Purdue University, USA
Complexity theory figures prominently in recent debates about ethics, justice, contingency, and law. At the heart of such debates, radical reconfigurations of sacred concepts such as rights, principles, and entitlements have led to the re-examination of ethical and legal discourse's provenance and authority. The concept of complexity (“large-scale, nonlinear interaction”), a term used to describe the interaction of a large number of nodes or agents in a dynamic environment, has been used to discuss possible structural resonances between the brain, natural language, artificial intelligence, deconstruction, and the legitimation of knowledge in modern society. Such conceptualizations are in stark contrast to the rule-based descriptions of complexity that impose the rigidness of principled behavior on the nodes that cannot account for the contingency of environmental conditions and localized adaptations.
How can we begin to deploy a theory of complexity to interrogate the symbolic parameters and Habermasian consensus-based limitations that structure any ethical and legal system, and begin to engage in a Lyotardian, Derridean, and Benjaminian interrogation of “ethicality” and “legality” through such a theory of complexity? This article will quibble with the premises and articulation of just such a question and argue that Jean-François Lyotard's The Postmodern Condition, Jacques Derrida's “Force of law: The mystical foundations of authority,” and Walter Benjamin's “Critique of violence” offered theories of complexity long before complexity studies came into vogue. All three of these works recognized the inability of a system of knowledge, legality, or ethicality to transcend the “conditions of its possibility” or to “get outside of itself” to view its systemic effect upon a society. Drawing on Niklas Luhman's appropriation of Humberto Maturana's concept of autopoeisis, we are left to contemplate the ways in which ethical and legal systems “emerge as the by-product of the system's attempt to preserve its own reproduction from the ravages of moral infection” (Rasch, 2000).
Through an examination of these works, in conjunction with many ongoing discussions about complexity theory, we can begin to resolve a conversational absence between the organizational sciences and the humanities. Ultimately, whether we labor in the organizational sciences or the humanities, we are led to the following troubling question: “Are we doomed to system immanence due to autopoeisis in examining ethical and legal systems?” If the answer is “yes,” how can a theory of complexity lead us to an awareness of the process through which this process of autopoeisis occurs, and how can one lead it to “embarrass” itself in legal and ethical discourses? Lyotard, Derrida, and Benjamin offer key answers to these crucial questions.
The “terms” of the Habermasian-Lyotardian debate are by now legion and are in little need of recapitulation. Jürgen Habermas's commitment to a consensus-based discourse ethics stands in stark contrast to Jean-François Lyotard's insistence on a dissensus-generated notion of justice. While Habermas offers us a “theory of communicative action,” Lyotard conducts a sort of intellectual guerilla warfare on the “system,” which he describes as being fueled by the terror of the legitimation game. While Habermas recognizes the development of a “legitimation crisis” within contemporary society due to a variety of discourses competing for the status of “truth” “authority,” and “the story to end all stories”—leading to a loss of faith in all three—Lyotard views the production of a radical notion of illegitimacy as being the result of living within a heterogenous society that he comes to celebrate as bearing witness to the predicament of living within the “agonistics of a network” that we have come to call the postmodern condition, which can be described through a theory of complexity. While Habermas holds tightly to a rule-centered and discourse-governed “reason,” Lyotard seems to commit a heresy in his advocacy of the production of a systems failure that will lead to the renunciation of the grand narrative and an embrace of our petit recits (“local” narratives). William Rasch views Habermas's formulation of a theory of communicative action as a response to societal complexity in that consensus becomes the price of admission into a human community—comprised of individual subjects with perhaps wildly differing notions of the good and the right—that must develop social norms to live in harmony (Rasch, 2000: 32).
