Introduction – Loving the Subject

Legal Bodies

All territory is framed space, and this enframing is, to borrow a Derridean turn of phrase, ‘always already’ a legal manoeuvre. The laying out, division and ruling of ground into portions and lots always requires law, the very idea of such division of space into property is already legalistic, and the maintenance of the division requires rule as geometry, but also rule as law. There is no need to view this as giving priority to law, equally we could see the need for division as requiring a sense of law, as if the ground itself were crying out for law. What is certain is that law and the division of earth into allotable portion re-constitutes ground into legal territory, and in this regard bestows on that ground legal properties. We are, one might say, contracted to the ground we walk on.1 The national territory is pre-eminently a legal category. Nations need boundaries, are created by them as they create them. They are contracted, tied, to each other in relation to them, and this contraction constitutes them; a nation exists in relation to other nations. The breakdown of this contract is a kind of existential threat to the nation, and the result is usually war.2 The territory within a territory is the legal subject, constituted in and by law. The Modern period finds its political realization through the contractual forms of constitutions, contracts of citizens with citizens under the unifying feature of a protective governmental structure which exists as a staging or representation of the will of the people. Such will, the idea goes, is formed in rational dialogue, and stages of consultation are elaborated into the patterns of government. We, as citizens, are contracted to each other, and the constitution signals the terms of this contraction and our relationship to each other under it. Constitutions are a form of contract, and the reverse is equally true. The subject must be regarded as a particular staging, in a double sense, of the ‘Modern’ vision of individual rational human individuals embarking on a grand project of living and working together in the name of mastering and civilizing the wild elements of ‘nature’, even that nature which resides within them. The legal subject is a stage of formalization of a political pattern,

1 See Michel Serres, The Natural Contract University of Michigan Press, Michigan, 1995. Serres also develops the link to a third element, religion or the sacred, as a form of authority which has the power to make this original gesture of division which constitutes both law and geometry. See his discussion of the ancient Egyptian ‘harpedonaptes’, the priests who had the task of measuring out the portions of ground to be allocated to each farmer when the flood waters of the Nile had receded after the annual floods. 2 On this point Serres, ibid, reminds us that war is itself a legal state, in contrast to the absolute meaninglessness of chaotic violence. 1 which feeds back into the authenticity of the project itself; the political programme presumes rational actors and the suppression of all that does not fit this rational scheme. It is also a principal actor on a grand stage whereon is played a drama of responsibility attribution in the service of a political process; rational actors are morally, legally, responsible for having made the contract and are required to stick to it. The idea that we ever renew our commitment to the terms of this contract and thus to a sense of ourselves is the foundational fiction of our Modern political systems, our social contract. It is our political fantasy of completion.3 The paradigm expression of Modernism’s rationality is the notion of ‘right’. As political subjects we have rights. As legal subjects we exercise these rights within the bounds of the legal structures. As rational subjects we understand how to do the right things, recognizing our own best interests. As moral subjects we recognize our political, legal and social responsibilities to act in the right (responsible) way so as to preserve our social contract. Contemporarily the manifold idea of right and its connections to subjectivity find most clear social expression in the dominance of human rights discourse as a means to refer to the interests of humanity, the presumption being that the protection of human rights and the protection of humanity is the same thing. At a grand level of abstraction, behind the meaning of words, is the shared social fact of words or expression having meaning. This shared structure of meaning constitutes language and constitutes subjectivity in language, revealing that human subjectivity is a form of contract initially to structures of shared meaning, and that this very property of sharing requires others. This agreement as to meaning is the most basic form of the social contract, for outside of shared meaning there is no human society. This contract as to meaning allows language to exist as meaning-full, and this meaningful language shapes – arguably even creates – what we understand to be humanity.4 The absolute depth of the legal relationship to the emotional, physical, spiritual and psychic beingness of individuals, and the role of language and meaning as a medium of transmission, is well discussed in Peter Goodrich’s book Languages of Law, wherein he writes of the ‘mordant sense of being contracted by the very geography of our lives, by the institutional site of discourse, by a built environment through which our language must always pass’.5 This leads Goodrich to the position that:

3 See generally for the historical development and philosophical grounding of human rights discourse, Costas Douzinas, The End of Human Rights, Hart, Oxford, 2000. See in particular chapter 8 ‘Subjectum and Subjectus: The Free and Subjected Subject’ and chapter 9 ‘Law’s Subjects: Rights and Legal Humanism’. 4 This idea is beautifully examined by Michel Serres in chapter 1 ‘War, Peace’ of his The Natural Contract, supra note 1. 5 Peter Goodrich Languages of Law, Weidenfeld and Nicolson, London, 1990 at 10. For a full treatment see in particular chapter 5 ‘Contractions’. 2 What is most interesting and most frightening about the law is precisely that it is integral to experience, that it is everywhere present, not as command or facile rule but rather as an architecture of daily life, a law of the street, an insidious imaginary.6

Law, in other words, is inseparable from subjectivity; where subjectivity exists it will exist as an expression of a prior contract. This contract is not one which we can freely choose to enter, but rather one to which we are tied by virtue of our entry into social meaning. In language, in nationality, in citizenship, in identity, in social interaction we are constituted as active subjects but are subjects of contracts already made without our consent. To the extent that subjectivity is simply the process of life which is a doing-in-the-world, it requires the ongoing operation of the faculty of judgement; to step right rather than left, to choose this rather than that. Our very notion of right as common sense in the world, of what is properly ours, is intimately tied to our social, philosophical and legal history. Subjectivity is not only contracted but is a species of judgement born of the original contract to which the subject is bound as passive object. This passivity constitutes what we consider most natural about ourselves, illustrates and conditions the pattern of our passions, who we are. The senses, affects and organs of the subject, right down to the blood and the bone, right through to the depths of the sub-conscious, are created in the subjection to the forms of life into which the subject is born and which are maintained through the images of the world born out of the laws of experience which the accreted organs dictate:

That vast depository of legality which calls itself a body is already a jurist, excited and propelled by fantasms which are already public objects, fantasms which institute the structures of political love. The repetition of fantasms that work themselves into the nervature of the soul’s voluptuous, exposed ‘hyletic’ surface predisposes it towards particular ethical judgements, by creating in it a memory of the good, a just pathology.7

The body is always a legal body, the individual always a legal subject. In multiple ways we are contracted, ruled, framed, we rarely choose and are thoroughly chosen, we speak, but largely we are spoken through, we act, but we act as subjects of law.

