as to make the task Sisyphean. We cannot “rid” ourselves of the notion of “justice” or some equivalent because we cannot rid ourselves of resentment, which in turn is some complaint made to the center that terms it has laid down have not been adhered to—as they never can be, hard as representatives of the center may try. There is always an imperative gap, and there will always be someone not doing or giving or receiving their share.

So, we will have the juridical with us, for better and worse, into the foreseeable future. In that case, we have an interest in strengthening it and minimizing the anomalies I’ve been pointing to and that are a large part of the crisis in Western orders. My way to do that here would be to follow the juridical back into its pre-juridical elements, even back to the originary scene, where everyone, for the scene to be complete, must get a part of the whole. Not an equal part, I would say—for one thing, who would be measuring—and everyone, to get their part, would have to deploy and be willing to “represent” the sign in joining the fray. Certainly the ritual established subsequent to and commemorating the event would ensure everyone get a part. So, ritual distribution itself includes a way of making a “claim,” which is to say, expressing resentment—the ritual itself would have been violated. This may not look much like a court case, but having a claim on “your part,” however that is ascertained, provides the link. The juridical is in fact an imperial construct, intervening in the reciprocity of families, clans and tribes, and that reciprocity also contains certain limits that anticipate the juridical, but in this case the reciprocity falls on the head of the family, clan or tribe, to whom something is “owed.” And, no doubt, within the group, an allocation of “claims” is made. The imperial institution of justice is therefore quite hostile to the heads and chiefs and the extended kinship relations they embody. This is a hostility that must have played out differently in different places and times, over the course of centuries, with justice between the clans, whose violence the king could no longer tolerate, being the initial step. This hostility has something of the vendetta to it, and it should therefore be ended, in the name of justice.

The alternative to isolated individuals referencing vague and unclearly defined “rights” against increasingly global institutions is the institution of justice in the team. Everyone really does already “belong” to various teams, which do sometimes gather and control data and negotiate with other institutions on our behalf. If your employer is negotiating with a health care provider on behalf of the entire company, it is your employer who is the juridical actor, with “rights” and seeking “justice.” How your employer allocates agency and voice within the institution is another question—within that frame, you may be a juridical agent, with your employer as final judge. The juridical in this case targets primarily the team, analogously to the clan or family (and revivified clans and families might be among the teams), and only secondarily if at all the individual. If you leave one team it’s to join another, under terms that are themselves subject to some juridical order mediating between the teams. No one is unhoused or “untented,” which is really almost always the case now already. This is constraining, of course, but the compensation might be that it is fairly easy to establish new teams—generally as spin-offs of existing teams (everyone’s provenance is traceable). If you’re on a small team than perhaps, like small countries, it forms alliances and “vassalage” type relations with larger teams. Teams will be disciplinary outposts of the overall tributary order, providing intelligence to the center, but the “part” they have in the “all” will always be subject to review from the center, with a focus on the division of labor and responsibility, on the principle that one must have the power to carry out one’s responsibilities. If there is teaming (and breeding) all the way down, questions of violence against property and person, along with fraud, slander and other offenses become questions of jurisdiction and arrangements across jurisdiction, always anthropologically (or anthropomorphically) informed by the knowledge that not only can the vendetta always return but that the juridical itself can be perverted into a vehicle of even more vicious kinds of vendettas. If leaders are responsible for members of their team, they will see to it, either via internal arrangements (if offender and victim are both members of the same team) or insist “diplomatically” (if the offender is of another team) that fully demonstrative, i.e., pedagogical, use be made of treating the offender. Our current, “carceral,” order is not the only possibility, but some form of “justice” needs to be done and seen to be done—some high-tech version of the Mark of Cain might both tightly constrain while protecting from unauthorized violence individuals upon whom disruptive vendettas might converge (and whom no one wants on their team). Making punishment a scene, including it under the aesthetic, is preferable to the current sequestering of it under the authority of the social sciences. “Justice” will become a new kind of juridical-aesthetic-pedagogical discipline, aimed at getting all the teams on the same page in order to ensure that injustices at lower levels don’t “infect” the relations between teams.