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Fences.

Introduction

"Once, during the malaria season in the Eastern Transvaal" (Oom Schalk Lourens of Herman Charles Bosman's short story, Unto Dust, relates),
   it seemed to me, when I was in a high fever and likely to die, that
   the whole world was a big burial-ground. I thought it was the earth
   itself that was a graveyard, and not just those little fenced-in
   bits of land dotted with tombstones in the shade of a Western
   Province oak-tree or by the side of a Transvaal koppie. This was a
   nightmare that worried me a great deal, and so I was very glad,
   when I recovered from the fever, to think that we Boers had properly
   marked-out places on our farms for white people to be laid to rest
   in, in a civilised Christian way, instead of having to be buried
   just anyhow, along with a dead wild-cat, maybe, or a Bushman with
   a clay pot, and things. (2006: 262-3)


Oom Schalk mentions this to his friend, Stoffel Oosthuizen, who offers some comforting words against high-flown talk of death as the great leveller. "He would still like to see things proved", Schalk Lourens reports Stoffel Oosthuizen as saying, and, he continues, "The first time he heard that sort of talk about death coming to all of us alike, and making us all equal, Stoffel Oosthuizen's suspicions were aroused. It sounded like a speech made by one of those liberal Cape politicians" (2006: 263). He goes on to tell a story to "illustrate his contention"--but, Oom Schalk comments, "I don't know whether he told the story incorrectly, or whether it was just that kind of a story, but, by the time he had finished, all my uncertainties had, I discovered, come back to me" (2006: 263).

Throughout Bosman's work, images of fences and graveyards are striking in that they invite thoughts of the mutability and contingency of the human boundaries they are meant to set and stabilize: barbed-wire fences sag and are corroded by rust; memories are obliterated by the erasure of names on stones bleached and weathered by sun, rain, wind, and sand. Traces of human passing are lost as cemetery plots and graves recede, indiscriminately, back into the landscape. Fences and tombstones are poignant reminders of the very phenomena they are meant to keep at bay, to the extent that "those little fenced-in bits of land" seem hardly up to the task of isolating and defining the perimeters of "Boer", "white people", "Christian", "civilised"--or even of human existence itself--as something assuredly different from other animal life. The story that Stoffel Oosthuizen relates, intended to illustrate and justify the idea of what is fenced in ("After all, that was one of the reasons why the Boers had trekked away into the Transvaal and the Free State ... because the British Government wanted to give the vote to any Cape Coloured person walking about with a kroes head and cracks in his feet" (2006: 263)), insists instead on the uncertainties it is meant to fence out.

Bosman's story serves as a point of departure for the leading concerns in this essay: first, I am interested in the fence or boundary as an image of the law, and second, I am interested in the ways in which literature, and the law, might productively be considered in terms not only of what is fenced in, but in terms of a responsive relation to what is supposedly fenced out. I explore these ideas in the course of a close reading of Peter Fitzpatrick's influential text in socio-legal philosophy, Modernism and the Grounds of Law (2001b). My focus is his preoccupation with the legal boundary or nomos, through his reading of Carl Schmitt. Further, Fitzpatrick's work in legal philosophy is underwritten by a sustained interest in the relation between law and literature. The idea of responsiveness to the out-of-bounds, I suggest in this essay, links questions about the operations of law and the operations of literature in Fitzpatrick's work. One of the striking features in his writing is his responsiveness to the works of other writers, and in the final sections of this paper I relate his stylistic approach to a leading ethical preoccupation in the writings of J M Coetzee. "Writing is not free expression" says Coetzee,
   There is a true sense in which writing is dialogic: a matter of
   awakening the countervoices in oneself and embarking upon speech
   with them. It is some measure of a writer's seriousness whether he
   does evoke/invoke those countervoices in himself, that is, step
   down from the position of what Lacan calls "the subject supposed to
   know". (1992: 65)


Starting from scratch: Fitzpatrick's Modernism and the Grounds of Law

In Modernism and the Grounds of Law, Fitzpatrick speaks of the "spatial locating of law's range via the obliging etymology of 'nomos'" (2001b: 91, my emphasis). He goes on to cite Cornelia Vismann's essay, "Starting from Scratch: Concepts of Order in No Man's Land", which describes the "initial scene of the law":

The primordial scene of the nomos opens with a drawing of a line in the soil. This very act initiates a specific concept of law, which derives order from the notion of space. The plough draws lines--furrows in the field--to mark the space of one's own. As such, as ownership, the demarcating plough touches the juridical sphere . The primordial act as described here brings together land and law, cultivation and order, space and nomos. (1997: 46-7, cited in Fitzpatrick 2001b: 91-2)