Love Changes Everything

How could I have not wanted to write? When books took me, transported me, pierced me to the entrails, allowed me to feel their disinterested power; when I felt loved by a text that didn’t address itself to me, or to you, but to the other; when I felt pierced through by life itself, which doesn’t judge, or choose, which touches without designating; when I was

6 Ibid at 10. 7 Yifat Hachamovitch ‘In Emulation of the Clouds’ in Douzinas, Goodrich, Hachamovitch, eds. Politics, Postmodernity and Critical Legal Studies – The legality of the contingent, Routledge, London, 1994, at 38. 3 agitated, torn out of myself, by love? When my being was populated, my body traversed and fertilized, how could I have closed myself up in silence? Come to me, I will come to you. When love makes love to you, how can you keep from murmuring, saying its names, giving thanks for its caresses?8

What allows us to escape from the legality of ourselves? What are the alternative sources of authority that might give us the right to act in the world, or allow us to bypass structures of right when it comes to acting in the world? Are there ways of thinking about human subjectivity which provide a counter-story to that supplied above in relation to our freedom in the world and our contraction, our pre-contraction, to the law? The critique of Modernism and the paradigmatic ideas of Modernism that has been conducted within ‘post-structuralist’ or ‘post-modern’ theory has taken various different forms and has had as a common impulse the attempted demonstration of the fallibility of Modernism’s implicit perfectionism, it’s myth of progress towards the ‘end of history’. One overall pattern of critical ideas and techniques has sought to demonstrate the dark side of Modernism, whether in the lack of coherence in its idea structure, the irrationalities at the core of rationality, the exclusions at the core of the rhetoric of common purpose, or more materially in the demonstration of all that has been destroyed in the pursuit of progress. Another set of critical ideas and techniques has sought to provide, through genealogy and philology, a social history to Modernism which denies it the aura of perfection and leaves it looking patchwork and often threadbare. On the level of the subject these series of techniques have been brought to bear on the Modernist notion of the self-present rational actor, the perfect human of human rights.9 The attacks on this Modernist subject have been so thorough as to create their own problem of what remains of the human, or humanity, after this species of the human has been so thoroughly enmeshed into language, history and power.10 The problem then is, having prioritized language as a source of constructive agency in relation to human beingness, to find space to work through language to convey a sense of the deeply held idea of human beingness beyond language. The authentically acting subject within post- structuralist literature has often been cast as a loving subject, occupying precisely the paradoxical

8 Helene Cixous, Coming to Writing and Other Essays with an introductory essay by Susan Rubin Suleiman, edited by Deborah Jenson, translated by Sarah Cornell et al., Harvard University Press, Cambridge, Massachussetts/ London, 1991, at 9/10. 9 For an introduction to the literature and outline of the debates on both these issues see Costas Douzinas, The End of Human Rights, supra note 3. 10 This question, in particular with reference to the legal subject, animates the rest of this work, and while I have no desire to obfuscate through jargon since hopefully the arguments will become gradually clear throughout the course of this work, the general theoretical influences are those of critical legal studies and autopoietic legal studies. For an introduction to the question more broadly but using related ideas, a general philosophical review and suggestions, see in particular Rosi Braidotti, Metamorphoses: Towards a Materialist Theory of Becoming, Polity, Cambridge, 2002: Rosi Braidotti, Transpositions: On Nomadic Ethics, Polity, Cambridge, 2006. 4 territory of being most autonomous when most drawn out of themself by some ulterior power. In the quotation given above Helene Cixous disturbs the pattern of more usual discourse on love by connecting love intimately to issues of language and of writing, sensualising and emotionalizing her relationship to texts or language structured in particular ways, to discourse. This recalls the idea discussed above of legal contraction through language and the discursive structure of the contract, as well as the emotional and physical relationship to self and others that the law conditions. In this approach Cixous is typical of other post-structuralist writers, although her style is very particular to herself. A few classic texts in this genre are The Lover’s Discourse of Roland Barthes, Coming to Writing by Helene Cixous (quoted above) and The Post-Card by Jacques Derrida – more directly in relation to legal studies there is the corpus of work of Luce Irigaray, especially I Love to You.11 Their work tries to somehow hold intact the paradox of intense individuality as a folding within communication by maintaining attention on the ability of love to support such a paradox. The trick in this kind of writing is to convey meaning without allowing what is said to slip to either side of a conceptual division between individual and communication, between the subject and the relationship.12 The devices employed to pull off this trick of holding multiple meanings in tension are formal experimentations, and recourse to language as irreducible to singular communications – in other words to language as poetry rather than information. This then, is a type of writing which attempts to deal with subjectivity as at one and the same time a matter of communicative structure (or pattern of discursive contraction) and individual real activity, as a flow of communication and a resistance to communication in the same instant. This treatment of the loving subject constitutes at once a kind of communicative analysis which might be termed macro-sociological in its attention to discursive flow, and a type of micro-sociology of the resistances and patterns of affect which constitute actual love relationships.

11 Roland Barthes, A Lover’s Discourse; Fragments translated by Richard Howard, Hill and Wang, New York, 1978; Helene Cixous, Coming to Writing and Other Essays, ibid; Jacques Derrida, translated, with an introduction and additional notes, by Alan Bass, The Post Card: from Socrates to Freud and beyond , Chicago and London, University of Chicago Press, 1987; Luce Irigaray, Collie Joanne, translated by Judith Still, Elemental Passions : Athlone Press , London 1992. Luce Irigaray , This Sex Which Is Not One, Cornell University Press , Ithaca 1985. Luce Irigaray, translated by Carolyn Burke and Gillian C. Gill, An Ethics of Sexual Difference Cornell University Press, Ithaca, N.Y 1993; Irigaray, Luce, translated by Alison Martin, I Love To You : sketch for a felicity within history Routledge, New York 1996. For more pragmatic work on the theme of love and law see Yota Kravaritou, Du droit et de l'amour dans l'Union europeenne, European University Institute, Florence, 1997 EUI WP 97/5; Yota Kravaritou, Peter Fitzpatrick, Elena Pulcini, Jeanne Schroeder, Nicola Lacey, Tamar Pitch, Maria Virgilio, Luigi Ferrajoli, Droit et amour en Europe : relations complexes, European University Institute, Florence, 2000 EUI WP 2000/2. 12 Peter Goodrich has written of the justice in particular forms and styles of writing, contra Luhmann and the idea of justice in the self referential legal result. Peter Goodrich, ‘Law by Other Means’, Cardozo Studies in Law and Literature, Volume 10, No. 2, Winter 1998. 5 This blending of macro and micro-sociological concerns and the blending of socio- philosophical concepts with the paradoxical concept of love is a very difficult task to achieve not only conceptually, but, perhaps more importantly, stylistically and the question of stylistic innovation is also the question of challenge to the inherent normativity of discourse. Generally such work is expressed in what seem like much more literary forms than traditional sociological forms, although they constitute in fact a coming together of theoretical and literary forms. The point of this, it would seem, is to demonstrate the freedom being investigated by creating new forms in which to express this freedom, and thus to express a form of subjectivity that somehow escapes the standard rules of discourse, the legal contraction to the always already known and understood patterns of language. This pattern of paradoxical subjectivity, authenticity and activity born of irrational non-choice and taking on forms of expression that cannot be reduced to manifestations of choice, challenges the most basic of legal categories as these relate to the subject. Questions of intention and action are reframed beyond questions of contract and rule.

