The totemic authority of the court

Law and Critique

Volumn 11, Issue 3, 2000, Pages 301-328

  Barshack, Lior ^a  

^a INTERDISCIPLINARY CENTER   (Israel)

Author keywords

Ceremony; Court; Magic; Religion; Ritual; Sacred

Indexed keywords

EID: 27144541079     PISSN: 09578536     EISSN: 15728617     Source Type: Journal    
DOI: 10.1023/A:1008957232385     Document Type: Article

References (82)

1. V. Turner, From Ritual to Theatre (New York: Performing Arts Journal Publications, 1982). Geertz' article on courts does not count among his most innovative works and at any rate does not analyse the court as an institution of civil religion.
2. C. Geertz, "Local Knowledge: Fact and Law in Comparative Perspective", in Local Knowledge (London: Fontana, 1993), 167-235.
3. Durkheim describes the passage from mechanic to organic solidarity as follows: "Just as social similarities give rise to a law and a morality that protect them, so the division of labour [i.e., organic solidarity] gives rise to rules ensuring peaceful and regular cooperation between the functions that have been divided up". The Division of Labour in Society, Irans. W.D. Halls (New York: Free Press, 1984), 338.
4. E. Durkheim, The Elementary Forms of Religious Life, Irans. K.E. Fields (New York: Free Press, 1995), 223.
5. The concept of "totemic function" is Legendre's. It implies a very broad understanding of totemism. There is no longer distinction here between totemism and ancestor worship, for example.
6. P.M. Worseley, "Totemism in a Changing Society", American Anthropologist 57 (1955), 851-861.
7. As Fortes writes, "... the various component parts and elements of the social structure - communities, local groups, moieties, sections, and so on down to particular persons - are bound to localities by totemic allegiances, not by economic or political forces." M.Fortes, Kinship and the Social Order (Chicago: Aldine, 1969), 120.
8. Every member of the group, according to Freud, identifies with the primal Father from the beginning of life. On mythical identification, see "The Ego and the Id", in The Standard Edition of the Complete Psychological Works ofSigmund Freud, vol. 19 (Eondon: The Hogarth Press, 1953-1974), 1-66.
9. "Thus when the Ashanti define the lineage as being 'one person' they are thinking of it as if the founding ancestress were eternally present in her descendants, multiplied and replicated but still one and the same, much as a tree (to which a lineage is often compared) is the same tree however many branches it proliferates." Fortes, supra n.6, at 172.
10. And see Gierke's immanent, "communitarian", conception of the corporate, opposed to the hierarchic conception presented here. Herman convincingly criticizes Gierke's conception; H. Herman, Law and Revolution (Cambridge Mass.: Harvard University Press, 1983), 220.
11. According to Maine, the definitive characteristic of the corporate is continuity across generations. "It seems, in truth, that the prolongation of a man's legal existence in his heir, or in a group of co-heirs, is neither more nor less than a characteristic of the family transferred by a fiction of the individual. Succession in corporations is necessarily universal, and the family was a corporation. Corporations never die. The decease of individual members makes no difference to the collective existence of the aggregate body, and does not in any way affect its legal incidents, its faculties or liabilities. Now in the idea of a Roman universal succession all these qualities of a corporation seem to have been transferred to the individual citizen." H.S. Maine, Ancient Law (London: Murray, 1861), 207. As Fortes writes, the corporate organization "is the institutional medium through which the metaphysical dogma of the perpetuity and unity of the lineage blood is translated into jurai and moral process." Fortes, supra n.6, at 184. On the corporate see Fortes, supra n. 6, at 74-75, 290-308, 119-121.
12. Roman law at the time of Justinian recognized the state as a corporate. See P.W. Duff, Personality in Roman Private Law (Cambridge: Cambridge University Press, 1938).
13. As Legendre writes, "The sanctification of texts means that no system, even those organized in a wholly monarchical manner, can dispense with a formalized rhetoric, designed to make it understood that for legally legitimate institutional power to address itself in a normative form to its subjects, it must speak in the name of its absent source." P. Legendre, Law and the Unconscious (Houndmills: Macmillan, 1997), 209.