Vismann's paper constitutes a reading ("an enthralling account and analysis" in Fitzpatrick's terms (2001b: 225)) of Carl Schmitt's The Nomos of the Earth. Fitzpatrick's nuanced discussion of nomos in Modernism and the Grounds of Law takes further Vismann's critique of Schmitt's relentlessly spatial account of the law, even while Fitzpatrick's engagement takes the "obliging etymology" of nomos on board. His notion of "the other, responsive dimension of space" (2001b: 93), is a concept which offers provocative commentary on Schmitt's understanding of the relation between nomos and the law defined as spatial orientation. But further still, it is in this context that Fitzpatrick's work can be read as forging a new kind of discourse, leading me to what I like to think of as an aesthetics of law. This is the pivotal argument in my discussion. More specifically: in contrast to the insular spatial determinism that Schmitt identifies with common law, and would like to apply to law more generally, Fitzpatrick develops the idea that law, like poetry, is intrinsically responsive to its other.

A distinctive feature of Fitzpatrick's own writing style is his extensive and creative use of quotations from a range of other sources. Literary, philosophical, psychoanalytic, anthropological and critical-legal texts become the colourful and tightly woven-in threads that make up the fabric of his arguments. The sustained, and even foregrounded device of quoting and alluding to other works is characteristic, too, of several of the Modernist literary texts to which Fitzpatrick himself refers with such insight. Throughout the discussion to follow, I play up Fitzpatrick's allusiveness; in fact, I would go so far as to say that much of this paper is inspired by thoughts about the aesthetic and ethical implications of his use of citation in his own critical legal discourse. In his insistent responsiveness to, and incorporation of, the writings of others in his texts, he not only speaks about, but performs what he might call the disruptive ambivalence of instantiating a conceptual field that depends upon what is ever beyond, but at the same time, incipient within it.

Carl Schmitt and the Jus Publicum Europaeum

In this section I am concerned with the image of the law as fence or nomos, and I begin by picking out and following back to its source one of the citation-threads in Fitzpatrick's Modernism and the Grounds of Law. The passage quoted from Vismann's essay at the outset of the previous section, and quoted in Modernism and the Grounds of Law, in its turn alludes to Carl Schmitt's extended reflection on the nomos, a reflection that brings nomos into the field of a philosophical, historical and politically charged discourse.

In the foreword to The Nomos of the Earth in the International Law of the Jus Publicum Europaeum, Schmitt presents the concept of nomos as having a primordial, foundational, and even chthonic quality. "Human thinking again must be directed to the elemental orders of terrestrial being here and now", writes Schmitt, "We seek to understand the normative order of the earth" (2003: 39). Nomos, in Schmitt, links order and orientation: "Nomos comes from nemein--a [Greek] word that means both 'to divide' and 'to pasture'. Thus, nomos is the immediate form in which the political and social order of a people becomes spatially visible" (70). The boundary line, or fence, or wall, takes on, for Schmitt, an unequivocally positive and spatially visible relation to that which is enclosed, and hence, to the law:
   the solid ground of the earth is delineated by fences, enclosures,
   boundaries, walls, houses, and other constructs. Then, the orders
   and orientations of human social life become apparent. Then,
   obviously, families, clans, tribes, estates, forms of ownership and
   human proximity, also forms of power and domination, become
   visible. (42)


Further, and importantly in Schmitt, the concrete historical event of land appropriation is intrinsically bound up in the concept of law. Schmitt speaks of land appropriation as being the "archetype of a constitutive legal process"; it "creates the most radical legal title, in the full and comprehensive sense of radical title" (47). Further still, it is the historical act of land appropriation that grants conceptual legitimacy to the law: "we must take heed that the word not lose its connection to a historical process--to a constitutive act of spatial ordering" (71); "it is a constitutive historical event--an act of legitimacy, whereby the legality of a mere law first is made meaningful" (73). Schmitt approvingly cites the German linguist, Jost Trier: "In the beginning was the fence", says Trier,

Fence, enclosure, and border are deeply interwoven in the world formed by men, determining its concepts. The enclosure gave birth to the shrine by removing it from the ordinary, placing it under its own laws, and entrusting it to the divine. (1942: 232, cited in Schmitt 2003: 74)

Thus nomos "is a fence-word" (Schmitt 2003: 75), and "[e]very nomos consists of what is within its own bounds" (Trier 1942: 232, cited in Schmitt 2003: 75).