Modern Love: the rational strikes back

Niklas Luhmann, famous for having introduced the theory of ‘autopoiesis’ to the social sciences, writes in the introduction to his Love as Passion that ‘one must assume that individuality in the sense of a self-propelling, psycho-physical unity, and above all in terms of each person’s individual death, is something accepted by all societies’.13 Having ceded this much territory to the ‘individual’ as a basic entity in all societies, Luhmann goes on the attack. He refines his own investigation of individuality into the sociological project of examining ‘the genesis of a generalized symbolic communicative medium assigned specifically to facilitating, cultivating and promoting the communicative treatment of individuality’ - it is scarcely necessary to add that the ‘individual’ in question is a specifically Western creature, the communicative medium a trajectory of Western discourse. Luhmann’s move here is to immediately deflate the notion of individuality as tied to any spiritual quality, to any motion of the soul, to any essence of humanity, to any basic drives. Individuality is simply the product of series of ways of communicating about individuality, and developments within communicative structures. The important thing, sociologically speaking, is to understand the genesis and development of ways of speaking about individuality and how

13Niklas Luhmann, translated by Jeremy Gaines and Doris Jones, Love as Passion, Stanford University Press, Stanford, 1998, at 14. For a comprehensive introduction (in English) to Luhmann’s work on social systems and his adaptation of biological autopoietic theory for social system reference see Niklas Luhmann, translated by John Bednarz Jr., Social Systems, Stanford University Press, Stanford, 1995. Particularly in relation to law see Niklas Luhmann, ed. Kastner, Nobles, Schiff and Ziegert, translated by Klaus A Ziegert, Law as a Social System, Oxford University Press, Oxford, 2004. 6 these throw up ways of understanding, including self-understanding, individuality. To paraphrase, the important things for Luhmann about individuality are all the non-individual communicative elements that allow individuality to exist as a function of an overall system of meaningful communication. Individuality, in the sense of a self-motivating autonomous creature, of itself doesn’t really exist at all, and society functions on the basis of systems, not people.

To drive home this theoretical point through a more or less empirical analysis (through the analysis of texts in a historical sociological framework) Love as Passion continues as an investigation of the social communicative foundations of passionate love – between men and women. The case is made, principally through analysis of literary texts which describe the sensations of love, that the experience of love has gone through three paradigmatic forms since the medieval period; from ideal love (courtly love) to romantic love (principally theorised as a development which allowed an escape from arranged marriage) to the kind of love, it is said, that we are most familiar with today, that is ‘love as interpersonal interpenetration’.14 This latter form of love deals with love as a type of coming together of independent equals to produce a package of interdependence which is more than the sum of the parts. Within the patterns of interdependence mechanisms are established which allow for spaces of autonomy for each of the partners. It is a type of love relationship which provides maximum opportunity for individual self-possession while still being part of an affective, social and physical partnership. It is a love for the consumer age, hedged around with ranks of expectations of good future conduct from the other party and qualifications to obligations on oneself. Founding a relationship is like founding a public limited company, falling in love is having a nose for a good deal.

Such an analysis is intended to defuse the power of love as somehow beyond rational comprehension and therefore as a paradoxical seat for all that is most true. Love, even within its most high romantic form as passionate madness, becomes recast as a social communicative phenomenon.15 The undeniable madness of love is amenable to capture within theoretical analysis, without any need for obfuscation of the issues through, for example, a recourse to psychoanalytic discourses about unconscious urges and the emergence of the repressed. The central theme here is that passion – where passion carries the etymological connotations of the emotions which render us passive as they sweep us away – is nowadays grounded in the desire for interpenetration.16 Such

14 This analytic pattern is discussed more fully in ‘Critical Law, Critical Love’, chapter 1 below. 15 Foucault in his History of Sexuality Vol 1 engages in this same manoeuvre; focusing on the affective life of the ‘individual’ to demonstrate the discursive nature of that construct. Michel Foucault, The History of Sexuality, Volume 1; An Introduction, London, Allen Lane, 1979. 16 The most vivid development of a theory and active and passive emotions is contained in Spinoza’s Ethics, and the scheme of love laid out by Luhmann is open to an analysis in terms of Spinozan ethics, in particular because of the Spinozan resonance with ideas of self-organisation through self-observation. The Luhmannian scheme focuses on such self-observation and organisation at the level of social system and sub- 7 desire operates at the level of instinct – we still fall in love – but is readable as a communicative construct. The discipline of sociology and social theory generally, must adapt to a different approach to social phenomena, and it is a kind of tribute to love that it is accorded the passionate attention of a passionate sociologist like Luhmann. The point is that love - or any such creature - must no longer be allowed as an escape hatch from theory.

Having, to his own standard, demolished a certain understanding of love through its banalisation as just one more topic for sociological study, then the oblique point established is that none of the other emotions that might be regarded as some kind of true expression of a deep essence of individuality can be seriously proposed to take its place. If love has fallen as a site of what is really real, if we can understand that the motions of love are historically contingent and understandable without any need for more complex explanations than those available to a careful historical sociological reading, then who can doubt that the same maneouvre could be performed with any rival candidate for the location of a deep truth to individual nature or beingness?