Lyotard's The Postmodern Condition: A Report on Knowledge characterizes the postmodern condition as being principled by the “inventor's paralogy” and not the “expert's homology” (Lyotard, 1977: xxv). Paralogy “refers to the uncodifiable moves we make when we communicate with others, and ontologically, the term describes the unpredictable, elusive, and tenuous decisions or strategies we employ when we actually put language to work” (Kent, 1993: 3). Simply put, paralogy is communicative guesswork because it denies the possibility of a logical system that could possibly predict how language interaction will take place. Lyotard states that paralogy “is a move (the importance of which is often not recognized until later) played in the pragmatics of knowledge” (Lyotard, 1977: 61). Paralogy can be viewed as a strategy, positioned outside of systems of logical legitimation, that seek to “subsume” logic and technical skill. Indeed, paralogy claims its “guerilla tactics” by virtue of its marginality in relation to logic. Paralogy is antilogic. It is this power of antilogic that Lyotard describes in the following:
It is necessary to posit the existence of a power that destabilizes the capacity for explanation, manifested in the promulgation of new norms for understanding or, if one prefers, in a proposal to establish new rules circumscribing a new field of research for the language of science. This, in the context of scientific discussion, is the same process Thom calls morphogensesis. It is not without rules (there are classes of catastrophes), but it is always locally determined. Applied to scientific discussion and place in a temporal framework, this property implies that “discoveries” are unpredictable. In terms of the idea of transparency, it is a factor that generates blind spots and defers consent. (Lyotard, 1977: 61)
Lyotard envisions the “science and knowledge of today as a search, not for consensus, but very precisely for ‘instabilities,' as a practice of paralogism, in which the point is not to reach agreement but to undermine from within the very framework in which the previous ‘normal science' had been constructed” (Jameson in Lyotard, 1977: xix). Paralogy provides a tool of epistemological subversion. It is a continually new way to play the legitimation game and keeps the dominant legitimation process continually guessing. Paralogy is the suppressed other in this game. Thomas Kent argues that “without the suppressed other, no logical construct can exist because every logical construct, such as a discursive argument, demands that we ignore or suppress elements that lie outside the construct” (Kent, 1993: 4). Complexity science moves us toward the celebration of the paralogical, allowing for an understanding of the dynamic interactions that characterize social systems.
Paul Cilliers (1998) highlights the ways in which complexity is being put to work in the analysis of contemporary social problems. Through distributed representation, Cilliers circumvents the shortcomings of the rule-based understanding of complexity, because he is able to demonstrate that distributed representation is not representation at all but rather the recognition of localized contingency. Drawing on Lyotard's The Postmodern Condition, Cilliers (1998: 119-20) asserts that postmodern societies meet all of the 10 criteria for complex systems:
Cilliers uses his analogy between complex systems and postmodern societies to dismiss the notion that postmodernism sanctions an “anything goes mentality” in which relativism reigns supreme. Instead, he asserts, postmodernism leads us to new ethical horizons and commitments. He draws on Lyotard to emphasize this point:
The breaking up of the grand Narratives ... leads to what some authors analyze in terms of the dissolution of the social bond and the disintegration of social aggregates into a mass of individual atoms thrown into the absurdity of Brownian motion. Nothing of this kind is happening: this point of view, it seems to me, is haunted by the paradisaic representation of a lost “organic society.” (Lyotard, 1977: 15)
As Cilliers states, “A careful reading of Lyotard shows that his understanding of the individual is formulated in such a way as to counter the idea of fragmentation and isolation that could result from a dismissal of the grand narrative” (Cilliers, 1998: 115). He goes on to argue that individuals constitute part of a vast social scene in which each enters into an “agonistic network” in which discourses compete for legitimacy. Within this framework, paralogy and dissensus rather than homology and consensus “supply the system with that increased performativity it forever demands and consumes” (Lyotard, 1977: 115). Cilliers compares paralogy to self-organized criticality by which “networks diversify their internal structure maximally” (Cilliers, 1998: 117). Ultimately, Cilliers is most intrigued by the Lyotardian concept of justice that is within the postmodern condition. Through the work of Drucilla Cornell and Jacques Derrida, he outlines four criteria for “responsible judgment” in the wake of postmodernism and complexity (Cilliers, 1998: 139-40):
These four criteria could very well be called a “postmodern ethic” or “postmodern attitude.”
Cornell, quoting the work of Nicholas Luhmann, writes that ethics “emerges as the by-product of the system's attempt to preserve its own reproduction from the ravages of moral infection” (Rasch & Wolf, 2000: 99). The conditions of ethics' possibility emerges from the rule-governed structure that sets the parameters of any social system. Indeed, the impossibility of the ethical allows us to speak of ethics. The approbation surrounding justice operates in exactly the same way. Cornell writes: “Justice, in like manner, marks the limits of law, particularly in a modern legal system, demanded by the legal system itself” (Rasch & Wolf, 2000: 102).