Schmitt sees the action of the nomos as having three stages: appropriation, division and cultivation (2003: 351), and the emphasis of his inquiry is on what is inside the boundary, what the fence tells about the enclosed field it delineates. Hence, "this is the original meaning of nomos", writes Fitzpatrick, citing Dudley Young, "that portion of food-bearing land (we still call it 'keep') through which my sheep may safely graze" (1992: 317, cited in Fitzpatrick 2001b: 92). Schmitt notes that from the sixteenth to the twentieth century, the cultivated, and, by extension, the civilized field demarcated by European International Law was taken to be representative of an order applicable to the whole earth. Further, "Civilization was synonymous with European civilization" (2003: 86), and the new world was considered not as enemy territory, but as free space, open to European occupation. But the presumed spatial certainty of that which is bounded, unequivocally

circumscribed by the nomos, becomes more complex with colonial expansion in Africa. The "crucial distinction between European and non-European or colonial soil", writes Schmitt's translator, G L Ulmen, "was lost in Africa, and with it the meaning of the legal distinction of 'beyond the line', which separated the reach of European public law from the sphere of lawlessness" (2003: 26-7). For Herman Charles Bosman's characters in the story which I have cited, the predicament is focused through a colonial lens: the "properly marked-out places on our farms for white people to be laid to rest in, in a civilised Christian way" (2006: 263), do not seem able to sustain reference to colonial, let alone to European soil; the loss of the distinction between civilized and uncivilized has an elemental quality beyond the reach of any politics in the thought that "the whole world was a big burial-ground", that "the earth itself ... was a graveyard" (2006: 263).

Taking the cue from Bosman: the complexity of our understanding of the spatial compass of the nomos intensifies the moment we undertake further serious thinking about the logic of the limit. In thinking the boundary, or the limit, or the fence, one is often led to think foremost of what is supposedly excluded, or beyond the bounds of that limit. In Bosman's writing, the effect is to satirise racist and colonial attitudes in a localised setting, but in much contemporary legal and political philosophy, the question of the limit takes on a further, if more abstract ethical resonance. The "philosophy of the limit" (to use Drucilla Cornell's name-phrase for deconstruction), with reference to Derrida's "'logic of parergonality', demonstrates how the very establishment of a system as a system implies a beyond to it, precisely by virtue of what it excludes" (Cornell 1992: 1). Moving away from Schmitt's resolutely spatially determined legal interiors, Fitzpatrick refers to Jorge Luis Borges's Dreamtigers (1964) and Lewis Carroll's "The Hunting of the Snark" (in turn, examples both discussed by Boaventura de Sousa Santos (1995), to whom Fitzpatrick also refers), and speaks of the irresolution of law's spatial determinations: "whilst determination can never be completely spatially formed, responsiveness cannot be ever completely unformed" (2001b: 90-1).

In the work of both Fitzpatrick and Cornell, the irresolution of what is inside the supposed boundary, thanks to its responsive relation to what is beyond it, takes on a positive ethical colouring. For Cornell reading Derrida, the "project is not only to show us why and how there is always the Other to the system; it is also to indicate the ethical aspiration behind that demonstration" (1992: 2). Further, and more specifically, Cornell's undertaking is to "show the significance for legal interpretation of Derrida's own understanding of justice as an aporia that inevitably serves as the limit to any attempt to collapse justice into positive law" (1992: 2). By way of a thinking through of this philosophy of the limit in relation to the tensions and suspensions between justice and the law, both Fitzpatrick and Cornell offer a challenge to Schmitt's materially spatial conceptions. Fitzpatrick takes this further still: the content of the law is not only irresolute, but vacuous.

Law's vacuity: law and law's other

In his nuanced discussion in Modernism and the Grounds of Law, Fitzpatrick demonstrates the ways in which the common law, "despite its vaunted and supposedly exceptional grounding, provides no alternative to law's vacuity" (2001b: 93). This passage reminds me of Heidegger's discussion of art in his essay, "The Origin of the Work of Art" (1993). In this section of the paper I bring aspects of Heidegger's aesthetic theory into conversation with Fitzpatrick's theory of law. The discussion ultimately brings Heidegger's use of the word, "Riss" (a rift, a fissure, a scratch, and also a draft, a plan, a sketch, according to the Langenscheidt Standard Dictionary), into juxtaposition with the concept of nomos and the philosophy of the limit, as I have been sketching it out thus far. But first, let us consider the idea of law's vacuity in relation to Heidegger's discussion of art. What is the origin of the work of art, Heidegger asks. Is it the artist, or the work?
   The artist is the origin of the work. The work is the origin of the
   artist. Neither is without the other. Nevertheless, neither is the
   sole support of the other. In themselves and in their
   interrelations artist and work are each of them by virtue of a
   third thing which is prior to both, namely ... art.... But can art
   be an origin at all? Where and how does art occur? Art--this is
   nothing more than a word to which nothing actual any longer
   corresponds. (1993: 143, my emphasis)


Perhaps both the artist and the work have been vaunted as art's grounding, but just as Fitzpatrick registers law's vacuity, Heidegger draws attention to art's correspondence to "nothing actual". For Heidegger, "Art is truth setting itself to work" (1993: 167)--and he goes on to discuss this idea in some detail with specific reference to the building of a Greek temple. I track this example here at least in part because of the kinetic relation Heidegger establishes between what he calls "world" and "earth"--which will bring me back to the concept of the nomos (recall Schmitt's Nomos of the Earth) via the multivalency of Heidegger's term, Riss.

