“Dirty hands”
Any state or society whose powers are not subject to checks and balances will indulge in excesses.
The idea behind penning the article of February 7 was to problematise what we normally accept as the given. That being so, and given the comments I have got, I failed. Some readers have asked what my point was. It is this desire for clarity in situations that defy neatness that informs our collective approach even as one understands man’s hankering after clarity.
But that is precisely the problem and the point. I took just one situation. What must inform the decision to kill; what calculus must we use? Even when we decide, or can, on the calculus, it should be obvious that the decision to kill someone must presuppose some extraordinary circumstance, some massive deviation from normal life.
If we use the state as the unit of analysis and also presuppose that a large collection of people (society) accept the state and relinquish to it the individual right to violence, then too we cannot allow that right to be used arbitrarily. This is where the concept of due process comes in. Could it be, however, that a society decides that a certain group threatens their way of life and must be declared the enemy, and having done so, revoke their right to due process? That’s possible. But it still leaves us with the problem of how to ensure that the exception thus created does not become the norm?
One of the most noted and controversial German jurists, Carl Schmitt, in his The Concept of the Political posited the friend-enemy distinction as the central theme of sovereignty. “To the state as an essentially political entity belongs the jus belli, i.e., the real possibility of deciding in a concrete situation upon the enemy and the ability to fight him with the power emanating from the entity....”
Schmitt’s idea of power that emanates from the ‘political’ is, in theory, unlimited. It could be argued that this power which decides not just the exception — which is external to law while being made to emanate from it — but also death informs the functioning of the state and in a paradoxically symbiotic relationship to life sustains it.
It is this paradox which Pheng Cheah argued in Spectral Nationality: The Living On [sur-vie] of the Postcolonial Nation in Neo-colonial Globalisation: “[T]he nation’s seemingly inevitable affinity with death is paradoxically inseparable from the desire for life. For the destructive, or, better yet, sacrificial, tendencies of nationalism are part of an attempt to protect or maximise the capacity for life”.
Seen from this perspective, killing those who want to destroy a way of life becomes an extraordinary but justified response to an extraordinary situation. The society sends its own to death in the dialectic that informs the friend-enemy distinction in a mortal contest.
So, what’s the big deal if the state kills a bunch of terrorists outside the law? Unfortunately, much.
Firstly, the state is not all-knowing. Secondly, the state functions through organisations that develop their own culture. Thirdly, such organisations as are entrusted with the exercise of violence on behalf of the state can, over a period of time, develop an extralegal ethos that must be checked. Fourthly, any state or society whose powers are not subject to checks and balances will indulge in excesses. Fifthly, such excesses, if unchecked, will manifest themselves not just against the ‘enemy’ but also in relation to other areas of life. One cannot expect security forces that have developed a general disregard for law to use discretion in some cases while dispensing ‘justice’ outside the law in others. Finally, and this list is far from exhaustive, a general disregard for law and its functioning will render a society abnormal precisely in its quest for normality.
Of course, there is the idea of emergency ethics. There are times when, to save what defines them, a people have to abrogate what defines them. But equally, they must know that what they are doing, or have been forced to do, is not the norm.
And that is where one must point out, debate, check, and when required, establish the reach of law against those who are proven to have exceeded their legal mandate.
There is terrible tension here. Some commentators have suggested that we need to improve the law of evidence. Of course. But to think that doing so will make the tension disappear is to lose sight of the complexity that resides at the intersection of law and politics. Even as we have been faced with this internal war for a decade, we have failed, rather remarkably, to debate issues that defy linear logic.
As Sartre’s character Hoerderer says: “I have dirty hands right up to the elbows. Do you think you can govern innocently?” Maybe not. But should it become the norm?
Published in The Express Tribune, February 10th, 2012.
But that is precisely the problem and the point. I took just one situation. What must inform the decision to kill; what calculus must we use? Even when we decide, or can, on the calculus, it should be obvious that the decision to kill someone must presuppose some extraordinary circumstance, some massive deviation from normal life.
If we use the state as the unit of analysis and also presuppose that a large collection of people (society) accept the state and relinquish to it the individual right to violence, then too we cannot allow that right to be used arbitrarily. This is where the concept of due process comes in. Could it be, however, that a society decides that a certain group threatens their way of life and must be declared the enemy, and having done so, revoke their right to due process? That’s possible. But it still leaves us with the problem of how to ensure that the exception thus created does not become the norm?
One of the most noted and controversial German jurists, Carl Schmitt, in his The Concept of the Political posited the friend-enemy distinction as the central theme of sovereignty. “To the state as an essentially political entity belongs the jus belli, i.e., the real possibility of deciding in a concrete situation upon the enemy and the ability to fight him with the power emanating from the entity....”
Schmitt’s idea of power that emanates from the ‘political’ is, in theory, unlimited. It could be argued that this power which decides not just the exception — which is external to law while being made to emanate from it — but also death informs the functioning of the state and in a paradoxically symbiotic relationship to life sustains it.
It is this paradox which Pheng Cheah argued in Spectral Nationality: The Living On [sur-vie] of the Postcolonial Nation in Neo-colonial Globalisation: “[T]he nation’s seemingly inevitable affinity with death is paradoxically inseparable from the desire for life. For the destructive, or, better yet, sacrificial, tendencies of nationalism are part of an attempt to protect or maximise the capacity for life”.
Seen from this perspective, killing those who want to destroy a way of life becomes an extraordinary but justified response to an extraordinary situation. The society sends its own to death in the dialectic that informs the friend-enemy distinction in a mortal contest.
So, what’s the big deal if the state kills a bunch of terrorists outside the law? Unfortunately, much.
Firstly, the state is not all-knowing. Secondly, the state functions through organisations that develop their own culture. Thirdly, such organisations as are entrusted with the exercise of violence on behalf of the state can, over a period of time, develop an extralegal ethos that must be checked. Fourthly, any state or society whose powers are not subject to checks and balances will indulge in excesses. Fifthly, such excesses, if unchecked, will manifest themselves not just against the ‘enemy’ but also in relation to other areas of life. One cannot expect security forces that have developed a general disregard for law to use discretion in some cases while dispensing ‘justice’ outside the law in others. Finally, and this list is far from exhaustive, a general disregard for law and its functioning will render a society abnormal precisely in its quest for normality.
Of course, there is the idea of emergency ethics. There are times when, to save what defines them, a people have to abrogate what defines them. But equally, they must know that what they are doing, or have been forced to do, is not the norm.
And that is where one must point out, debate, check, and when required, establish the reach of law against those who are proven to have exceeded their legal mandate.
There is terrible tension here. Some commentators have suggested that we need to improve the law of evidence. Of course. But to think that doing so will make the tension disappear is to lose sight of the complexity that resides at the intersection of law and politics. Even as we have been faced with this internal war for a decade, we have failed, rather remarkably, to debate issues that defy linear logic.
As Sartre’s character Hoerderer says: “I have dirty hands right up to the elbows. Do you think you can govern innocently?” Maybe not. But should it become the norm?
Published in The Express Tribune, February 10th, 2012.