Contingency, Responsibility and the Law: A Response

Catherine Mills
University of New South Wales

1. In his paper, Stephen Muecke develops an ethnography of contingency that strives

to destabilize knowledge production by introducing itinerancy into philosophy. Were
asked to suspend faith in the usual philosophical and anthropological models of
thought and knowledge and listen instead to stray facts, experiments in words and
images. Hermes, here, is our guiding light: moving fast, with winged words for those
who care to listen to the message that emerges from background noise. And the
message borne by this paper is an intransigent refusal of moral responsibility in all its
forms and an affirmation of the rule of law, of a law that is morally indifferent and
external (35).
2. But there is more: there is also an affirmation of another kind of responsibility so
it is not responsibility that is being rejected, simply moral codification. Yet, there is
another kind of responsibility, distinct from both moralisation and indifferent legality.
This is an affect-generated responsibility, underpinned by the idea that one can only
be responsible for the tangible, what strikes us in the present and within the orbit of
this secular world (34). This kind of responsibility is not legislatable, since it derives
solely from affectivities, which are immanent to the sociability of the community body
but are not its defining identity. Even so, this community, this transient and embodied
community, responds to the morally indifferent and external laws (35) that
circumscribe it.
3. The stray fact that best illustrates this community and its bond with the law is that
of the kings single word - lapabe - which drives the crowd to an orgiastic frenzy from
which only the king and his wives are immune (24). Of course, this scenography might
be understood as an example of the sovereign exception noted by Carl Schmitt and
made much of by Giorgio Agamben. This word spoken by the king, the sovereign, is
sufficient to suspend the normal moral order and declare a state of exception in which
there is no rule, leading to a confused, universal mingling, the slaves with the free, the
common people with the nobles (citing Brown, 24). Hence, this sacred order of the
king, against which no-one could protest, establishes the king as sovereign in his
decision on the existence of a state of exception and the suspension of the rule of law.
One could quibble here about whether this amounts to a temporary suspension or a
regal reversal (23). But in either case, this is not the point of the scene within this
paper. Rather, this scene confirms the existence of a different kind of responsibility
one which emerges in a transient, embodied community and which entails a rejection
of moralism but which nevertheless negotiates with the rule of law. We might
speculate that there is in fact a kind of hermetic bond between this profane pleasure
and the morally indifferent law. And perhaps its precisely this bond that allows the

king to be so amused at the indignation of missionaries in their religiosity and moral

tendentiousness.
4. Keeping an eye on this picture or scene, I want to make three brief points about this
affirmation of a responsibility that emerges through affect and is realised in practical
calculations made in contingent situations. First, I wonder if we can call this a
specifically ethical responsibility over and against religious moralism, which Muecke
perceives in Agambens formulation of an infinitely great, unassumable responsibility.
Against understanding the orgiastic as anomic or exceptional, then, we might follow
Michel Maffesolis analysis in his sociology of the orgy, where he argues that the
orgiastic or passional is actually constitutive of the social bond, but more importantly,
is also the domain of an ethical immoralism that contradicts or overrides the normal
moral order. He writes that orgiasmallows for the structuring or regeneration of
community. Contrary to a morality of "ought to be", the orgiastic refers to an ethical
immoralism which consolidates the symbolic link of all societyTaking the form of
paroxysm, the orgy is the condensation of the sympathetic accord that exists with the
cosmos and with others. (Maffesoli 1993: 3, 5) In this way, a passional ethical
immoralism where ethics is understood as the ethos of the people breaks apart the
order established in, for instance, the often diabolical integration of medicine,
moralism and policing.
5. Second, Muecke argues that the law has to be impartial, impersonal and specific in
function so that we can trust it without the voice of moral responsibility spreading
like a cloud over any possible domain (32). Yes, but is that what the law is in its
actuality? While it might be that that is what the law must or ought to be, is that what
it is? Isnt this characterisation of the law, as if that is what the law actually is, as
utopian as the forms of politics being criticised? The problem that underlies this
characterisation of the law is not only a question of an adequate separation of morality
and legality, such that one can oppose these two concepts, affirming one and rejecting
the other, but is rather a question of the specific force of law. What is the force of the
sovereign such that the single word, for instance, is enough to constitute a community
born in psycho-sexual frenzy? Perhaps more importantly, given the contestability of
the thesis regarding sovereignty, exceptionality and the actual existence of these twin
systems in our globalized world, can we ask what the force of law is apart from the
sovereign word? If we affirm that a morally indifferent law must be upheld in order to
stave off an unbearable religiosity in responsibility, can we be certain that the law has
any force apart from any religiosity? (see Derrida 1998)
6. These questions bring me directly to the third point that I want to make, which also
extends into a more general point about Agambens work. If one wants to affirm the
importance of the law over and against the criticism of the increasing juridification of
society and politics made by Agamben and others, then after Nietzsche - one must
deal with the question of nihilism. In approaching the question of the relation between
moralism and legality through reference to early modern debates on natural law and
transcendental metaphysics, exemplified in the intellectual conflicts of Leibniz and
Pufendorf and their followers, Muecke affirms a kind of Pufendorfian conception of
positive law as morally independent, operating within the the orbit of this [secular]
life of human sociality (see Saunders 2002; Hunter 2001). Within this, the law is
formulated as an external coda, and its domain of operation is restricted such that it