First to the temple: we are perhaps tempted to think that the temple is built as an act of portraying the prior existence of the gods in that place, and that the ground there is already holy. However, in Heidegger's subtle account, a "building, a Greek temple, portrays nothing. It simply stands there in the middle of the rock-cleft valley", and yet, "[b]y means of the temple, the god is present in the temple. This presence of the god is in itself the extension and delimitation of the precinct as a holy precinct" (1993: 167). Thus, even while it portrays nothing, it is the temple building that signifies the ground as sacred, that creates within it the shape of meaning and human destiny in acts of nature (birth, death, and other natural phenomena, such as the existence of other animals, or the weather) which in themselves are void and heedless of any meaning that humans might attribute to them. This, in turn, makes me think of a conversation between two characters in Anne Michaels's novel, The Winter Vault:
   A temple was the first power station. Think of the formulas
   invented, the physical achievement of thousands of men moving a
   mountain, hewing and hauling stone tonne by tonne, often hundreds
   of kilometres, to a site of precise coordinates--all in an
   attempt to capture spirits.

      To define space.... No. Not to give shape to space, but to give
   shape to ... emptiness. (2009: 9)


The temple in Heidegger gives shape not only to the abstract emptiness of a human world with respect to the gods, but to the physical earth surrounding the building. The presence of a work of art, for Heidegger, is not simply a "bare placing"; it instantiates a site for human dedication to, and consecration of, a meaningful world where truth finds its opening. "Towering up within itself, the work opens up a world and keeps it abidingly in force" (Heidegger 1993: 169, emphasis in the original) and "To be a work means to set up a world" (170). At the same time, the ground upon which the temple is built becomes "earth"--in Heidegger's special sense. The temple gives definition to the rocks upon which it is built as sturdy foundation, say. It makes manifest the violence of the storm raging above it, or the radiance of the light of day when the sun glints off its stones. Thanks to the building of the temple, "earth occurs essentially as the sheltering agent" vis-a-vis the irruption of natural phenomena, and thus, the "temple-work, standing there, opens up a world and at the same time sets this world back again on earth, which itself thus only thus emerges as native ground" (168).

What gradually comes into focus in Heidegger's essay is a vertiginous relation between "world" and "earth", both of which are called forth in the creation of a work of art. What interests me here is the metaphor Heidegger uses to describe this relation--that is, the image of Riss. The German word Riss (as I have mentioned) designates a fissure, rift or scratch, but it is also a design, draft or drawing, and it is worth noting that it is also a cognate of the English word, "writing" (see editor's note, Heidegger 1993: 188). In Albert Hofstadter's translation of Heidegger's essay, Riss is often rendered as "rift-design" in English, and it is clear that Heidegger himself is playing up the multivalency of the term. "For in truth" writes Heidegger, "art lies hidden within nature; he who can wrest it from her, has it". Heidegger goes on to provide a gloss on his use of the word, "wrest"--Reissen": "'Reissen heisst hier Herausholen des Risses und den Riss reissen mit der Reissfeder auf dem Reissbrett"--in Hofstadter's translation: "'Wrest' here means to draw out the rift and to draw the design with the drawing-pen on the drawing-board" (1993, and translator's footnote: 195). This rift, or design, for Heidegger, thus puts into relation what is simultaneously separated and joined on either side of the Riss--world and earth, or more crudely put, art and nature: "This rift does not let the opponents break apart; it brings what opposes measure and boundary into its common outline"--and further still, "The rift is the drawing together, into a unity, of sketch and basic design, breach and outline" (1993: 188). Thus the world of art is responsive to the earthly forms in nature; in fact, art discloses those forms. It neither excludes them, nor does it abstract or reduce them to the supposedly determinate limits of its own world.

Now, the last sentence of the previous paragraph purposely carries verbal echoes of Fitzpatrick's way of writing about law. The alignment I am beginning to suggest between a philosophy of law, and a philosophy of art may seem far fetched, but it is an alignment obligingly provided by Fitzpatrick himself (as we shall see in a moment), and also by Heidegger, in volume I of Nietzsche: The Will to Power as Art: "The artistic states are those which place themselves under the supreme command of measure and law, taking themselves beyond themselves in order to advance" (1991: 130). And further, "Such states are what they essentially are when, willing out beyond themselves, they are more than they are" (1991: 130).

I read close parallels here with Fitzpatrick's accounts of the law in Modernism and the Grounds of Law: "Determination itself depends integrally on law's responsiveness and this responsive dimension is always beyond the determinant" (2001b: 107). And: "Even at its most settled, or especially at its most settled, law could not 'be' otherwise than responsive to what was beyond its determinate content 'for the time being', but neither could it dissipate in a pure responsiveness" (2001b: 104).

