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Declarations of Law and Witnessing the Remainder

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Abstract

Declarations of law, of politics and of ethics have proliferated in contemporary discourses of public life. In this article, a terrain of research is unfurled that addresses the demand and repetition of declaration. Declarations are understood as relations of speech addressed between the masks of law, of sovereignty, of critic and of enemy. It is argued that what is instituted in the declarations of our time is a melancholic relation of speech which disavows the insistence of the remainder. The remainder persists. How then to bear witness to the remainder? Mourning provides some headway in the effort. What remains undeclared here must be mourned.

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Notes

  1. Voice here is understood as the objet petit a. For a magisterial discussion, see Dolar (2006).

  2. This is as true for the Bush-Obama transition, as it was for the move from Blair to Brown and now David Cameron in the UK, and as it was for the change from Howard to Rudd in Australia. This is particularly evident in the context of practices (and policies) around refugees and asylum seekers, immigration, and counter-terrorism.

  3. Consider for example the Anti-Terrorism Act 2004 (Cth) and the Anti-Terrorism Act (No 2) 2005 (Cth), the Patriot Act 2001 (USA), but also the more specific elaborations in texts such as Maritime Transportation Act of 2002 (USA). And of course there is the UK’s contribution: the Anti-Terrorism Crime and Security Act 2001, and the various legislative orders related to this Act and concerning its commencement and continuation, as well as the Prevention of Terrorism Act 2005 (UK). A useful record of legislation in the aftermath of 9/11 can be had at http://thomas.loc.gov/home/terrorleg.htm (last updated 30 October 2002).

  4. Anti-Terrorism Act 2005 (Cth) for this legislative regime. For its judicial reconstruction, see Thomas v Mowbray [2007] HCA 33, and Mussawir (2009, Chap. 4.2) for an analysis of its problematic of jurisdiction and procedures of transmission.

  5. We are thinking in particular of the cases involving ‘detainee 002’ and better known as David Hicks. See for example, Hicks v Ruddock [2007] FCA 299 where the jurisdiction of the Federal Court of Australia to assess the purposes of the Australian executive in not requesting the US administration to return Hicks to his home country was framed in terms of relations between the political and the legal. For comment, see Zelinka (2007).

  6. While it is perhaps not germane to the structural point being made here, we are nevertheless reminded that there is a similar choreography of signing and declaration involving President Franklin D. Roosevelt signing a declaration of war against Nazi Germany on 11 December 1941. It is used to illustrate a Wikipedia entry on ‘declaration of war’.

  7. In this, we get a sense of criticism as taking care to correct the words of law. As if the problem with George W. Bush signing the Military Commissions Act, or any other legislative text, was solely the words he used rather than the temporal and spatial limits of the pen and the podium. Of course the words too are a problem, and not only because Bush’s speech was riddled with malapropisms. As an anonymous reviewer adds, the words he used ‘were pretty scary too’.

  8. For an account of this return of love in the idiom of rights and duties, see Bankowski (2001). He comments: ‘You do not help a person but give them rights’ (p. 57).

  9. The prohibition of sedition has been renewed and expanded in Australia. The financing of anti-terrorism has been subject to a law that puts to one side the neo-liberal model of intentional responsibility and declares the risk that your money will end up in the hands of terrorists sufficient to make us accountable before the law. See the Anti-Terrorism Act (No 2) 2005 (Cth).

  10. This formula is reminiscent of Shakespeare’s comments on sovereignty as the ‘thrice loving liege’. This affection is thoughtfully elaborated in Brown (2008).

  11. There is a crucial distinction between speech and utterance (Spivak 1996). The enemy of course does speak, but his speech cannot be understood to be recognised because it always suffers from the incursion of the violence of his other position.

  12. The sovereign who decides on the exception is the melancholic sovereign. This we take as one of Agamben’s signal contributions to recent debates, in as much as we read Homo Sacer (Agamben 1998) with the earlier Stanzas (Agamben 1993, esp. part 1).