14. W.J. Witteveen, "Enacting Law: Ritual Performances in Dutch Political Culture", in J.R. Lindgren and J. Knaak, eds., Ritual and Semiotics (New York: Peter Lang, 1997), 193-219, 209.
15. Legendre, supra n.12, at 202. Legendre wrongly argues that the judge is a representative because he is placed within social structure. "The judge does not descend from an Llsewhere which is inaccessible to Reason; the judge is a representative, put in place by the forms. The judge is the social representation of the cause of Interdiction." Legendre, supra n. 12, at 166. "Both in civil and penal law ... the judge does not occupy a sacramental position ... the judge occupies a position of office, or of function". Legendre, supra n.2, at 172. "Translated into the perspective of this work, fidelity to the logic of places, in so far as it is the principle of non-confusion of the interpreter and the founding Reference, is nothing other than the recognition of the representation of the Father as the image which presides over the distinction of the places of discourse and, in consequence, over the disposition of the elements and materials of interpretation." Legendre, supra n.12, at 189. "... neither of the casuistic places is the place of the sovereign, the hermeneutic place of the original Author, the absolute place of the staging of Reference. Put differently, neither the judge nor the analyst incarnate the foundational axiom of interpretation; or, to recollect the mediaeval metaphor for the State, neither can pose as living writing." Legendre, supra n.12, at 200. While Legendre is right to point that the judge is placed within social structure, this does not prove that the judge is a representative. Placed simultaneously within and without structure (as an extension of the big Other), the judge constitutes precisely the magical cornerstone of the religious order of representation. As Legendre himself writes, "... in underpinning the montage, the judge as lynchpin gives stability to the power of Reference." Legendre, supra n.12, at 186. As we shall see, religion is grounded in a domain of magic, representation in a domain of presence and separation in a domain of fusion that sustains it. On jurai presence,
16. see P. Goodrich, Languages of Law (London: Weidenfeld and Nicolson, 1990), 53-111.
17. On the very idea of a sacred place, see B.Z. Kedar and R.J.Z. Werblowsky, eds., Sacred Space: Shrine, City, Land (Macmillan: Houndmills, 1998).
18. As Le-Goff defines the magical and the religious, "Le sacré, c'est ce qui exprime et le plus souvent crée (la concrétisation est une sacralisation) un lien avec les pouvoirs surnaturels, la participation àces pouvoirs et, s'agissant d'une société chrétienne, un rapport direct avec Dieu, mais plus qu'une délégation de pouvoir (signifiée surtout par le couronnement: rex a Deo coronatus), l'insinuation de forces surnaturelles par l'onction et la manifestation de l'octroi de certaines de ces forces par la remise d'insignes symboliques du pouvoir. Le religieux ... c'est tout ce qui concerne le fonctionnement régulier du sacré ici-bas, essentiellement assuré par l'Eglise." J. Le Goff, "Aspects religieux et sacrés de la monarchie Française du Xe au XHIe Siècle", in A. Boureau and C. Ingerflom, eds., La royauté sacrée dans le monde chrétien (Paris: École des Hautes Études en Sciences Sociales, 1992), 19-28, 20.
19. M. Mauss, A General Theory of Magic, Irans. R. Brain, (London and Boston: Routledge and Kegan Paul, 1972). Durkheim developed this distinction before Mauss.
20. Kings and presidents that are devoid of considerable actual authority also enact totemic authority, but to a lesser degree than the court.
21. On the idea of the missing leader, see C.R Alford, Group Psychology and Political Theory (New Haven: Yale University Press, 1996).
22. "... the interpreter is the bearer of the limit because, by virtue of the rite and function of office, the judge is subjected to Reference ... Thus, by order of his place, the judge appears to us to pay the debt of the limit..." Legendre, supra n.12, at 186.
23. G. Balandier, Le pouvoir sur scènes (Paris: Balland, 1992), 26-21.
24. On ceremony, see the last section below.
25. "Jurisdiction ... is comprised of the exercise of a power of life and death over the subject'' Legendre, supra n.12, at 177.
26. On Hitler's and Stalin's penchant for pompous and artificial scenes of kindness and cruelty see M. Lewin, "Stalin in the mirror of the other", in I. Kershaw and M. Lewin, eds., Stalinism and Nazism, Dictatorships in Comparison (Cambridge: Cambridge University Press, 1997), 107-135, 122.