Because it is dependent on the rules of law that condition what “can and cannot be,” justice is impossible outside these very conditions of legality. The reliance of lawyers and judges on the concept of stare decisis (“let the decision stand”) precedent, leads to the creation of a system that can be described as complex, because within this system there are a huge number of interacting actors and components. Luhmann finds that a system can be described as complex when there are more possibilities within it than can be realized. Robert Gibbs (2000) writes:
Luhmann's theory focuses on what sort of communications law makes possible. Law, as a mere code, but as a way of organizing interpretations and communications, sorts materials. Law is a process of making texts relevant to the present: it directs the communications to a wide range of materials, stretching back even millennia. But unlike historical discourse, law makes explicit the need for materials to be relevant in the present … Luhmann accentuates how legal reasoning negotiates with precedence, making the legal tradition alive in the present case. Luhmann quips that law serves the continuation of communication by other means, parodying the axiom of war as the continuation of politics by other means. Law directs us to reexamine the previous record, to discover disagreements in the past that can be interpreted in our present. But the value of law for society is precisely its ability to generate many conflicts: to formalize and communicate just what we disagree about. Law not only produces the conflicts, but also the complexity with which to treat the conflicts. The promise of legal judgment provides the space in which dissent flourishes, in which factions can be tolerated. We judge through law in order to allow conflict to become more complex, outside the realm of force. But law marshals the complexities of past and present. (Gibbs, 2000: 215)
Law generates its own complexity by presenting us with a maze of possibilities, of which only one can be realized. Within this maze, the impossibility of justice—one of the possibilities—provides the backdrop against which legal authority parades. Clearly, legal authority involves a paradox that can be best described through complexity theory.
Jacques Derrida's “The force of law: The mystical foundations of authority” (1992) confronts us with the consequences of living within the limits of representation that structure any system of language or thought. This essay questions the inauguration of a discourse that has come to be known as “the Law” through Derrida's close reading of Walter Benjamin's “Critique of violence.” For Derrida, this work, written in the midst of the Nazi German state's ascendance to world power, grapples with the question of the state's justifications for its legal mandates. Samuel Weber writes, “Derrida finds, or rather rediscovers in [Benjamin's ‘Critique of violence'] precisely that ‘différentielle contamination’ that has traversed and troubled his own writings at least from his student days on” (Weber, 1991: 1183).
The gravest atrocities in the course of human history have been sanctioned in the “name” of the law, the nominalization of the law; and in his close reading of Benjamin, Derrida comes to describe deconstruction, law, and justice in a way that complexity theorists cannot fail to appreciate. He writes that “deconstruction occurs in the interval between the deconstructibility of droit (legal authority) and the indeconstructibility of justice.” Through this description of deconstruction in relation to its larger interaction with droit and justice, Derrida presents us with a theory of complexity in the realm of ethics and law.
It is the threatened violence that the state can unleash as one stands before the law with which Derrida (1992) brings us to terms in an address given before the Cardozo Law School in 1991. For Derrida, Walter's Benjamin's “Critique of violence” exercised a deconstructive practice (and, as I would argue, a theory of complexity) prior to the inauguration of deconstruction (or complexity science). Although the law and the law's origins cannot be grasped, the violence that accompanies the law continually manifests itself. Indeed, “a totally non-violent resolution of conflicts can never lead to a legal contract” (Derrida, 1992: 288). A contract, “however peacefully entered into by the parties, leads finally to possible violence. It confers on both parties the right to take recourse to violence in some form against the other, should he break the agreement” (Derrida, 1992: 288). There is an implicit necessity for violence within the law.
