An Unjust Society: Textual Weight and the Law

An objective justice as the measuring stick of civilisational progress succeeds an historical foregrounding of rights and morality, presupposing a set of criteria grounded by textual weight. Fairness, equality, natural right, transactional integrity. These undergird the meaning of justice as both a product of law and the progenitor of that same law. Whether conceived in libertarian doctrines of property ownership and exchange relations[1], Rawlsian concepts of opportunity or a Dworkinian auction of leximin potential[2], all fall back on the objective criteria of judging claims and counterclaims.

Textual weight is used in the Derridean sense of the production of a difference in societal relations, in relation to “différance into the groundless sphere of textuality”[3]. Justice has a two-sided form in the notion of the claim/counterclaim, mirroring difference/différance in the production of a value standard that definitively separates the textual reality (in the production of law that differentiates right and wrong) from the subtext, that which is classified as against or beyond the law.

This emerges in the originary violence of the law, the original mark of differentiation. A parallel concept exists in Schmitt’s state of exception as the function beyond the law. The sovereign exception is the re-emergence of the subtext and the revelation of law’s relativity. By excepting oneself from legal ramifications, one reveals the originary violence as an ongoing process of political accumulation. We’re already reaching the limits of justice as the undergirding framework is itself a subjective disposition defined by that original mark.

Marks are the textual weight that objectivises violence as justified. “The courts of justice, the administration of justice, are the courts and the administration of law”[4]. Yet the structure of these courts requires the excepted sovereign as a guarantor of continual legitimacy. The acts of origination themselves are not judged by the criteria that then defines the justice proffered. Notions of utility related to the success of the project define the mark. Nietzsche notes this in the ethical judgment of an act. “Not alone the beholders of an act generally estimate the ethical or unethical element in it by the result: no, the one who performed the act does the same”[5]. Success confers a legitimacy that failure cannot, a superiority that differentiates this structure from another, historicising the conflict as the prevailing of justice.

Propertarian concepts of justice suffer from this historical negation acutely. Nozick’s and other libertarians’ grounding of justice in ownership (both ownership of self and property as an extension of self) presuppose an objective function of the monadic individual, one that is largely self-sufficient and capable of entering negotiations to stake claims. “Justice (reasonableness) has its origin among approximate equals in power, as Thucydides (in the dreadful conferences of the Athenian and Melian envoys) has rightly conceived. Thus, where there exists no demonstrable supremacy and a struggle leads but to mutual, useless damage, the reflection arises that an understanding would best be arrived at and some compromise entered into. The reciprocal nature is hence the first nature of justice. Each party makes the other content inasmuch as each receives what it prizes more highly than the other. Each surrenders to the other what the other wants and receives in return its own desire”[6].

Equality becomes the presupposed function, as to enter into relations of exchange requires a voluntary acquiescence to the understandings that ground said exchange. Justice then is little more than self-preservation and aggrandisement by exchanging goods and services to acquire necessities and fulfil desires. And the presupposition of equality is little more than a convenient fiction, another example of textual weight that justifies outcomes post hoc. Voluntary exchange premises non-violent means of acquisition and the removal of coercion from decision-making. But how does one arrive at this position?

Cascades of historical claims driven by violence and theft return us back to the originary mark that first differentiated just from unjust claims. Fictional equality is there only to move justice forward, never to reopen historical precedents. The very nature of private property and self-ownership required the violence of law to legitimate their claims. Lockean natural law attempts to escape this bind, using labour-based improvements as the means to justify the expropriation of property (with the proviso of common re-provisioning to add further weight to the claim) in the original state of nature. With the state of nature itself being a theoretical fiction, we see simply more textual weight being added as a backstop to the historical cascades. Fictions on top of fictions. Actually-existing property relations only need the fictions to move exchange-based claims forward, particularly in the transition to capitalist modes of production which needed land expropriation to remove previously defined rights to common land and resources, producing a moveable and nominally monadic labour pool.