27. Lewin, supra n.24, at 120.
28. A vague intimation of Otherness at least has to be conveyed by the judge and the law. Judge and law preserve an alien, Other, Thing-like, non-human dimension. The court sincerely tries not to hear the big stories - whether private or public - that come under its jurisdiction. Its Otherness has to be protected from dissolution in the face of drama, personal or historical (personal biographies reproduce mythical narratives). For example, in historical trials that retrieve grand affairs from the collective memory, the symbolic construction of jurisdiction requires a special effort. There is, indeed, a general tension in civil religion between the mythic and the dogmatic. Through its deaf formulas the law aspires to sidestep human dramas that it has, incidentally, stirred in the first place.
29. As Witteveen writes, "... all actors knowledgeable in law act in the firm belief that to every legal problem the answer is in some sense already given ... that the laws are waiting silently in the books to be found, read, understood, in a word, applied ..." Witteveen, supra n. 13, at 208.
30. "There are judges because there have to be authorised interpreters who can stage Reference for the subject. Thus, at a first level of logic, there are judges by virtue of a pure theatre celebrating the principle of causality (in the various forms of the Christian God), and it is from this that the normative effects of the montage with respect to the subject of social exchange are derived. At a second level of logic, therefore, there are judges by right of the social interactions of subjects who are equal before the instance of the Third." Legendre, supra n. 12, at 172-173.
31. The totemic characteristics of juries, arbiters and state judges in the United States (as opposed to Federal judges) are much less marked. This does not mean that totemic enactment is unnecessary. It only shows that conflicts can be resolved in a variety of ways as long as some supreme, central institution enacts totemic authority.
32. "And what can be seen outlined behind the montages of Reference has itself already been referred to: the principle of the Father." Legendre, supra n. 2, at 186.
33. C. Schmitt, Political Theology, Four Studies of the Concept of Sovereignty (Cambridge, Mass.: Polity Press, 1985). Schmitt's position can be seen as a modern version of the voluntarist position in medieval philosophy, according to which God's will is not bound by the laws of God's reason.
34. Schmitt's suggestion is reasonable only when it is taken to describe historically singular transitional events. Such events interrupt ordinary historical continuity and replace it with 'mythical time'. On mythical time see V. Turner, "Images of anti-temporality", in On the Edge of the Bush (Tucson: The University of Arizona Press, 1985), 227-245;
35. M. Eliade, Cosmos and History, The Myth of the Eternal Return (Princeton: Princeton University Press, 1954);
36. A. Falassi, ed., Time out of Time (Albuquerque: University of New Mexico Press, 1987).
37. On discrepancies between different powers, see Hart's discussion of the "pathology of a legal system", in H.L.A. Hart, The Concept of Law (Oxford: Oxford University Press, 1961), 114-120.
38. L. Marin, The Portrait of the King (Hampshire: Macmillan, 1997);
39. "The Utopie Stage", in T. Murray, ed., Mimesis, Masochism and Mime, The Politics of Theatricality in Contemporary French Thought (Ann Arbor: The University of Michigan Press, 1988), 115-135.
40. As we shall see later on, totemic rhetoric treats the law as a norm that has Thing-like qualities.
41. S. Fish, "Change", "Consequences", "Dennis Martinez and the Nature of Theory", in Doing What Comes Naturally (New York: Oxford University Press, 1989), 141-160, 315-341, 372-398.
42. Legendre writes at length on the scholarly love of the big Other. Legendre, supra n. 12, at 85-92.