The Empire of the Senses: love beyond rationality

The reading of individuality that Luhmann provides in this text is in some ways a straight- forward post-structuralist account of the individual as linguistic construct, and it is well established that this version of individuality has its (twentieth century) twin roots in Saussurian linguistics and Heideggerean ontology - principally popularised through the interpretations of Jacques Derrida and Michel Foucault. Luhmann incorporates these theoretical developments, but still seeks a rationality beyond them by proposing system rationality as opposed to individual rationality as the prime social force. The fact that he approaches the individual through the theme of passionate love brings him very close to the concerns of Foucault and Derrida in various of their own works which have dealt with this theme.17 What distinguishes the Luhmannian account from those of Derrida and Foucault, system, while Spinoza is concerned entirely with the individual human being in their ongoing creation of a relationship of coming closer to God as a process of being more in love with God through knowing God in all his manifestations in the world; the amor intellectualis dei. See Benedictus de Spinoza , Curley Edwin (ed) The Ethics from The Collected Works of Spinoza Princeton, Princeton University Press, 1985. Theories of emotion as complex communicative sites have been re-visited more contemporarily through an optic of queer theorisation in, for example, the examination of the work of Silvan Thomas by Eve Kosofsky Sedgewick and Adam Frank in Kosofsky and Frank (ed.s) Shame and its Sisters. a Silvan Tomkins reader with selections from Affect, Image, Consciousness and with a biographical sketch by Irving E. Alexander, Duke University Press, Durham NC, 1995. 17 See, for example, Michel Foucault, The History of Sexuality, Volume 1; An Introduction, London, Allen Lane, 1979: Michel Foucault, The History of Sexuality Volume 2; The Use of Pleasure translated from the French by Robert Hurley, Viking, Harmondsworth, 1986, c1985: Michel Foucault, The History of Sexuality, Volume 3; The Care of the Self translated from the French by Robert Hurley, Penguin, London, 1990, c1966. Jacques Derrida, The Post Card: from Socrates to Freud and Beyond translated, with an introduction and 8 is that he is much less prone to slippage from this basic position of regarding the individual (and everything else) as communicative construct - and nothing else. Although Derrida is so associated with this position that he has been given as a kind of motto ‘Il n’y a pas de hors-texte’, on reading his love notes from The Post Card or his treatment of the erotics of Nietszchean writing in Spurs; Nietszche’s Styles, it is very difficult to take such a statement at its ‘face value’.18 The statement seems to stand rather as an irony, a form of correctness which dissembles the more basic truth that there is indeed something outside of text, just as there is something (and nothing) inside of text; the question is what? This something, for Derrida, might be love, or, more generally and more Heideggerean, Spirit.19 It might be the ghost of obligation that grows from the reality of death and indebtedness, as investigated through the figure of Hamlet in Specters of Marx.20 It might be the inexhaustability of meaning as a figure of God in itself, or the figure of Justice as Deconstruction investigated in the seminal essay ‘Force of Law; The Mystical Foundation of Authority’.21 But there is always something that is in the text and yet utterly beyond it, that is outside of text and yet deep in the grain of text.22

Foucault, an object of strange and peculiar scorn to Luhmann, castigated in Love as Passion for the vulgarity of his talk about ‘our suffering bodies’ as some kind of basis from which to work a theory, popularised the idea of discursivity to such an extent that he may be taken to have revolutionised academic thinking, and linked the subject/self so firmly to discourse as to seemingly leave no escape from the weave and weft of language. Yet his continuous project from an early stage in his working life was to challenge his own conclusion on this point, to re-imagine or re- understand subjectivity in such a fashion that it would have an authenticity, a connection not to discourse but to truth. In later work this search became refined into a search for a truth-of-self that recalled the classical parrhesia, truth as philosophical honesty.23 Derrida and Foucault, arch anti- humanists, remained humanist to the extent of seeking to progress beyond the circle of meaning that additional notes, by Alan Bass, Chicago and London, University of Chicago Press, 1987; Jacques Derrida, Spurs - Eperons: Nietzsche's Styles - les styles de Nietzsche. introduction by Stefano Agosti , English translation [From the French] by Barbara Harlow, drawings by Francois Loubrieu, University of Chicago Press, Chicago/London, 1979. 18 Jacques Derrida, Spurs, ibid. 19 Jacques Derrida, Of Spirit ; Heidegger and the Question, University of Chicago Press, Chicago 1991. 20Jacques Derrida, Specters of Marx. the state of the debt, the work of mourning, and the New International, translated by Peggy Kamuf, with an introduction by Bernd Magnus and Stephen Cullenberg, Routledge, New York and London, 1994. 21 Jacques Derrida, ‘Force of Law; The Mystical Foundation of Authority’ Deconstruction and the Possibility of Justice Cornell Rosenfeld and Carlson eds. Routledge, New York and London, 1992. 22 Gunther Teubner has investigated a series of possible avenues to link the work of Luhmann and Derrida in Gunther Teubner ‘Economics of Gift, Positivity of Justice; the mutual paranoia of Jacques Derrida and Niklas Luhmann’ Theory Culture & Society Volume 18 No. 1, February 2001. 23 For an introduction to this topic see ‘Foucault as Parrhesiast’ from Michel Foucault, 1926-1984 Ethics : Subjectivity and Truth / Michel Foucault, edited by Paul Rabinow, translated by Robert Hurley and others, New Press, New York, 1997. 9 they understood themselves to be lodged within, arch post-modernists (in at least a literary sense) remained modern in their heroic authorial tilt at the windmills of authority. Luhmann remains true to his station and to his theoretical position; absolutely selfless as a condition of outlook, not as a virtue.

The rigorous Luhmannian reading of individuality provides, one might say, half the substance of what is rounded out generally in post-structuralist literature into the concept of the subject. The subject, that is, that is created in discourse but which also constitutes a kind of autonomous-action folding within discourse. The subject, in other words, which is subject to, and yet also the subject of – a creature split between two separate pre-positions which preface any position that it will occupy. It is this other half of the subject, the acting subject, which creates difficulty for such a Luhmannian obsession with the purity and propriety of communication when this is used as a conceptual scheme to try to establish different analytic grounds on which to deal with human activity. The acting subject, subject of, oftentimes disrupts the regular patterns of communicative flow, refuses or simply fails to be a pure conduit for the information which seeks to pass through. A comprehensive understanding of social phenomena must encompass the uncomfortable fact of the irregularity and unpredictability of subjective action.

The concept of love, seemingly so easily tamed by Luhmann in his analysis, returns to haunt at this point. Love has been one of the great dyad of concepts that have evolved to deal with and epitomise this subjective unpredictability and irregularity. It has held its place with madness for centuries as a paradigmatic folding of unpredictability within predictability, as a legitimation of breakages in the flow of what should follow in human relations. Such a break in the flow of predictability constitutes subjective action as opposed to being carried along in the flow of events, as opposed to passivity, and it is for this reason perhaps that the loving subject has been co-opted as a paradigmatic form of social subjectivity within post-structuralist writings. In love one embodies a paradox; one is most subjectively active at the point where one is drawn into unpredictability; that is, when one is least in control of oneself. While madness, a similar condition, has often been cast as entirely individual, love has particularly pertained to inter-relationship or communication and again constitutes a subjective paradox; one is most oneself when one gives oneself to another. Love, therefore, is both a folding of unpredictability within predictability and also a folding of inter- relationship within pure subjective action, otherness within individuality.