Even moving away from such a labourist concept of value can produce similar justifications based on the masking of power relations. As noted in relation to universal basic income, “an unconditional basic income can help create new value structures in the modern world. It moves us away from the idea of work as the measure of societal contribution, and toward a better understanding of an integrated society as containing different forms of work and social value”[7]. In its place could come emancipatory forms of self-actualisation as one is freed from the requirement to sell one’s labour. Equally, a Dworkinian auction of leximin goods as UBI conceives can reproduce sets of market relations that instantiate newly pernicious forms of inequality. Both fulfil the criteria of justice based on greater equalisation of opportunity and outcome, as the potential for greater choice is provided.

On the other hand, it could also mean the implementation of a pervasive paternalism that limits the means or forms of alternative political projects. By mandating a basic income, the means to a livelihood are captured by a set of structures that have no means of redress. Recreating the original violence and preserving the exception. We are still in the realm of comparison, of the weighing of claims based not on alternative power structures but on the choices presented within one structure. Pure difference to demarcate the limits of will and creation.

Mill’s attempt to provide justification to justice maintains the cascade into difference. Mill grounds justice on the twin rationale of animal instincts to right wrongs and the notion of individual rights to be free (as much as is possible) from coercive controls that limit one’s choices. “In the first place, it is mostly considered unjust to deprive any one of his personal liberty, his property, or any other thing which belongs to him by law. Here, therefore, is one instance of the application of the terms just and unjust in a perfectly definite sense, namely, that it is just to respect, unjust to violate, the legal rights of any one”[8]. The assumptions here have already been noted, with the very idea of ownership based on the fiction of an historical equality between exchangers. Its instinctual qualities come out in “the impulses of self-defence, of defence of others, and of vengeance” as “primary moralities”[9]. According more to natural right (as a Hobbesian recognition of unequal power), justice becomes much more contextual, lining up with a subjective disposition of unequal exchange e.g. domination in an established hierarchy.

Such moves closer to Nietzsche’s conceptualisation of justice as “a means to intimidate others from certain acts”[10], setting the stage for a series of scapegoats upon which the marks of justice can be seen. As in Agamben’s homo sacer, there is an inclusive-exclusion[11] at work demarcating the boundaries of legitimised existence and thereby limiting the animality of primitive justice, running it through institutional moorings (those court systems Mill mentioned). Here is the exception and what lies beyond it, the other beyond justice and outside the scope of the law. This animal-subject is a representational mechanism that the marks are placed upon, marking the beginning of a phase of equality before the law.

Contextual variation is further elucidated when Mill notes “the notion of justice varies in different persons, and always conforms in its variations to their notion of utility. Each person maintains that equality is the dictate of justice, except where he thinks that expediency requires inequality”[12] and that the standard of justice as a moral imperative contains a large degree of internal ambiguity.

That Mill then tries to pull this back toward the objective reveals the paucity of his project. “Justice is a name for certain classes of moral rules, which concern the essentials of human well-being more nearly, and are therefore of more absolute obligation, than any other rules for the guidance of life; and the notion which we have found to be of the essence of the idea of justice, that of a right residing in an individual, implies and testifies to this more binding obligation”[13]. The invocation of human well-being and the centrality of the individual show an historical shallowness that maintains justice as a structure of artificial equality. It never escapes an innate instrumentality where concepts of justice are not separable from their originating system, the mark from which the edifice of textual weight expands.

Mill invokes transactional principles of fair pricing to further demonstrate the centrality of justice as a neutral arbiter, yet shows the ambiguity at play when determining fair value by the producer’s bringing the good to market (thus being in a position to demand compensation for his labour/wares) versus the affordability of that same good from the perspective of the buyer (whose capacity to buy is dictated by the circumstances of his income/obligations). The ambiguity becomes entirely self-referential as fairness, much as justice, becomes a perspectival matter. A propertarian position places value in the hands of the equality of the market via subjective valuation – it is the equality of exchange that creates fairness. The historical nature of price controls on essential foodstuffs and the demands of a just price seen in various assizes and peasant riots[14] places fairness in a doctrine of security and leximin outcome.

