We Prohibited It Because It’s Illegal!, Research Time, 23/03/2018

I haven’t been in the best headspace this week. All I’ve managed to do is get myself together enough to work on my paying gig at the moment, that think tank paper. Even the last few blog entries were exercises in getting through a conceptual block in the paper’s main argument.

It’s been difficult for me to summon energy beyond that, which has caused me to fall behind on some other commitments. And I’m sorry – but depression can be a pain in the ass. A pain in everything else too, which is why they call it depression.

This weekend will be catchup weekend, I’m just going to get tonight’s post finished – actually a short one this time – get a solid night’s sleep, and get back on track.

A long and unnerving shadow.
Art by Marcelo Neira

My thoughts about the nature of law are kind of funny and sometimes too simple. I knew a lot of legal theorists at McMaster, but I shared very different premises about the nature of law than a lot of that research community.

I don’t see law as something you have a moral obligation to obey. I think the law done right encourages ethical activity, encourages people to treat each other with kindness as individuals and with justice through institutions.

Now, that hardly ever happens in real life, so I actually don’t think we have much obligation beyond fear of punishment to follow the law – insofar as it’s the law. If the law happens to coincide with what’s ethically right, we’re obligated morally to follow it – not because it’s the law, but because the law actually encourages justice.

Examples of laws that encourage justice – laws against theft, assault, killing, fraud; regulating acceptable practices for health care, education delivery, utilities provision, record-keeping, ecological protection.

Still rolling through some of my notes on Ian Buchanan’s book about Anti-Œdipus. Bringing Gilles Deleuze and Félix Guattari’s concepts into my projects that involve politics, law, and the institutions of the state means understanding the conceptions of law that they reacted against in their own theoretical development.

What were the concepts that cast the longest shadow?

The Freudian and Lacanian models that dominated French psychiatry around the time of the Paris Uprising was probably the biggest single shadow. Except probably for Marx. That way of thinking had a disturbing concept of law.

Law, on this model, is prohibition. Law exists as one side of a yin-yang complex with desire – each can’t exist without the other. The manifestation of desire simultaneously manifests the law prohibiting it.

Desire can only develop through being continually stamped down.
What kind of political and social philosophy can come from a
premise like this?
Art by Ashley Montague

That law could be institutional if you live in a bureaucratic state, or cultural if you live in what Lacan and the mainstream Parisian intellectual community called a primitive society. But the law is the prohibition of desire which develops along with and in dialectic with that desire.

Deleuze and Guattari’s solution to this was surprisingly practical. You can’t argue against the concept on its own terms, because the concept rests at the premise of the whole discourse. You can’t talk a Freudian out of Freudian thinking by arguing entirely on Freudian terms.

So you stake out an entirely different way of thinking, and show how well those concepts deal with real-life problems the mainstream can’t handle. Psychiatrically, Freudian rationality can’t deal with schizophrenics.

In the legal-institutional context, Freudian rationality understands desire as something that needs its own prohibition to develop at all. It legitimates law as a necessary repression. Law is legitimate because it represses. Politics that considers repression necessary is fascism.*

* Thinking back to Snyder’s essay again. He also lists Freud as a major influence on Ivan Ilyin, the Russian fascist. Ilyin's conclusion that a civilization develops through the collective suppression of our drives as individuals. He seems to be a profound thinker against democracy. Terrifying.