What this amounts to finally is "the irresolution of law's dimensions" (Fitzpatrick 2001b: 107), to the extent that law's capacity for responsiveness, in Fitzpatrick's philosophy of law, is indeed part of what constitutes it in the first place. Bringing this finally back to the nomos, in Fitzpatrick's inimitable style:

A return to that obliging etymology of nomos can now extend beyond the fixing of law in the bounded earth and unfold more of how the responsive may be "placed" in law: "with a supremely judicious sense of metaphor, the Greeks also used 'nomos' to designate song or melody, that portion of structured time through which my emotions ... may safely range in search of nourishment without fear of being ecstatically carried away" (2001b: 101, citing Young 1992: 317-18).

There is a certain sense in Heidegger's work, as well as in Fitzpatrick's, that art/law not only does not exclude, but in fact makes possible, and even brings forth that other to which law is intrinsically responsive; the nomos, Riss, or outline evokes thoughts of what lies beyond it, unsettling complacent preconceptions of what is supposedly stabilized within its border. Further still, if part of what constitutes the law is its responsiveness to this other, then what is "other" to the law is not dispensable, but a structural condition for law's being what it is. Within the specific context of Schmitt's rigidly spatial conception of nomos, and other "talismanic spatial metaphors of inside and outside--of boundaries, terrain and atemporal demarcation" to posit the idea of autonomous law, Fitzpatrick's concern is "to show how the very effort at such determinant positing calls forth, or at least indicates the need of, the other, responsive dimension of space" (2001b: 93, with reference to Davies 1996: 18, Davies 1998: 155-6, and Derrida 1992: 6).

Towards an aesthetics of law

Ever since Plato's Republic, poetry has been presented as law's other. In the dialogue, Socrates, Glaucon, Adeimantus and others sketch out their vision of a just state, and they reach the conclusion that poetry and the dramatic arts ought to be banished from it. Once you admit "the sweet lyric or epic muse", says Socrates, "pleasure and pain become your rulers instead of law and the [rational] principles commonly accepted as best" (Plato 2003: [section]607a); the poet
   wakens and encourages and strengthens the lower elements in the
   mind to the detriment of reason, which is like giving power and
   political control to the worst elements in the state and ruining
   the better elements. The dramatic poet produces a similarly bad
   state of affairs in the mind of the individual, by encouraging the
   unreasoning part of it. ([section] 605b-c)


If philosophy identifies the just state and its laws as being on the side of reason, and poetry and the arts generally as being on the side of "feelings" ([section]605d), "instinctive desires" ([section]606a), and "desires and feelings of pleasure and pain" ([section]606d), then the logical conclusion is that the arts have no place within the domain of the law.

Nevertheless, I would argue that the core of Fitzpatrick's oeuvre consists in a sustained critique of the kind of mutually exclusive dualisms that are easy to find in Plato's dialogue. (2) In two recent papers, Fitzpatrick challenges a Manichean approach to law and its other with specific reference to law and poetry. In "Law like Poetry: 'Burnt Norton'" (2001a) and "Juris-fiction: Literature and the Law of the Law" (2004), Fitzpatrick argues that the logic at work in both law and literature is a responsiveness to what is supposedly beyond the limit of the respective disciplines. In "Juris-fiction", Fitzpatrick states this explicitly: "Law and literature . share the same ambivalence between existent instantiation and what is ever beyond yet incipient in it" (2004: 222)--even more radically, the "'disruptive ambivalence' that constitutes the law can be derived from a quality of literature" (215). In its call for a decision in each legal case (the outcome of a case is not absolutely foreseeable in advance), "[w]hat is always involved with the law [...] is the creative reaching out to a possibility beyond its determinate existence, a beyond where law "finds itself" in being integrally tied to, and incipiently encompassing of, its exteriority" (221).

Throughout his work, Fitzpatrick links law and literature through their utter responsiveness to what is yet to come as a possible constituent, which leads us to question complacent assumptions about where the borderlines of those disciplines really are. In his essays specifically focused on law and literature, Fitzpatrick's argument develops by way of philosophical reflections on, and incisive and sensitive close readings of, fiction and poetry, perhaps most notably the work of Modernist and other twentieth-century poets: TS Eliot, Wallace Stevens, and WH Auden, to name just a few.