The question that concerns us is, what light is thrown on the nature of violence by the fact that such a criterion or distinction [between sanctioned and unsanctioned violence] can be applied to it at all, or, in other words, what is the meaning of this distinction? (Benjamin & Demetz, 1978: 279)
For Benjamin, this distinction is crucial to the operation of the state. For him, the “tendency of modern law is to divest the individual at least as a legal subject, of all violence, even that directed only toward natural ends” (Benjamin & Demetz, 1978: 283). The individual relinquishes their right to commit violence in order to inaugurate the legitimating power of the state to commit sanctioned violence in the name of justice. Benjamin (Benjamin & Demetz, 1978: 287) argues that violence must be either lawmaking or law-preserving; if it is neither, “it forfeits all validity.” Jonathan Boyarin (1991: 1193) writes that “Benjamin's achievement, by breaking the conventional dichotomy between violence per se and non-violence and introducing a hypothetical distinction inside violence, was more to reveal the full extent of mythical violence and to identify an alternative.” Despite drawing this distinction within violence, Benjamin (Benjamin & Demetz, 1978: 286) writes that “in the law of violence over life and death more than in any other legal act law reaffirms itself.”
Benjamin finds that strike law and military law present the legal structure of the state with a paradox, insofar as both enact a violence that the state protects; while at the same time such state-protected violence, if taken to extremes, could threaten the authority of the state. Thus, lawmaking depends on violence to protect the state's authority and power.
For the function of violence in lawmaking is twofold, in the sense that lawmaking pursues as its end, with violence as the means, what is to be established as law, but at the moment of instatement does not dismiss violence; rather, at this very moment of lawmaking; it specifically establishes as law not an end unalloyed by violence but one necessarily and intimately bound to it, under the title of power. Lawmaking is power making, and, to that extent, an immediate manifestation of violence. Justice is the principle of divine end making, power the principle of all mythical lawmaking. (Benjamin & Demetz, 1978: 295)
The state fears this violence simply for its lawmaking character, being obliged to acknowledge it as lawmaking whenever external powers force it to concede them the right to conduct warfare, and classes the right to strike. (Benjamin & Demetz, 1978: 284)
This tendency of law has also played a part in the concession of the right to strike, which contradicts the interests of the state. It grants this right because it forestalls violent actions the state is afraid to oppose. (Benjamin & Demetz, 1978: 290)
However, the state must fear the consequences of the right to strike being taken too far, insofar as the very foundations of the state can be rocked by proletariat revolution. Benjamin relies on Georges Sorel to make this point:
The general strike clearly announces its indifference toward material gain through conquest by declaring its intention to abolish the state; the state was really ... the basis of the existence of the ruling group, who in all their enterprises benefit from the burden borne by the public. (Sorel, 1919: 250)
Derrida elaborates on Sorel's observation by extending it to the context of interpretative reading in the following:
For there is something in the general strike, and thus of the revolutionary situation in every reading that founds something new and that remains unreadable in regard to established canons and norms of reading, that is to say the present state of reading or of what figures the State, with a capital S, in the state of possible reading. (Derrida, 1992)
Benjamin writes that military violence inherently possesses “a lawmaking character” if one concludes it is “primordial and paradigmatic of all violence used for natural ends” (Benjamin & Demetz, 1978: 283). He finds the law of military conscription to be a law preserving violence.
The police represent both lawmaking and law-preserving violence insofar as they represent the state's admission that the law will not always yield decisions or solutions that individuals will accept as fair and just; therefore, the presence of the police force enables the state to authorize itself in two ways: through statute and through the promise of force. Benjamin writes:
The ignominy of such authority, which is felt by few simply because its ordinances suffice only seldom for the crudest acts, but are therefore allowed to rampage all the more blindly in the most vulnerable areas and against thinkers, from whom the state is not protected by law—this ignominy lies in the fact that in this authority the separation of lawmaking and law-preserving violence is suspended. If the first is used to prove its worth in victory, the second is subject to the restriction that it may not set itself new ends. Police violence is emancipated from both conditions. It is lawmaking, for its characteristic function is not the promulgation of law but the assertion of legal claims for any decree, and law-preserving because it is at the disposal of these ends. The assertion that the ends of police violence are always identical or even connected to those of general law is entirely untrue. Rather, the “law” of the police really marks the point at which the state, whether from impotence or because of the immanent connections within any legal system, can no longer guarantee through the legal system the empirical ends that it desires at any price to sustain. (Benjamin & Demetz, 1978: 286-7)
Benjamin paradoxically quips that the monarch's foot soldiers are vastly superior to the police of the democratic state, because the monarch symbolizes the unification of legislative and executive rule, whereas in a democracy the separation between the executive and legislative branches only possesses the pretense of a separation of powers and interests, when in actuality the gravest atrocities are committed through each of them.
