Since terms such as “postmodern,” “postcolonial,” “hybridity” and the call for “cross-cultural circulation” or “diasporic cultural innovation” often detour the historical, the relation between the desires of modernity and the historical structures that sought to contain such desires (slavery, imperialism, racism) need to be interrogated further. Through the tactics of postmodernity, normlessness and indeterminacy are redefined as freedom, growing social disintegration is normalized by bureaucratic manipulation, and historical consciousness becomes paralyzed into a permanently frozen present. What are the implications of privileging culture over experience and hermeneutics over history? Given what I take to be the expurgation of the historical past and the condemnation of the real or the local in the rhetoric of cosmopolitan humanism, I have sought in my recent work to exhume the mixed disciplinary materials necessary for understanding the legal history of incarceration, stigma, and control. It seems to me that the historicization of legal concepts within the concrete political situation, in redefining and reactivating their meaning, can-as if a kind of Hegelian Aufhebung-guarantee the concreteness of such concepts.

To say that law uses and represents history is also to know how it becomes a site of memory and commemoration. How does law materialize memory? If law is, as I argue in “Legal Slaves and Civil Bodies,” a locus of embodied history-where words over time coerce a commitment to order-how do we define that order and what are the limits of its representations? I concentrate on three sites of dispossession: civil death, slave law, and cruel and unusual punishment. In choosing these sites (which will constitute the three parts of my book Held in the Body of the State), I consider the commands of written law as an alternative history, a text that haunts the ideal of civil life in the Americas. In introducing this thesis, I am also driven by the insistence that statute and case law were as important as social custom or belief in upholding the racial line, in effecting strategies of exclusion.

These questions underlie my project of reconstruction: What are the conditions under which categories of identity are restructured? How arbitrary are the legal systems of racial classification that emerge over different historical periods? I offer this paper in the hope that its attempt to read a philosophy of personhood into the rules of law will demonstrate how two apparently distinct discourses-expulsion and dehumanization-are joined, or, to be more, precise, operate along a continuum. In reconstructing these narratives of unfreedom, I follow Agamben’s appeal in Homo Sacer not only to “return thought to its practical calling,” but, perhaps more importantly, to reconsider the “tenacious correspondence between archaic and modern.” Speaking broadly, I suggest that in legal documents and under legal forms the social arrangements of remote times are made visible to us.

Security, legitimacy, reasonableness, and necessity. These words recur in the Code noir of the French islands, the West Indian slave laws of the eighteenth century, the black codes of the American South, contemporary legal decisions promoting prisoner incapacitation, and, now, the detention of “aliens” suspected of terrorism. Narratives of the past, once brought together and remembered in law, delineate a semantic genealogy of slavery and civil incapacity. The ongoing disintegration of formal law and the increasing subordination of the judiciary to the Washington central authorities-initiated with the new Anti-Terrorism Act (known as “The Patriot Act,” which carries to an extreme the rules for containment of “criminal aliens” already elaborated in Clinton’s 1996 “anti-Terrorism Bill”)-continue to threaten the weak, the socially oppressed, and the racially suspect. How, then, should we speak about the multiple forms of unfreedom, the archaic vessels for new terrors that we confront today?

abstract of Legal Slaves and Civil Bodies,Joan Dayan (via igather) (via fuckyeahtheorists)

I tell everyone I know to read this essay, and really anything Joan/Colin Dayan has ever written; it’s an unbelievable body of work.

Notes

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