But increasingly what has come to interest me is not only what Fitzpatrick says about law and literature in his work, but what he does in his own writing. A characteristic feature of Fitzpatrick's stylistic and conceptual approach (and this is a feature I have foregrounded in this essay), is an insistence on quoting, citing (that is, "to summon officially in a court of law", the OED tells us), invoking, drawing on, alluding to, borrowing from, referencing and cross-referencing the innumerable other texts that are thereby threaded into the fabric of his own. The cumulative effect of these quotations is that, in reading Fitzpatrick's work, one develops a sense of not simply reading a monologic text in isolation. Instead the words become gateways to a multivoiced philosophical conversation that goes as far back as Plato, and that includes voices such as those of Hobbes, Heidegger, TS Eliot, Wallace Stevens, Freud, Blanchot, Foucault, Derrida, and Beethoven, amongst countless others. The impact of all these references and quotations is that Fitzpatrick's own writing, like the law he writes about, performs the utter responsiveness that gives it such a profoundly ethical orientation. Fitzpatrick's work is thus not simply the product of one who writes, but of one who listens, intently, to the voice of the other.

In turning to detail to illustrate this point, I restrict myself to just one example--the first sentence of Modernism and the Grounds of Law. Actually, now that I come to it, let me cite the first two sentences, but I shall speak about the first sentence; even more specifically, my emphasis is on the first word. Here are the opening sentences of the introduction: "Extravagant as it may seem, this whole work is initially encapsulated in Freud's attempt to locate the origin of society in the primal parricide of Totem and Taboo (Freud 1960). Here Freud turned to 'the originary question of grounds', to borrow the phrase (Derrida 1989a: 60)" (2001b: 1).

At the back of my mind as I read this is the opening sentence of E M Forster's A Passage to India: "Except for the Marabar Caves--and they are twenty miles off--the city of Chandrapore presents nothing extraordinary" (Forster 1982: 31), but to return to Modernism and the Grounds of Law, "extravagant" also has an "obliging etymology", as The Shorter Oxford English Dictionary tells us:
   Extravagant (ekstra-vagant). ME. [-extravagant-, pres. ppl. stem of
   med.L. extravagari, f. extra EXTRA + vagari wander.... That
   wanders out of bounds; vagrant; keeping no fixed place.... "Roving
   beyond just limits or prescribed methods" (J.)


The first two sentences of Modernism and the Grounds of Law, with their reference to Freud as the impetus for the project and a borrowed phrase from Derrida, certainly are extravagant in their roving beyond the prescribed methods one would expect from a book in legal philosophy. The book announces itself as a response to Freud's Totem and Taboo--and thus the effect of "seem" (in "Extravagant as it may seem ...") gains its semantic force: what are the "bounds" of Modernism and the Grounds of Law if it is explicitly cast as having its origins in the work of Freud? Is Freud's "attempt" then not incipiently within the arguments of Modernism and the Grounds of Law, and Fitzpatrick's supposed vagrancy in citing it not really a wandering out of bounds at all? Yet if the arguments of Modernism and the Grounds of Law are only "initially encapsulated" in Freud, then the book is not entirely in that keep either. Thus the citation in the very first sentence already raises unsettling questions in a thematic way, but perhaps more importantly, it performs the "disruptive ambivalence" that Fitzpatrick locates in the responsiveness of law. Like the law of which it speaks, the book itself is only questionably contained within determinations one might traditionally set for a monograph written by a single author, as we shall see in the concluding section.

But first let me reiterate that my interest in Fitzpatrick's work has not only to do with the ideas expressed, but with the implications of his stylistic approach. I would argue that far from being an irrelevant, if idiosyncratic feature of his writing, Fitzpatrick's strategy of referencing, which is to say, his giving voice to the other, enacts the ethic of responsiveness that underwrites his legal philosophy.

I have spoken about what I called "the first sentence of Modernism and the Grounds of Law"--but of course, this is not strictly the first sentence. The real first sentence, after the list of contents, appears under the heading, "Acknowledgements", and this first sentence reads, "Rarely can the arrogations of authorship have been so sorely tested" (2001b: ix). The acknowledgements elaborate on this idea: the "infinity of influence cannot be encompassed", Fitzpatrick writes, and at a more radical level, any supposed containment of the book itself is open to question: "Its spurious self-sufficiency is also greatly challenged by the creative readings of previous drafts, or a chunk of them offered by ...". A litany of names follows, each linked to an item in an enchanting list that includes "exuberance", "research on globalism", "poetry", "red pens", "intellectual companionship", an "exemplary index", "sustaining joy", a "Kentish-Brazilian garden" and "much everything" (2001b: ix).