Unlike law, which acknowledges in the “decision” determined by place and time a metaphysical category that gives it a claim to critical evaluation, a consideration of the police institution encounters nothing essential at all. Its power is formless, like its civilized states. And though the police may, in particulars, everywhere appear the same, it cannot finally be denied that their spirit is less devastating where they represent, in absolute monarchy, the power of a ruler in which legislative and executive supremacy are united, than in democracies where their existence, elevated by so much relation, bears witness to the greatest conceivable degeneration of violence. (Benjamin & Demetz, 1978: 287)
Within the police forces of democracies, Benjamin recognizes the potential for the evolution of such evil incarnates as Hitler's SS and Stalin's Gulag. With this possibility in mind, Derrida's “The force of law: The mystical foundations of authority” deserves a more thorough treatment.
Douglas Litowitz (1997: 91) identifies five central themes that emerge from Derrida:
First, Derrida wishes to defend deconstruction against characterizations of it as nihilistic and also hopes to convince his readers (audience) that deconstruction can enable justice. Secondly, Derrida wishes to draw a sharp distinction between law and justice by asserting that law is infinitely deconstructible while justice is not.
Derrida seems to think that justice is outside the law; it is a relation or debt from one person to another, an irreducible and incalculable duty to act without thought of repayment. Derrida thinks of justice as something that exceeds the law and perhaps even contradicts the law in extreme cases. Justice is deemed an “experience that we are not able to experience” and involves aporia. (Litowitz, 1997: 92)
Third, Derrida finds that, because justice cannot be fully comprehended nor deconstructed, it never reaches completion; the law will never reach a complete stage of justice. Litowitz writes, “Derrida feels that justice cannot be fully present and can only be experienced as something other than itself. That is, its presence is always deferred, always to come” (Litowitz, 1997: 95).
Fourth, justice is experienced as three aporias. Epokhe of the rule “arises because a judge must follow the law (in the form of legal precedent) yet must also decide each case on its own terms and must be free to overturn or reject (or distinguish) the precedents which impinge upon him or her” (Litowitz, 1997: 95). The second aporia arises from the observation that “a legal case can be decided in favor of either party, depending on the precedents” (Litowitz, 1997: 96). The third aporia arises because justice must be administered immediately but to satisfy the infinite demands of justice one would need infinite time and knowledge (Litowitz, 1997: 96).
Fifth, as part of the responsibility to answering the Levinasian call of the Other, Derrida situates deconstruction as a practice that can be used to “reinterpret the very foundations of law such as they had previously been calculated or delimited” (Derrida, 1992: 97). All five of these themes require a radical interrogation of the legal institution.
Benjamin (Benjamin & Demetz, 1978: 288) writes that “when the consciousness of the latent presence of violence in a legal institution disappears the institution falls into decay.” For Derrida, Benjamin understands that this decay is met with the creation of a conservative violence that is emblematic of the founding violence of the institution.
This repression—and droit, the juridical institution, is essentially repressive from this [Benjamin's] point of view—never ceases to weaken the founding violence that it represents. And so it destroys itself in the course of this cycle. For here Benjamin to some extent recognizes this law of iterability that insures that the founding violence is constantly represented in a conservative violence that always repeats the tradition of its origin and that ultimately keeps nothing but a foundation destined from the start to be repeated, conserved, reinstituted. Benjamin says that founding violence is “represented” (repräsentiert) in conservative violence. (Derrida, 1992: 55)
Derrida (1992: 55) claims that the “founding or conserving violence of droit constitutes an oscillation in which the violence that conserves must constantly give itself up to the repression of hostile counter-violences.”
The critique of violence is the philosophy of its history—the “philosophy” of this history, because only the idea of its development makes possible a critical, discriminating, and decisive approach to its temporal data. A gaze directed only at what is close at hand can at most perceive a dialectical rising and falling in the lawmaking and law-preserving formation of violence. The law governing their oscillation rests on the circumstance that all law-preserving violence, in its duration, indirectly weakens the lawmaking violence represented by it, through the suppression of hostile counter-violence. This lasts until either new forces or those earlier suppressed triumph over the hitherto lawmaking violence and thus found a new law, destined in its turn to decay. On the breaking of this cycle maintained by mythical forms of law, on the suspension of law with all the forces on which it depends as they depend on it, finally therefore on the abolition of state power, a new historical epoch is founded. (Derrida, 1992: 299-300)
It is with the abolition of state power that the possibility of nonviolent agreement becomes realizable.