43. "So opposed to the sovereignty of the monarch, the sovereignty of the people is one of the confused notions based on the wild idea of the 'people'. Taken without its monarch and the articulation of the whole which is the indispensable and direct concomitant of monarchy, the people is a formless mass and no longer a state. It lacks every one of those determinate characteristics - sovereignty, government, judges, magistrates, class-divisions, etc. -which are to be found only in a whole which is inwardly organized ... If the 'people' is represented neither as a patriarchal clan, nor as living under the simple conditions which make democracy or aristocracy possible as forms of government (see Remark to Paragraph 273), nor as living under some other unorganized and haphazard conditions, but instead as an inwardly developed, genuinely organic, totality, the sovereignty is there as the personality of the whole, and this personality is there, in the real existence adequate to its concept, as the person of the monarch." G.W.R Hegel, Philosophy of Right, Irans. T.M. Knox, (Oxford: Oxford University Press, 1952), 182-183.
44. G.H. Mead, Mind, Self and Society (Chicago: University of Chicago Press, 1934), 164.
45. Ibid., at 213, 218.
46. As Fortes writes, "The relations of husband and wife, parent and child, sibling and sibling belong not only to the familial domain but also, and at the same time, to the politico-jural domain, the economic domain, and the religious domain ... If a mother's sister is classified with the mother, this is not because of the adventitious conditioning experience of being partly brought up by her. Nor has it anything to do with the ultimate ends of cultural transmission. It follows from the kind of recognition accorded in the social structure at large to the equivalence that is an inherent property of the sibling relationship." Fortes, supra n.6, at 63, 68. Fortes suggests that elementary components of our identities and the fundamental categories of social structure are necessarily juridical. Fortes' illuminating point paves the way to a more radical claim: juridical categories condition the possibility of social structure, constituting its individual occupants as subjects of the law and their interrelations - and that between the subject to himself- as thoroughly juridical relations between legal personalities (bearers of legal rights and duties). Social structures are moulded in the form of the constitutive juridical institutions of property, corporation, family and so on.
47. Every individual can be considered as a "subsidiary."
48. It can be said that all social structures share a certain "alienation constant" that alienates, first and foremost, man from himself. If, for example, urban and market alienation replaced the class alienation of the ancien-régime, a constant of alienation can be observed.
49. J. Lacan, The Ethics of Psychoanalysis (London: Routledge, 1992), 84.
50. While lack is constitutive of structure to the effect that structure works to perpetuate lack, in communitas the distance between the immediate and the absent is dissolved.
51. V. Turner, The Ritual Process (Ithaca: Cornell University Press, 1969), 131-132.
52. Ibid., at 27.
53. D. MacRae, "Populism as an Ideology", in E. Gellner and G. lonescu, eds., Populism (London: Weidenfeld, 1969), 153-165.
54. I. Silone, The School for Dictators (London: Gollancz, 1964), 28, 113.
55. Turner, supra n.46, at 153.
56. L. de-Heusch, "Pour une dialectique de la sacralité du pouvoir", in Écrits sur la royauté sacrée (Bruxelles: Editions de l'université de Bruxelles, 1987).
57. D. Anzieu, The Group and the Unconscious (London: Routledge, 1984).
58. C. Lefort, "The Logic of Totalitarianism", in The Political Forms of Modern Society (Cambridge: MIT Press, 1986), 273-292.
59. "If one reflects upon totalitarian techniques, one discovers that they all monotonously depend upon the elimination of what, in European history, constitutes the staging of the limit for the purposes of Reference itself: the distinction between what is public and what is private, the central notions of the theory of jurisdiction around which the genealogical power of the State was formed, are the guarantee of the reproduction of the subject. The bond of speech in our culture is lodged on the rock of the division between public and private ..." Legendre, supra n. 12, at 178-179.
60. On the medieval passage to kingship rooted in law as part of the Gregorian revolution and the revival of Roman law, see Herman, supra n. 9, at 85ff. Lefort describes how law and reason replace the king's body as anchors of the social-political order: "Once power ceases to manifest the principle which generates and organizes a social body, once it ceases to condense within it virtues deriving from transcendent reason and justice, law and knowledge assert themselves as separate from and irreducible to power." C. Lefort, "The Question of Democracy", in Democracy and Political Theory (Cambridge: Polity Press, 1988), 17-18. It is arguable that this process occurs not with the passage from monarchy to democracy but at an earlier stage, with the passage out of divine kingship.