Returning specifically to the idea of the tested arrogations of authorship: the entire project of Modernism and the Grounds of Law is ostensively acknowledged and introduced by its author as being intimately engaged in conversation with other voices in creatively different ways. This brings me back to the passage that I cited from Coetzee at the outset. For Coetzee, "[w]riting is not free expression", it is intrinsically "dialogic: a matter of awakening the countervoices in oneself (1992: 65). In a moment of the writer's utter responsiveness to the other, for Coetzee--and I would say that this holds for Fitzpatrick as well--one's authorship cedes ground to an internal dialogue which questions ideas about the writer's presumptive occupation of sites of authority and knowledge. What all this leads to is an argument that Fitzpatrick's sustained literary device of citation throughout his writing can be understood to take effect in the Riss, the fault-line, the in-between (a word that Fitzpatrick often uses) that both separates and joins speaker and listener, writer and reader, I and you. A book like Modernism and the Grounds of Law is thus not simply the work of a single author, but of an interlocutor--that is to say, one who carries the ethical freight of participating in a conversation, of listening and responding, of questioning the grounds of one's authority, of rethinking and perhaps revising one's initial position. The ethical charge is activated, and measures a higher voltage, when the interlocutor assumes responsibility as the writer.

The performative effect of writing-as-response, even before the subsumptive themes and ideas are opened for analysis, is of particular interest to Coetzee. "Ideas are certainly important--who would deny that?" Coetzee writes, and then goes on to say,
   Whereas a style, an attitude to the world, as it soaks in, becomes
   part of the personality, part of the self, ultimately
   indistinguishable from the self. To put it another way: in the
   process of responding to the writers one intuitively chooses to
   respond to, one makes oneself into the person whom in the most
   intractable but also perhaps the most deeply ethical sense one
   wants to be. (1993: 7)


Conclusion

Returning, finally, to the image of fences: "it is often our mightiest projects", says the unnamed narrator of W G Sebald's novel, Austerlitz, "that most obviously betray the degree of our insecurity" (2001: 16-17), and certainly this holds true of David Lurie's response to the attack in which his daughter, Lucy, is gang-raped on her farm in the Eastern Cape: "They ought to install bars, security gates, a perimeter fence, as Ettinger [Lucy's neighbour] has done", says Lurie. "They ought to turn the farmhouse into a fortress. Lucy ought to buy a pistol and a two-way radio, and take shooting lessons" (Coetzee 1999: 113), but the trouble with the building of fortresses like these (again the narrator in Sebald's novel observes) is that
   it ha[s] been forgotten that the largest fortifications will
   naturally attract the largest enemy forces, and that the more you
   entrench yourself the more you must remain on the defensive [...]
   The frequent result, said Austerlitz, of resorting to measures of
   fortification marked in general by a tendency towards paranoid
   elaboration [is] that you [draw] attention to your weakest point,
   practically inviting the enemy to attack it. (2001: 19-20)


Certainly this is a realization that David Lurie reaches in Disgrace: "Even the days of Ettinger, with his guns and barbed wire and alarm systems, are numbered" (1999: 134), Lurie thinks to himself, and later on Lucy uses this argument to vindicate her decision to accept Petrus's proposal of marriage, and to hand over the title deeds of her farm to him: "To whom can I turn for protection, for patronage?", Lucy says to her father, "To Ettinger? It is just a matter of time before Ettinger is found with a bullet in his back" (204). Lucy's understanding of her own position is not assimilable to Western colonial conceptions of supposed legal boundaries, of land arrogation or proprietorship; which places her views in stark contrast with those of her father. (Lurie says to Petrus, "'This is not how we do things.' We: he is on the point of saying. We Westerners" (202).) The contrast between Lucy and Lurie is all the more striking in Coetzee's verbal echo in the phrases, "we both know that" and "You know that" in the two sentences below: "Stop calling it the farm, David. This is not a farm, it's just a piece of land where I grow things--we both know that" (200, emphasis in the original); and Lurie's response to Lucy's unconventional marital and property negotiations with Petrus: "It's not workable, Lucy. Legally it's not workable. You know that" (204, my emphasis).

Taken together, these sentences seem to imply a disaggregation between what is workable and what is legally workable, where "legal" is considered in the strictly determinative mode that Schmitt would accord to it. To what extent does an understanding of Lucy's response demand a looking beyond the conventionally perceived limits of Western law, in the way that Fitzpatrick's legal philosophy invites us to? The critical controversies sparked by the publication of Disgrace might well lead the reader of Coetzee's novel to comment (as Oom Schalk Lourens does at the end of Stoffel Oosthuizen's story), "I don't know whether he told the story incorrectly, or whether it was just that kind of a story, but, by the time he had finished, all my uncertainties had, I discovered, come back to me" (Bosman 2006: 263).

Bosman's story tells of the incidents surrounding Hans Welman's death, and the impossibility, six months later, of distinguishing his bones from those of the black man Stoffel Oosthuizen killed in the same place in a bush skirmish in the Transvaal. Oosthuizen and his friends have the task of bringing Hans Welman's remains back to his widow for Christian burial on the farm, "Nietverdiend"--"Undeserved". Long after the funeral, the black man's dog can still sometimes be seen in the vicinity of the graveyard on Hans Welman's farm.