does not intrude on or operate through the conscience of the individual, but has the
purely secular and regulatory function of ensuring peaceful co-existence.
7. While appealing, this affirmation avoids the difficult question of the grounding of a
morally neutral law, and in doing so may on the one hand all too easily lead back to
the decisionistic tradition within which Schmitt elaborates the self-grounding force of
sovereignty, or on the other, (irresponsibly?) evade the question of the political
decision in a faith in procedure. But, amongst other critical thinkers, Walter
Benjamins critique of Schmitt alerts us to the difficulties in both these positions. In
particular, what Benjamin makes clear is that the loss of transcendence on the part of
the law contributes to a general condition of nihilism, in which the state of exception
in which the law operates in suspension - effectively becomes the rule (Benjamin
1970: 255).
8. It is precisely this recognition that underpins Giorgio Agambens critique of the
increasing juridification of life: it is not merely that the law has been overextended in
its domain of operation, such that it encroaches on more and more domains of our
lifeworld, but that it has come to be wholly identified with life itself. Hence, in
reference to a conflict between Scholem and Benjamin over the status of the law in
Kafka, Agamben argues that the biopolitical status of law, in which law is
indistinguishable from life itself, means that law is effectively in force without
significance (Agamben 1997: 51). By this, he means that in losing all transcendence
the law becomes wholly identified with life and operates solely through the structure
of the ban, such that the law simultaneously applies and suspends itself in its
application. Agambens argument here, then, is not merely one of degree; it is not
simply that he sees the extension of the law as been more complete than other critics
of juridification. Rather, the identification of life and law has the consequence that the
form of law itself is transformed. In taking up Benjamins insight that the exception
has become the rule, he effectively posits a crisis in legitimation of the law. This crisis
takes the form of nihilism, and this he argues is the danger that is becoming
increasingly evident in the violence that so frequently haunts modern democracies.
9. Consequently, taking aim at his more deconstructive contemporaries, Agamben
argues that the task of contemporary thought in not simply to recognize the state of
abandonment in which we persist, but to overcome it. Within this he claims that it is
necessary to distinguish between two forms of nihilism. (Agamben 1999a: 171) The
first, which he calls imperfect nihilism nullifies the law but maintains the Nothing
[that is, the emptiness of the law] in a perpetual and infinitely deferred state of
validity. (Think here of Derrida and particularly his essays on messianism and the
force of law; see Mills, 2003 and forthcoming). The second form, which he calls
perfect nihilism overturns the Nothing, and does not even permit the survival of
validity beyond meaning; perfect nihilism, as Benjamin states, succeeds in finding
redemption in the overturning of the Nothing (cited in Agamben 199a:171). The task
that contemporary thought is faced with then is the thought of perfect nihilism, which
overturns the law in force without significance that characterizes the virtual state of
exception of Western politics.
10. Importantly, the overturning of the law does not simply mean instituting a new law,
and nor does it mean reinstating the lost law of a previous time to recuperate