  13. This topos is familiar to common lawyers: as Fortescue CJ remarks in the 15th century, ‘Sir, the law is as I say it is, and so it has been laid down ever since the law began; and we have several set forms which are held as law, and so held and used for good reason, though we cannot at present remember that reason’ (Fortescue 1458 ff. 25b–26, as translated in Holdsworth 1923 p. 626).

References

  • Agamben, Giorgio. 1998. Homo Sacer: Sovereign power and bare life (trans: Heller-Roazen, D.). Stanford: Stanford University Press.

  • Agamben, Giorgio. 1993. Stanzas: Word and phantasm in western culture (trans: Martinez, R.L.). Minneapolis and London: University of Minnesota Press.

  • Anidjar, Gil. 2004. Terror right. The New Centennial Review 4 (3): 35–69.

    Article  Google Scholar 

  • Arendt, Hannah. 1976. The origins of totalitarianism. San Diego: Harvest Book, Harcourt Inc.

    Google Scholar 

  • Bankowski, Zenon. 2001. Living lawfully: Love in law and law in love. London: Kluwer Academic.

    Google Scholar 

  • Berlant, Lauren. 1997. The queen of America goes to Washington: Essays on sex and on citizenship. Durham: Duke University Press.

    Google Scholar 

  • Berlant, Lauren. 2008. The female complaint: The unfinished business of sentimentality in American culture. Durham and London: Duke University Press.

    Google Scholar 

  • Brown, Wendy. 2008. Sovereignty and the return of the repressed. In The new pluralism: William Connolly and the contemporary global condition, ed. Mort Schoolman, and David Campbell. Durham: Duke University Press.

    Google Scholar 

  • Cover, Robert. 1986. Violence and the word. Yale Law Journal 95: 1601.

    Article  Google Scholar 

  • Dolar, Mladen. 2006. A voice and nothing more. Cambridge, MA: MIT Press.

    Google Scholar 

  • Fortescue, C.J. 1458. Yearbook 36 Henry VI (trans: Holdsworth, W.S., 1923, p. 626).

  • Foucault, Michel. 1997. Society must be defended: Lectures at the College de France 197576 (trans: Macey, D., 2003). New York: Picador.

  • Freud, Sigmund. 2001. Mourning and melancholia. In standard edition Vol XIV (1914–1916): On the history of the psycho-analytic movement, papers on metapsychology and other works (trans. Strachey, J.). London: Vintage.

  • Holdsworth, W.S. 1923. A history of English law, vol. 3, 3rd ed. London: Methuen, Sweet and Maxwell.

    Google Scholar 

  • Lacan, Jacques. 1997. Four fundamental concepts of psychoanalysis: Seminar XI, ed. Jacques-Alain Miller (trans: Sheridan, A.). London: Penguin.

  • Mussawir, Ed. 2009. Jurisdiction: The expression and representation of law. University of Melbourne, PhD thesis.

  • Rose, Gillian. 1996. Mourning becomes the law. Cambridge: Cambridge University Press.

    Google Scholar 

  • Spivak, Gayatri Chakravorty. 1996. The Spivak reader, ed. D. Landry and G. Maclean. New York: Routledge.

  • Zelinka, Marley. 2007. Hicks v Ruddock versus the United States v Hicks. Sydney Law Review 21.

Legislation

  • Anti-Terrorism Crime and Security Act 2001 (UK).

  • Anti-Terrorism Act 2004 (Cth).

  • Anti-Terrorism Act (No 2) 2005 (Cth).

  • Maritime Transportation Act of 2002 (USA).

  • Patriot Act 2001 (USA).

  • Prevention of Terrorism Act 2005 (UK).

Cases

  • Hicks v Ruddock [2007] FCA 299.

  • Thomas v Mowbray [2007] HCA 33.

Media and New Media

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Acknowledgments

We thank the participants at the ‘Declarations of Law’ symposium held at the Melbourne Law School, University of Melbourne, and the contributors for their conversation in this special issue. Maria Elander provided excellent and timely research assistance for this special issue of Law & Critique.

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Correspondence to Peter D. Rush.

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Rogers, J., Rush, P.D. Declarations of Law and Witnessing the Remainder. Law Critique 21, 199–211 (2010). https://doi.org/10.1007/s10978-010-9076-8

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