In trying to make sense of Lucy's response, we may wonder: has Coetzee told the story of Lucy, Petrus, David Lurie and the dogs incorrectly? Is it just that kind of a story? A challenge is sent out to the reader to question longstanding ideas about the legitimacy of a colonial inheritance in Africa, and further, to question any assumptions one may have about the semantic keep of the literary text. Bosman's Unto Dust, Coetzee's Disgrace and other critical writings raise unsettling questions about colonial arrogations of land, as much as they do about the "arrogations of authorship" (Fitzpatrick 2001b: ix) and of supposedly stable, demarcated meanings arrogated by the readers of law and of literature. The testing of these arrogations may be one way in which contemporary South African literature could contribute towards a thinking-through of a post-apartheid jurisprudence.

References

Borges, Jorge Luis. 1964. Dreamtigers. Trans. Mildred Boyer and Harold Morland. New York: E.P. Dutton & Co.

Bosman, Herman Charles. 2006. "Unto Dust". In: Craig MacKenzie (ed.). The Complete Oom SchalkLourens Stories. Cape Town: Human & Rousseau: 262-6.

Clarkson, Carrol. 2008. "Ancient Antagonisms". English Academy Review 25(2): 101-10.

--. [2011, forthcoming]. Drawing the Line: Toward an Aesthetics of Post-Apartheid Justice. New York: Fordham University Press.

Coetzee, J M. 1992. Doubling the Point. David Attwell (ed.). Cambridge, Mass: Harvard University Press.

--. 1993. "Homage". The Threepenny Review 53: 5-7.

--. 1999. Disgrace. London: Secker & Warburg.

Cornell, Drucilla. 1992. The Philosophy of the Limit. New York and London: Routledge.

Davies, Margaret. 1996. Delimiting the Law: "Postmodernism" and the Politics of Law. London: Pluto Press.

--. 1998. "The Proper: Discourses of Purity". Law and Critique 9(2): 143-73.

Derrida, Jacques. 1989. "Psyche: Inventions of the Other". In: Lindsay Waters and Wlad Godzich (eds). Reading de Man Reading. Trans. Catherine Porter. Minneapolis: University of Minnesota Press: 25-65.

--. 1992. Given Time: Counterfeit Money. Trans. Peggy Kamuf. Chicago: Chicago University Press.

Fitzpatrick, Peter. 2001a. "Law like Poetry: 'Burnt Norton'". Liverpool Law Review 23(3): 285-288.

--. 2001b. Modernism and the Grounds of Law. Cambridge: Cambridge University Press.

--. 2004. "Juris-fiction: Literature and the Law of the Law". Ariel 35(1&2): 215-29.

Forster, E M. 1982. A Passage to India. Harmondsworth: Penguin.

Heidegger, Martin. 1991. Nietzsche: The Will to Power as Art. Trans. David Farrell Krell. New York: HarperCollins.

--. 1993. "The Origin of the Work of Art". In: David Farrell Krell (ed.). Basic Writings. Trans. Albert Hofstadter. New York: HarperCollins.

Michaels, Anne. 2009. The Winter Vault. New York, Berlin and London: Bloomsbury.

Plato. 2003. The Republic. Trans. Desmond Lee. London: Penguin.

Santos, Boaventura. 1995. Toward a New Common Sense: Law, Science and Politics in the Paradigmatic Transition. New York and London: Routledge.

Schmitt, Carl. 2003. The Nomos ofthe Earth in the International Law ofthe Jus Publicum Europaeum. Trans. Gary Ulmen. New York: Telos Press.

Sebald, W G. 2001. Austerlitz. Trans. Anthea Bell. London: Penguin.

Trier, Jost. 1942. "Zaun und Mannring". Beitrachen zur Geschichte der deutschen Sprache und Literatur 66: 232-64.

Ulmen, Gary. 2003. "Translator's Introduction". In: Carl Schmitt. The Nomos of the Earth in the International Law of the Jus Publicum Europaeum. New York: Telos Press: 9-34.

Vismann, Cornelia. 1997. "Starting from Scratch: Concepts of Order in No Man's Land". In: Bernd Huppauff (ed.). War, Violence and the Modern Condition. New York and Berlin: Walter de Gruyter.

Young, Dudley. 1992. Origins of the Sacred: The Ecstasies of Love and War. London: Little, Brown.

Notes

(1.) Material from this essay forms the basis of one of the chapters in my forthcoming book (Clarkson 2011).

(2.) A careful reading of Plato's dialogue shows the relation between paired and opposed terms (such as philosophy and poetry, law and the creative arts) to be far more intricate than I suggest here. I discuss the dialogue in more detail in Clarkson (2008).
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Publication:Current Writing: Text and Reception in Southern Africa
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Date:Jul 1, 2010
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