61. By analogy, Heidegger speaks on the two aspects of the artwork. The art work constructs, on the one hand, a world of meanings and activities and, on the other hand, the "earth"; M. Heidegger, "The Origin of the Work of Art", in D.R Krell, ed., Basic Writings (New York: Harper and Row, 1977), 169ff.
62. Only a Thing-like law can extract its subjects from a Thing-like fusion.
63. Witteveen, supra n. 13, at 207-208.
64. Heidegger, "On the Thingness of the Artwork: The Origin of the Work of Art", in Heidegger, supra n.56.
65. A study of clerical communities and their rites of initiation can benefit from Lacan's ideas on the psychoanalytic licence (the passe) and on the discourse of the university.
66. R Nietzsche, The Genealogy of Morals, Irans. W. Kaufmann, (New York: Vintage Books, 1989), 3rd part.
67. A. Boureau, "Un obstacle àla sacralité royale en occident - le principe hiérarchique", in A. Boureau and C. Ingerflom, eds., La royauté sacrée dans le monde chrétien (Paris: Éditions de l'École des Hautes Études en Sciences Sociales, 1992), 29-37, 32.
68. Even though the law aspires to become a Thing rather than a proposition, it still tries to contain a closed, complete conceptual system. Theoretical completeness makes the law independent and strengthens its distance. On orthodoxy as a repository of completeness, see J.B. Henderson, The Construction of Orthodoxy and Heresy (Albany: SUNY, 1998), 85: "All of the orthodox traditions surveyed here attributed to themselves certain qualities, particularly primacy (or originality), a true transmission from the founder to the present day, unity, catholicity, and a conception of orthodoxy as a middle way between heretical extremes."
69. The various schools of "law and ... (economics, society, history, culture, litterature)" assume that the law becomes worthy of intellectual, as opposed to practical, study only in its relation to other domains of activity and creativity, conceived as independent, extralegal and pre-legal. However, the law conditions the possibility of all these allegedly prelegal fields, through a limited number of constitutive juridical institutions, with unlimited historical variations. The preceding account of social structure suggests that there are no interests, preferences, meanings and values that are prior to the law. Fundamental juridical categories are constitutive of structure and of its individual occupants as 'subject of the law' and, therefore, cannot be the object of economic calculus, of policy considerations, and so on. The ability of the "law and ..." schools to explain or initiate legal reforms is highly limited. The study of juridical categories, in their own enclosed play-field, reveals the essential forms of the social structures they constitute.
70. As Bryson has shown in his study of still life, a certain ambivalence towards the zone of familiarity, as a space of fusion and stagnation and a threat to subjectivity, is ubiquitous. N. Bryson, "Still Life and 'Feminine Space' ", in Looking at the Overlooked, four essays on still life painting (London: Reaktion books, 1990), 136-178.
71. In Lacan's seminar, The Ethics of Psychoanalysis, supra n.44, the Good and the Beautiful are indeed seen as surrounding the Thing and checking direct access to the Thing.
72. On communal ways of life as celebrations of the Thing that exclude strangers, see S. Zizek, "Eastern Europe's Republic of Gilead", in C. Mouffe, ed., Dimensions of Radical Democracy (Eondon: Verso, 1993).
73. On the aesthetics of familiarity zones see Bryson, supra n.65.
74. V. Turner, "Are there Universals of Performance in Myth, Ritual and Drama?", in On the Edge of the Bush (Tucson: The University of Arizona Press, 1985), 291-303, 293.
75. Turner, supra n.32, at 232.
76. V. Turner, "The Anthropology of Performance", in On the Edge of the Bush (Tucson: The University of Arizona Press, 1985), 177-205, 180.
77. Ibid., at 181.
78. Turner, supra n.l, at 80.
79. Ibid.,at82.
80. Ibid., at 83. The quotation is taken from S.R Moore and E.G. Meyerhoff, eds., Secular Ritual (Assen: Van Gorcum, 1977), 16-17.
81. "[Tjhe instance of the third ... mediates all exchange." Legendre, supra n.12, at 171.
82. D. Cohen, Law, Violence and Community in Classical Athens (Cambridge: Cambridge University Press, 1995), chapter 5.