Grasping the complexity of the in and out foldings of love as a social phenomenon one begins to wonder at the wisdom of a Luhmannian style dismantling of love into a series of communicative pieces, and his concern to use this to emphasise the functional power of systems compared to the relative powerlessness of individuals. The effect of his attack is to highlight the

10 capacity of love to resist being drawn into an analysis in system terms, and to resist in terms which respect the complexities of communication that Luhmann works through, in the sense of resisting on whatever level of complexity he can bring the encounter. Love emerges as precisely the kind of paradox which serves to exemplify the overall systemic communication structures but which is inexplicable simply in systemic terms. The loving subject, in other words, emerges not only as an escape from paradigm structures of rationality and modernity, but as an escape which is also an embrace, the subject ruled and unruly, self-present and thrown away, captured and free. The loving subject emerges as precisely a complex enough subject to live truly in a complex and paradoxical world. Self-awareness in love comes as a condition of self-otherness rather than self-presence. Not only that, but the loving subject, in its complexity, rescues the idea of human subjectivity itself as an important form of social agency from a complex attack which would favour system rationalities, such as that of Luhmann.

Legal Subjectivity I: personality as self-reference

The search for the ‘essence’ of the legal person, which has fascinated whole generations of lawyers, has now been tacitly abandoned due to an everyday familiarity with this legal entity. Today the legal person is having to pay the price of success: nobody is interested in its essence any longer, and, despite warnings to the contrary, it is no longer taken seriously…24

The status of the legal person, as is well known, allows for the law to fix collective bodies with a single legal personality and to attribute responsibilities to this single entity accordingly. In this way it treats collective bodies as if they had a single body, a single intent, a single essence. This simplifying technique has served well, particularly in the field of commercial law, by allowing law to avoid peering into the dark corners of corporations to find a single human individual to bear the responsibility for the actions of a company. The reciprocal pay-off for those working in the commercial sector has been the capacity to deflect attention onto the overall entity for what might otherwise have been considered individual culpability. A second line of trade-off has been the diminution for individuals of any chance that legal penalties incurred will focus on their physical bodies, since, when punishment is the issue, the mystical body of the legal person generally makes itself tangible in the convenient form of a wallet. Corporations, however, increasingly view themselves as non-integral and devise methods to allocate specific economic responsibilities to

24 Gunther Teubner ‘Enterprise Corporatism: New Industrial Policy and the Essence of the Legal Person’, American Journal of Comparative Law, Vol. XXXVI, Winter 1988, No. 1. Teubner has been the principal scholar to have introduced Luhmannian theory directly into legal theory, in manifold spheres. See in particular Gunther Teubner and Anne Bankowska, translated by Ruth Adler, Law as an Autopoietic System, Blackwell, Oxford, 1993. 11 precise locations within an overall production structure, and to add-on and remove pieces of this overall structure by chains of contractual links to other commercial bodies. These corporate prostheses may be from another legal jurisdiction, and the finding and fixing of responsibility may be extremely difficult for the law to manage on the basis of the idea of a single legal personality. Equally seriously, the finding of the corporate wallet may be very difficult in an age where money exists primarily as a communication code that is never actually made physical, and can move from one side of the world to the other at the speed of a key-stroke. This has created a great deal of problems for the legal person as an effective management tool, and the reaction of a great many legal commentators has been to say a quick prayer for a happy death and begin the search for a successor. Others maintain that there is plenty of life in the old girl yet, and that the fault lies with an impoverished vision of the concept’s capacities. One such commentator who is unwilling to give up on the legal person is Gunther Teubner. Teubner sees the basic flaw in most theoretical work on the legal person as the undying urge to tie the legal person to a social substratum in the natural person, through some form of biologism.25 For Teubner, this amounts to a misunderstanding of the nature of the way in which collectivities function. In his view the legal person really is the collectivity and this personality cannot be broken down into fragments of more real natural individuals. The reality and value of the legal person emerges not from some working similarity to the natural person, but from the way in which there is a self-referential field of elements and identity (as person) which mutually constitute each other in an operational way; legal operations function on the basis that there is a legal person, and the legal person functions ‘as if’ these legal operations had some real grasp on it. This creates the ongoing being of the legal person, and from that point what sustains the legal person as a socially real and useful tool is the affinity of this concept with notions of collective action in the non-legal world; the viability of the ‘as if’, one might say, depends on the degree to which legal self-referential operations can mimic social self-referential operations. Collectivities, in other words, really do identify themselves as collectivities and act as collectivities, and the legal person is a recognition that this is so. Teubner comments on the fine grain of collective identity as a social and legal construct as follows:

The thesis is that, without being normatively compelled to do so, the law regularly binds up legal capacity with a large set of re-requisites of a particular social reality, which can be described by a ‘unitary concept’. These pre-requisites are: 1) (formally) organised action system; 2) a self-description of a collective identity; and 3) a cyclical linkage of identity and action via mechanisms of attribution… in practice there exists a great correspondence between social structures and legal 25 The status of the natural person within the theory of autopoiesis is well examined in John Paterson, ‘Who is Zenon Bankowski Talking To? The Person in the Sight of Autopoiesis’ in David Nelkin (ed.) Law as Communication, Dartmouth, Aldershot, 1996. 12 structures of corporate personality, which justifies a unitary concept of the substratum as collectivity or corporate actor.26

The ‘corporate actor’ – which can function as a synonym for legal person in the legal field and as a synonym for collective actor in the social field, has a potentially pivotal role in providing a working concept for responsibility and agency attribution that functions both socially and legally. It therefore provides a conceptual tool on a second order level that can be manipulated to produce effects which will hopefully be predictable in both the legal and social fields. 27 To put this in the language of Teubner’s overall theoretical scheme, that of autopoiesis, there is an opportunity to facilitate structural coupling of the legal system and its environment in order to increase the possibility of effective intervention which seeks a particular goal. The essence of the legal person, and herein also lies its great value, is its indeterminate ties to either natural persons or institutions and its determinate structuring activity of offering itself up as an identifiable locus of collective decision making. Within the theory of autopoiesis elements such as the legal person play a vital role, since they stress the historical continuity of a project of extreme abstraction of legal forms. The legal person has been around for a long time and has done a very good job. Legal autopoiesis would seek to recognise the various areas in which a similar degree of theoretical abstraction would aid in the task of effective management through legal forms. Concepts such as the legal person also point up the radicality of the theory of autopoiesis in its seeking to highlight the operation of communications and operations which create identifiable (and self-identified) bodies which act in particular predictable ways, rather than have some ultimate reversion to a model identifying agency and responsibility as human attributes. Autopoiesis first sees the attributes and then infers the body, while humanist theories maintain habeus corpus as their motto, and infer attributes when the physical body is produced. The theoretical untying of legal personality from bone and blood might seem to qualify autopoietic theory admirably for the task of thinking through new law for the new agents of the cyborg age. The hanging question, in the light of the discussions thus far, is the extent to which such a formulation adequately addresses the question of the resistance of such persons to the system, whatever the order of their creation. To put this another way, and recognising Teubner’s

26 Supra note 24 at 142 27 Teubner surveys the argumentative field and lays out the proposal – in the form of an imperative – that ‘It is not pluralism within the firm that justifies the actions of the corporate actor, but the contrary; internal pluralism is legitimate only insofar as it is oriented towards the corporate actor’s goals, with in turn must be legitimized by the firm’s function and performance in society.’ Supra note 24 at 131. Also: ‘The legal person is based not on a mere social relation (Weber) or social structure (Parsons) but on a pulsating sequence of meaningfully inter-related communicative events, that constantly reproduce themselves…’ Supra note 24 at 136. 13 acceptance of the function of the legal person as a function of the legal system which functions ‘as if’ it were a corresponding entity in the social system, the question is the degree to which legal personality can be made flexible enough so as to incorporate also an ‘as if’ relationship to meaningful individual social subjectivity. What kind of legal person is needed as not just social systems but individual social beings incorporate self-reflexivity and self-creation as a feature of their social lives?