Claims/counterclaims and their comparability remain the central feature. A similar framework presents itself in Mill’s argumentation ethics – “that is not the way to do justice to the arguments, or bring them into real contact with his own mind. He must be able to hear them from persons who actually believe them; who defend them in earnest, and do their very utmost for them. He must know them in their most plausible and persuasive form; he must feel the whole force of the difficulty which the true view of the subject has to encounter and dispose of; else he will never really possess himself of the portion of truth which meets and removes that difficulty”[15]. Justice to arguments must always be via comparison, all being equal before a final judgment of informed opinion. The bounds of allowable opinion, that which can seek legitimacy, are already foreclosed by who or what controls the public sphere.

That which marks the exception precludes what came before, limiting the possibility of alternative definitions or visions of social organisation by the expansion of textual weight which de-historicises structural origins. Only from the originary violence of a new settlement can claims be recognised and argumentation allowed. The summation of ideas then extends beyond spatiotemporal bounds as an ideological perennial.

Alternatives come not through the prescription of justice/injustice, but from uncovering the marks that difference has cut. Opening difference to différance, the ghosts of ideological perennials and structural limitations. A “doctrine of absolute irresponsibility”[16] that does not attempt the rewards and punishments of an occluded justice. A critique can come in from the likes of Virilio and Bandera of Derrida’s opening of difference as a form of cutting violence of its own. A violence in pursuit of otherness so as to deconstruct the same. “Bandera levels at Derrida–that deconstruction repeats the violence its author aims to critique–when he argues that deconstruction’s assault on metaphysics secures the integrity of the textual sphere, which in turn re-orders the turbulence of the creaking collective”[17].

Virilio, in his idea of the technological accident, repeats the admonishment by focusing on the victims of these turbulent forces. His analysis of dromology is a recognition of the perspectival blurring of speed and the overwriting of sapient reasoning. The conflation of textuality with technicity introduces this deconstructive violence as a force parallel to those turbulent ones – an accelerationist desire to ride the currents of technological/dromoscopic disruption. Yet here seems to sit a neo-romantic nostalgia for the uncompromised, a pre-industrial set of lifeways based on harmonisation. Is this not another mark, another exception that overlays originary violences in the founding of these lifeways? Virilio’s dedication to the victims of modernity is important to recognise the potential avenues precluded, the different industrial pathways possible (as per Lewis Mumford) rather than a simple nostalgia.

Sapient reasoning’s displacement by technological and logistical edifices is happening, and the accidents that occur are themselves means of possibilisation rather than obituaries to a world once known. The opening of difference is a potential means to discover new modes of existence, to move beyond the moribund equalities of a politics that pits folkist escapism against logistical socialisation (the former as unlikely as the latter). “If we don’t continually traverse the circuits/process of action, awareness and communication – via perceiving, modelling, working, revising, working, perceiving, modelling, working, revising – we run the risk of continuing the reactive and maladaptive ad hoc nature of social organizing practiced since the emergence of agriculture”[18]. A world of endlessly precluded options requires breaks beyond the institutional moorings of business ontologies and cultural pastiche.

[1] https://collapsepatchworks.com/2014/12/23/a-just-society/

[2] https://collapsepatchworks.com/2017/01/15/a-justice-based-proposal-for-basic-income/

[3] https://anthropoetics.ucla.edu/ap0602/virilio/

[4] John Stuart Mill – Utilitarianism

[5] Friedrich Nietzsche – Human, All Too Human

[6] Friedrich Nietzsche – Human, All Too Human

[7] https://collapsepatchworks.com/2017/01/15/a-justice-based-proposal-for-basic-income/

[8] John Stuart Mill – Utilitarianism

[9] John Stuart Mill – Utilitarianism

[10] Friedrich Nietzsche – Human, All Too Human

[11] https://anthropoetics.ucla.edu/ap0602/virilio/

[12] John Stuart Mill – Utilitarianism