Benjamin (Benjamin & Demetz, 1978: 289) writes that “nonviolent agreement is possible wherever a civilized outlook allows the use of unalloyed means of aggression.” This unalloyed means of aggression is located wherever “there is a sphere of human agreement that is nonviolent to the extent that is wholly inaccessible to violence: the proper sphere of ‘understanding,' language” (Benjamin & Demetz, 1978: 289).
The distinction between means and violence is once again very much a question of the violence of language, but also of the advent of nonviolence through a certain language. Does the essence of language consist in signs, considered as means of communication as re-presentation, or in a manifestation that no longer arises, or not yet, from communication through signs, from communication in general, that is, from the means/end structure? (Benjamin & Demetz, 1978: 49)
The representational capacity of language instantiates the logocentrism and the “metaphysics of presence” that Derridean deconstruction seeks to dismantle. The logic of the Holocaust arose from an implicit faith in the representational capacity of the sign that parades as a correspondence to the real.
For Derrida, the Final Solution embodied an instance in human history when the limits of our belief in representation were taken to a horrific conclusion. Derrida locates four pitfalls that led to the Final Solution as they reside within Benjamin's “Critique of violence”:
- The radicalization of evil linked to the fall into the language of communication, representation, information (and from this point of view, Nazism has been the most pervasive figure of media violence and of political exploitation of the modern techniques of communicative language, of industrial language and of the language of industry, of scientific objectification to which is linked the logic of the conventional sign and of formalizing registration).
- The totalitarian radicalization of a logic of the state (and our text [“Critique of violence”] is indeed a condemnation of the state, even of the revolution that replaces a state by another state, which is also valid for other totalitarianisms—and already we see prefigured the question of the Historikerstreit).
- The radical but also fatal corruption of parliamentary and representative democracy through a modern police that is inseparable from it, that becomes the true legislative power and whose phantom commands the totality of the political space. From this point of view, the Final Solution is both a historico-political decision by the state and a decision by the police, the civil and military police, without anyone ever being able to discern the one from the other and to assign the true responsibilities to any one decision whatsoever.
- A radicalization and total extension of the mythical, of mythical violence, both in its sacrificial founding moment and its most conservative moment. And this mythological dimension, that is at once Greek and aestheticizing, this mythological dimension also responds to a certain violence of state law, of its police and its technics of right totally dissociated from justice, as the conceptual generality propitious to the mass structure of opposition to the consideration of singularity and uniqueness. (Derrida, 1992: 59)
There is an ávenir for justice and there is no justice except to the degree that some event is possible which, as event, exceeds calculation, rules, programs, anticipations and so forth. Justice as the experience of absolute alterity is unpresentable, but it is the chance of the event and the condition of history. (Derrida, 1992: 27)
Humankind's attempts to understand and symbolize the world in which they live seem ultimately futile in the context of a universe that is beyond comprehension. However, as Nietzsche recognized, any attempt to categorize or interpret the universe is an expression of the will to power. Levinas grapples with this paradox:
Is not this silent world, that is, this pure spectacle, accessible to true knowledge? Who can punish the exercise of the freedom of knowing? Or, more exactly how can the spontaneity of the freedom that is manifested in certitude be called in question? Is not truth correlative with a freedom that is this side of justice, since it is the freedom of a being that is alone? (Levinas, 1969: 90)
Our freedom and willingness to understand and symbolize the limits of our comprehension must be met with the utmost skepticism. The practice of the hermeneutics of suspicion requires eternal vigilance by intellectuals inside and outside of the academy. Walter Benjamin was a visionary in his own right, because of the many ways in which he foresaw many of the politico-ethical problems that were so tragically witnessed during the twentieth century. He warned us that governmentality must be rabidly and continually scrutinized if we are to create a world in which deconstruction will ever have a possibility of yielding justice. Complexity theory provides an essential understanding of how legal discourse maintains its authority under the masquerade of justice.
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