Legal subjectivity II: personality as mask

Autopoietic theory is not the only contemporary theory to make great use of the legal person as a central part of an overall theory of law. Pierre Legendre has pointed to the etymology of the term persona as a description of an actor’s mask in Attic drama to legitimate his reading of the

Roman adoption of this as a legal term as an institution of a ‘law of masks’.28 The increased formalisation of legal process in Rome as opposed to Classical Greece led to a move away from the idea of judging the entirity of an individual and their actions within a situation and towards the judging only of an act as related to a rule. The move might be described as one away from an ethical assessment, where ethical goes to individual character in the sense of each person’s reflective relationship to their own pattern of living a life, and towards a moral assessment, where morality goes to compliance with a pre-existing rule on how to behave. If in Greece the fundamental duty was to act in order to cultivate one’s own individual genius to the service of the idea of the polis, then the Roman imperial system for the mass of its citizens functioned on a much simpler code; do as you’re told. Knowledge of the law becomes the central issue, rather than knowledge of the individual, who is stripped precisely of this individuality in order that law may function more efficiently in relation to their mask of legal personality. Roland Barthes has noted how the function and status of forensic rhetoric shifted correspondingly, away from (as in the Athenian trial) a fairly free discursive performance by the accuser and accused within broad overall categories of possible offence – as exemplified by the trial of Socrates and the accusation that he had ‘corrupted the youth’ in some non specific way – to specialised pleadings on specialised issues of fact and law by specialised Roman jurisprudentes.29 Legendre’s principal interest is how individuals become subjects of the law, in other words, the nature of their connections to the masks

28 ‘The person literally derives from persona – which initially means an actor’s mask – and authorises me to translate the formula de jure personam by “the law of the masks”. In all institutional systems the political subject is reproduced through masks.’ Pierre Legendre, Le Desir Politique de Dieu: Etudes sur les montages de l’Etat et du droit, Paris, Fayard, 1988, 225-6 (my translation). 29 Roland Barthes, ‘The Old Rhetoric; An Aide Memoire’ in The Semiotic Challenge, University of California Press, Berkeley, 1994. 14 which are provided in the wider scheme of things. These connections, being connections of the psyche, are conceptualised as necessarily mediated in language and through desire. The legal person within this theory, as with autopoiesis, provides a tool for the displacement of the individual acting human being as the primary focus of interest. Here, however, the human being is not displaced quite so far, for although ‘language’ as an object of interest has the potential to legitimate a self-referential conceptual structure which can do quite well without the human being, it is very much more difficult to separate the notion of ‘desire’ from the affective motions of the human body and soul. The theorist of the Common Law who has most thoroughly taken on board Legendre’s idea of a law of masks and expanded the investigation of the themes of language and desire in law, and in relation to law, has been Peter Goodrich. He has studied the forms of desire which bind people to law, the ethics of law, the rhetorics of law, the history of law, the various institutional languages of law, the laws of personality. The binding to law is a fundamental concern, but Goodrich has exploited to great effect the expansive possibilities of language and desire to ground his multiple interventions into legal theory, seemingly able to see the law in everything and everything in the law. The legal person here might be thought of as a quixotic creature, able to lay down her mask at the drop of a hat, only on the condition of putting on another one but always with the sense that there is something which has an agency in relation to the mask, a two-way relationship between the mask and its wearer.

Both these theories/theorists (Teubner and Goodrich) displace humanism as grounded in a notion of individual self-knowledge and self-presence. Teubner shows up the potential of the person as a concept for building something within a rejuvenated investigation of the value of law in regulating new emergent forms of social rationality, while Goodrich emphasises the nature of the legal person as a feature of holding one in place, and asks what lies beyond the strictures imposed by personality. While one theory uses the legal person as an escape route from the natural person, the human being, the other uses the legal person as a highway to a consideration of the principal humanist concerns of ethics, justice, emotions, desires. In each case there is a displacement of the self-present and self-aware individual rational human agent. But there is little or no taking into account of the social processes which have in any case rendered this type of individual subject an artefact from a bygone age. The effective bi-lateral critique of the natural person misses the fact that we live in an age beyond nature, and beyond subjectivity as personality.

Legal Subjectivity III: character and love

15 This book was conceived as an intervention into this legal territory of the individual and the connections to the social, to language, to desire, to political structures, to the body. In relation to the fascination of the subject beyond merely their existence as a vehicle for the transmission of grander stories, and their readability in such terms, the practice of neglecting a micro-sociology of the subject becomes less and less tenable the more the grander stories themselves seek to exploit the capacity of the individual subject to create innovation within the system or flow of meaning. This book argues that this is precisely the condition which exists within and constitutes our contemporary Western (increasingly ‘global’) society. More particularly, that there is a certain regularity to the changes in subjectivity which are required in different social spheres which amounts to a through-going demand for a re-elaboration of Western subjectivity along particular identifiable lines. The re-alignment of subjectivity includes the re-alignment of emotional processes and sensations, and the pattern of development in this area is the gradual replacement of structures of passion predicated on the ultimate reality of experience and of human nature and the desirability of reaching some final point, with structures of enjoyment, predicated on the convertibility of experience, the necessity of continuous experiment, the importance of imagination as opposed to truth, the value of change as an end in itself.

To re-phrase the points made above in a more explicitly legal register, this book claims that there is a re-formulation of the patterning of normative structures30 which displays an overall regularity through different areas of the social, and which points to the existence of what might be termed a natural law. The natural law is not dictated by nature as fundamental and eternal, but by nature as the materiality of what is; skyscrapers and the space shuttle are as natural as the last few remaining trees in the final remaining rainforests and the dugout canoe snaking its way beneath the overhanging branches. Even this degree of qualification, that is the re-casting of natural law within the troubled theological register of Spinoza rather than the resolutely direct theological registers of Acquinas or Pope Benedict XVI, does not diffuse the force of the point that the fundamental analytic being employed is a legalistic one; to what extent might one say that there is a law of change, and what is the law of this law?