alternative heredities. (Agamben 1999b: 153) Both of these modes of progression

would merely repeat the political aporia of abandonment that underpins bio-sovereign
violence. Rather, the task of redeeming life from imperfect nihilism requires both the
destruction of the past and the realization of that which has never been. (see
Agamben 1999a, 1999b; Heller-Roazen 1999) As Thomas Carl Wall (1999: 156)
writes of Agambens conception of the coming community, without destiny and
without essence, the community that returns is one never present in the first place.
Similarly, it is only the inauguration of that which has never been, the not having been
of the past, that will suffice to overturn the Nothing maintained by the law in force
without significance and thereby restore human life to the unity of bios and zoe, a
unity that itself has never yet been. As Agamben states this what has never
happened is the historical and wholly actual homeland of humanity. (Agamben
1999b: 159; also see Agamben 1999c)
11. It is also in this context that Agambens rejection of Foucaults gesture toward a
new economy of bodies and pleasures takes on its real significance, for he sees this
gesture as merely repeating the aporia of the sovereign ban and the bloody violence
that attends it. Against Foucaults provocative remarks at the end of History of
Sexuality (Vol. 1) , Agamben argues that the body is always already a biopolitical
body and bare life, and nothing in it or the economy of its pleasure seems to allow us
to find solid ground on which to oppose the demands of sovereign power. (Agamben
1998: 187) In doing so, he rejects any notion of immanent resistance and argues
instead for the necessity of a messianic event that disrupts the current nihilistic order
without being of it. Consequently, then, he posits the necessity of the inauguration of a
'happy life', or form-of-life, understood as life restored to an original unity that has
never been. For Agamben, happy life doesnt partake in the distinction between natural
life and political life, and has instead reached the perfection of its own power and its
own communicability; (Agamben 2000: 114-115) happy life is life lived in the
experience of its own unity, its own potentiality of being-thus. (Agamben 1993) As
such, happy life amounts to the perfect nihilism necessary to the fulfilment of the task
of overturning the law, which brings about the small displacement that separates the
messianic from our time. (Agamben 1999:164)
12. This opposition between Foucault and Agamben can be seen as indicative of a
fundamental opposition in contemporary political theory around the question of
political futurity. Without taking up this problem here, one can see that there are
numerous problems in the political eschatology that Agamben constructs through the
notion of happy life. Because of these problems, Mueckes not altogether explicit criticism of Agambens resolution of the aporia of modern democracy in the euporia
or felicitous way' (Agamben 1999d: 217; also see Deladurantaye 2000) of redemptive
unity can be affirmed. Nevertheless, one ought not be too hasty in re-affirming the rule
of law as a necessary consequence of a critique of Agamben: the retreat to a law
presumed to be morally indifferent is after all simply the reverse side of this euphoric
resolution, and as such, amounts to a symmetrical form of utopics. Instead of these
options, then, perhaps more is yet to be gained from considering the ethos of the
people in all its passional violence and contingency as the fount of responsibility. This
may well entail returning to Foucaults provocation, not as a romantic gesture to the
intransigent resistance of bodies and pleasures as it has frequently been read, both
critically and laudatorily, but as a recognition of the immanent and errant potential in

life itself to evade and undermine the force of law.

Catherine Mills was Lecturer in Philosophy at The Australian National

University in 2003 and is now Lecturer in Philosophy at the University of New
South Wales. She specializes in Ethics, Feminist theory and contemporary
European Political Philosophy. Her current research projects include a book on
biopolitics, as well as research on the ethical implications of biotechnologies,
especially new reproductive technologies. She has recently published in The
Journal of Political Philosophy, Australian Feminist Studies, Borderlands and
elsewhere. Email: catherine.mills@unsw.edu.au
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