Whatever the degree of complexity of a society a pre-condition of the existence of any group as society is some institution of law which transmits the command and the invitation of how

30 A definition of ‘normative’ may serve to clarify this point, and that offered by Pierre Legendre in the following extract is concise and accurate as regards the way in which the term is being used in this work; ‘In terms of a structural logic, which is to say in terms of the order which presides over the fabrication or structuration of speaking beings, to institute life means the following: to bind or to combine three distinct but indissociable registers, to know the biological, the social and the subjective (inclusive of its unconscious dimensions) orders which constitute the human. The ability to combine these three registers is definitive of the normative function.’ Pierre Legendre, preface, Peter Goodrich, ed. Law and the Unconscious: A Legendre Reader Macmillan, London, 1997, p xiv. 16 to be as a member of that society; the series of structures which institute life, where life is existence within meaning and with the legitimacy to create meaning.31 The human subject, a privileged form of agency but nevertheless a sub-species of social agency overall, is called on to display its capacity to be flexible and to manage contingency in the same fashion that this demand is made of other forms of agency. The materiality of the world calls forth a type of law which has reflective processes built in which allow it to accommodate the changes in nature. It is in this capacity of law to follow the materiality of the world that its tie to the natural lies. Such a tie to the natural is maintained through the development of organs of self-reflection and self-consciousness, coupled to mechanisms for the re-elaboration of the legal programme in line with the call of nature. The natural law then is a law of process, the law of having in place sufficiently complex procedures that self-reflection will facilitate work on the self – ethical work in the Foucaultian sense – that will maintain connection with the materiality of the wider scheme of nature, the environment, the world. In short, this book is seeking the natural law of subjectivity formation, or, trying to reformulate the question of subjectivity in terms of a natural law. The question of institutional legality must be considered within the same cycle of analysis. How can institutional law retain a measure of relevance and authority in the face of the natural laws of social self-organisation?

The four substantive investigations which make up this work are investigations of aspects of contemporary social organisation and subjectivity production within them. To the degree that such contemporary forms differ from what has gone before this project attempts to formulate questions and answers about living and being in this particular time, this ‘present day’, this countdown to the cyborg age. To the extent that it is informed by the insights and techniques of scholarship in autopoietic legal scholarship and other critical legal scholarship which focuses on the integrity of law as a discipline and process, it is a search for an immanent legality in the processes of subjectivity formation. To cut a very long story short, we might call this law, paradoxically in these cynical days, the law of love.

Sites of Subjectivity; a summary of the investigations to follow

Sex and sexuality has been a favoured area for personal experimentation in Western culture for long periods in the twentieth century, in particular since the sexual liberation movements of the

31 This formulation of the ‘institution of life’ is borrowed from Pierre Legendre, ibid, who elaborates the point into the purely psychoanalytic question of ‘the question of the Father, for both the sexes’, page xv. It seems unnecessary, particularly these days when so much has been made of the feminization of culture, to follow Legendre quite this far down his (admittedly critical) patriarchal route. 17 nineteen sixties. Such sexual experimentation has quickened its pace in recent years in response, particularly, to technological developments and to the increasing invalidity of sexual typing based on an idea of the natural. Sexuality, it might be said, is the site where people most obviously and readily reflexively concern themselves with their own patterns of desire. It becomes, therefore, a kind of cutting edge in the production of new desire patterns, particularly within a structure of desire production and fulfilment such as that self-identified as the ‘Queer’ social and theoretical project, which is explicitly based on the idea of ongoing novelty, exploration of limit, creation of new territory for exploration and physical experimentation (rather than pure theorising). This throws up the question of whether the law as an institution can manage to retain a measure of justice in its dealing with the new patterns of desire and experience which are coming into being. If it cannot, then how does this reflect on the legal institution, and what is law losing by failing to engage with forms of subjectivity which are ever more socially available and meaningful.

To the end of exploring various developments within this field, chapter one of this book concentrates upon the field of transsexual and transsgender studies. It lays out several questions as to the nature of sexual beingness, indeed human beingness within the categories of ‘man’ and ‘woman’. The legal support to such categorisation is examined through an analysis of the leading case on transsexuality in the United Kingdom, the case of Corbett v Corbett.32 The result in this case, and even more so the techniques of narrowing social questions of affect to legal questions of responsibility are then measured against legal critical theories in this area, notably the work of Peter Goodrich on law and love. Goodrich’s work is then complemented by an analysis of what may be brought to this field by the kind of sociological work conducted by Niklas Luhmann in his Love as Passion. The suggestion is that a fruitful marriage of sociology and the literary poetics of justice represented by Goodrich is a worthwhile course for legal scholarship to follow.

This chapter, to re-cap, points to the significance of technological change in the developments in potential subjectivity formation in the specific context of sexual practices which involve experimentation on the body, and suggests that legal institutional structures are ever more out of touch in their rigid holding a) to models of definite division between male and female, b) to a calculation of these categories on the basis of either crude biology or medicalised ideas rather than social context and in particular personal identification, and c) to a measurement of human relationship on the basis of acts rather than context and meaning. The suggestion is that the law, in order to move into some position where it might gain a productive affinity to social process has to develop means to incorporate not only sociological insight which allows broader analysis of the social meaning of events, but must also adapt its faculty of judgement so that it does not brutalise the social contexts that it serves through a vicious judgmental reductionism. It is suggested that the 32 Corbett v Corbett [1971] 3 All ER 253. 18 route to follow for the legal institution, that is the judges, lawyers, teachers, in attempting to achieve such a delicate position, is that of becoming self-aware of the nature of law as a theatre of justice, and, especially, of the legal judgement as a species of poetry. The legal judgement’s relation to poetry is drawn from the Gadamerian insight that poetry is defined by its quality of having no word out of place.33 Legal judgement must be less focused on result and more on the value of the institutional announcement as a species of important language. This question of the style of legal pronouncement recalls the path trodden by writers such as Derrida and Cixous discussed above in attempting to achieve analytic investigation and poetic worth at the same time. It is suggested that the link point between the legal and the literary endeavour is the question of justice, of always giving everything its due.

Having completed this analysis of a particular pattern of relationship between law and sexual subjectivity, the next step in this book is to try to investigate more fully some of the patterns by which law might evolve practically in order to provide justice in areas of new social formation, and to try to do so within the bounds of the existing framework of examining subjectivity. If certain analyses discussed in chapter one posited the desirability of escaping from law’s gaze as a route to sexual liberation, then there were other areas of rampant social development where it appears that there are less options for the law to be simply sidelined or ignored, for one reason or another. Most obvious among such sites which have obvious resonance for an investigation of subjectivity is the area of human genetic technology. The second chapter in this book attempts to analyse developments within this field and legal responses to these developments. The emphasis on developments within the field of human genetics is not on the new techniques themselves, or on an analysis of clinical or theoretical genetics as schemes of praxis, but rather on methods of self- organisation and self-regulation which may be observed coming into being within the field. One may observe the transformation of a philosophical field into a quasi-legal practical field, that is, the field of ethical regulation of genetic technology – Genethics. Ethics has come to be regarded within common sense discourses and within various portions of the academy as abstract moral philosophical reasoning. There is a line of ethical conceptualisation, however, running from Greek stoic philosophy, through Spinoza and down to Deleuze contemporarily who emphasise the self- creative reflective nature of all ethical thought and practice, the lack of division between ethical reflection and ontological being. This line of philosophical thought has been most popularised by Foucault, in his re-capture of the idea of ethics as the search for a practically engaged and full life, where ‘happiness’ as the end of life is not measured against an idea of correct conduct in all situations, but against the continual struggle to engage fully with the unending contingencies of life.

33 Hans-Georg Gadamer , Truth and Method, Sheed & Ward, London, 1979.

19 The movement to ethics within genetic self-regulation might be regarded as a display of philosophical maturity within an area of social action. Contrarily it might be viewed as a site where the essence of ethics is being misunderstood as an attempt is made to operationalise and standardise the operations of a ‘green light’ mechanism for research. The legal reaction to such developments is investigated principally through an in-depth look at critical reflection on the state of the field within a special issue of one of the leading contemporary journals, the Modern Law Review special issue on ‘Regulating a Revolution’.34 The conclusion to this investigation of the state of the field is that there is, in this area also, a need for the legal institution to be more imaginative in its approach and to develop its poetic sense of its self, where poetry may be seen to bear the original sense of poiesis, of creation. At this point the chapter turns to an examination of the work of Donna Haraway on cyborgs – cybernetic organisms – as a feature of our contemporary world. The implications of genetic technology for human beingness and social subjectivity are so huge as to hold sway largely in the realms of the imaginary; we simply cannot rationally foresee what changes our capacities to engineer ourselves as a species will bring. This really is a venture where there is scope for auto- constitution, and a necessity for auto-poetry – that is of a creative, imaginative input into this process of self-making – in the face of the tendency for such a process of auto-constitution to be lead by military-industrial or brute economic considerations. The conceptualisation of the entire genetic programme in terms of language, itself a programme of conceptualisation whose history has been plotted and interrogated as to its inherent developmental logic, has very largely managed to insulate itself against the insights of post-structuralist linguistic philosophy, and even against the more material facts of the approach of rationality to imagination within a world ever more open to manipulation. This question of the capacities and potentials of the imagination, highlighted by Niklas Luhmann in his seminal essay on European rationality, is examined in this work through a reading of Donna Haraway’s writings on the cyborg as a creature of myth and contemporary materiality.35

The next stage in the development of the book is to move the analysis up to the level of overall social processes of self-organisation. This is examined in chapter three through an analysis of work practices that may be regarded as forming a large element of what might loosely be termed ‘globalisation’. This chapter attempts to maintain a vision of individual subjectivity formation and the importance of processes of affect and desire management at the same time as laying out some of the grander social processes which form part of the more obvious features of globalisation. Having

34 Roger Brownsword, W.R Cornish, Margaret Llewelyn, ‘Human Genetics and the Law; Regulating a Revolution’ Modern Law Review Volume 61, No. 5, September 1998. 35 See Niklas Luhmann ‘European Rationality’ in Niklas Luhmann, Observations on Modernity, Stanford University Press, Stanford, 1998 .

20 produced an analytic of subjectivity formation within such processes, the question is then posed of how the law might seek to deal, as an institution, with such developments. This question is initially addressed through an examination of the work of Gunther Teubner on legal subjectivity and globalisation. Teubner’s analysis is then complemented by an observation of other processes of self-regulation which can be observed within economic globalisation processes, namely processes of ethical responsibility being promoted as forms of quasi-constitutionalism within business practice, to suggest that even within globalisation there are traces of an immanent law of respect for others born out of the recognition of global interpenetration – a form of interpenetration which recalls the Luhmannian analytic of contemporary love.

Having pointed in the third chapter to immanent processes of constitutionalism within certain forms of globalisation the question arises of the role of traditional politico-legal constitutional patterns and processes as a form of encounter to the changing patterns of the social. The fourth chapter in this book addresses this question through an analysis of a recent constitutional process, that of the 1998 ‘Agreement’ which has instituted a new political order in Northern Ireland. This chapter aims to provide an analysis of the way in which the three tiers of constitutionalism which are instituted by the scheme institute a space in law where it is recognised that identity is never solid at any point, so what comes into play is a the second order process of self-discipline which orders a form of subjectivity. The new character of the law in Northern Ireland is, in other words, invited to make themselves into a citizen in an on-going negotiated relationship to a structure, knowing that their participation rests on their own activity, rather than on the certainties of the structure provided. They are not invited to be simply British or Irish on a common basis with all others within the territory, they are invited to recognise the completeness of their communion with another body of people precisely because they each recognise and respect their difference to each other. The Agreement, in other words, has the form of an agreement to disagree. This chapter returns to the theme of language and justice as prefigured in the first two chapters of this book. Here the particular focus on language is filtered through an examination of contemporary poetry from Northern Ireland which deals with Northern Ireland – the auto-poetry of this place – and questions the link between the poetic imaginary and the institution of a new form of constitutional law. This institution of a new form of law is measured against the theories of Giorgio Agamben on the necessary bases of legal arrangements – as expounded in his seminal work Homo Sacer – with the conclusion that the actual events in Northern Ireland challenge the historical/theoretical conclusions of Agamben and give a hint of a potential different institution of law and legal subjectivity.36

36 Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, Cambridge University Press, Cambridge, 1998. 21 The conclusion returns to the themes of ethical self-creation as a feature of our times, and of the impulse towards developing relationships of interdependence within the parameters of mutual respect and generosity which arises as an immanent feature of social process; the immanent law of love. The idea of human subjectivity, of a notion of human agency which is complex and beyond capture by either humanist ideas of self-presence or systemic ideas of communicative artifact, is promoted not as an ideal but unachievable model, but rather as a paradigm feature of the times coming into being. The idea of legal subjectivity, runs the argument, can and should cogently develop in line with the conditions of structure and agency developed above, moving from legal personality to legal character, from the creature bound by rules to the creature existing in relation to rules but always with the capacity to find ways to challenge them. The principal existing model on which such a development might be based is the idea of the loving subject, in its paradoxical capacity for grounded transcendence. Let Love Rule.

22 23