Public (E-Journal, York University)

Ensemble, Critical Art

English

Human Sacrifice in Rational Economy

Morioka, Yoshitomo

BETWEEN MAGIC AND THE ALGORITHMIC IMAGE
YOSHITOMO MORIOKA
Emile Reynaud, often regarded as a pioneer of animation in film,
was a man who led a poignant life. In his later years, he invented a
projection-type animation system called 'le theatre optique.' Antici-
pating the work of Auguste Marie Lumiere and Thomas Edison,
his 'le theatre optique' involved screening images which had been
handpainted, frame by frame, on perforated film. The images were
accompanied by simple but wondrous stories sung in chanson.
The film-feed system was a manually controlled mechanism that allowed improvisational
repetition, rewinding and adjustment of the film speed. This provided for a variety of
tricks of movement, time and perception during the course of the performance. One day in
1910, however, he threw most of his film and equipment into the Siene: he died four years
later. In successive years, improvements in silver chloride film and in cinematic technolo-
gies, as well as in the development of a filmic language, rendered the experimental tech-
niques of Reynaud as increasingly quaint. The endless loops of the phenakistiscope came
to be replaced by the rectilineal movement of narrative film, becoming the paradigmatic
medium of twentieth century art.
Toshio Iwai's experiments with pre-cinematic technologies are meant to recall the
magic that moving images must have possessed, in the days before their tethering to the
logic ~f capital. Iwai's work is nostalgic in the truest sense of the word: not as regression
to a memory of the past, but as an entering into the past to revive such memories as new
knowledge. His journeys into pre-cinematic history reached the end of one stage with the
production of his Time Stratum series. Time Stratum 1 (985) is based on images derived
from dozens of sequential photos (produced by video printer) that are put on the surface
of a rotating cylinder. The cylinder, is then illuminated with a synchronized strobe light.
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If the technique used in this work were no more
than that, any number of examples of this mode
could be found in scientific movies. In this case
however, the cycle of the light (and the changes
in the color of the light as it strobes) have been
obtained by computer processing, recorded on
videotape, and regenerated on a television mon-
itor. The use of the television as the light source
in the piece revives the forgotten technology of
the animation disc through the intermediation
of the computer.
In the second Time Stratum series, Iwai
moved further into the third dimension. In this
piece, several hundred images of the figure are
affixed to a clear turntable created from four
stacked circles of plexiglass. The circles spin at
varying speeds. Mounted above the turntable is
a strobing TV monitor. As in the earlier series,
this work is also based on the principles of the
zoetropic/phenakistiscopic interaction between
flipping movements on a concentric circle and
centripetal/centrifugal movements around the
rotating axis of a turntable. In this work the fig-
ures spin as though participating in an astonish-
ingly elaborate dance. The complex visual
movement of these figures, according to the
artist's explanation, was established not by the
correction of the figures in an overly logical
design, but rather as the natural outcome of the
principles which he had master~d during the
production of an earlier piece, Computer
Phenakistiscope. Iwai's work is thus characterized
by the revival of the magic of forgotten tech-
nologies, in combination with the emerging
world of computer technology. More specifi-
cally, the work from the last several years could,
in a phrase, be characterized by the term algo-
rithmic image. This tenu references a concept
which will prove impossible to ignore if we
hope to better understand the substance of our
contemporary media environment and the place
of computer technology within it.
In the modern sense of the relationship
between technology and artistic expression,
technology is assumed to serve as an intermedi-
ary between what is expressed and the world in
which expression is situated. This is especially
true when technology is regarded as an 'exten-
sion of man' (McLuhan). From this perspective
technology assumes the social function of a
'tool'. Tools such as musical instruments and
paintbrushes are privileged.symbols of our mas-
tery of the means of our self-creation. As long as
we follow this modern (and Platonic) recogni-
tion model, the subject and object of expression
are brought together in a unitary relationship
which corresponds to the relationship estab-
lished by a lens or mirror, or between an actual
and virtual image.
In mathematical terms, the relationship
between an algorithm and data structure is
described as the space of 'function' where no
intuitive prediction can be established between
the. targeted variables and the solution. In the
realm of aesthetics, an alg'orithmic image may
sometimes take the shape of a mimetic image
on a video display or on a print-out. The image,
does not, however, represent a function or its
variables, only an aggregate of 'attributes' on
the output terminal. On the contrary, as in the
production of graphics involving fractal geome-
try, the algorithmic image even provides for the
recursive introduction of one solution as a new
variable to give a visual attribute to a number
of operations, performed until the solution dif-
fuses or converges. It is as though the final
stroke of the paintbrush were perpetually
deferred. The only image allowed on the dis-
play is a superlatively beautiful array of 'dead
bodies of numbers'. An algorithmic image can
therefore be described as a play on formative
indeterminancy, developed by a computer and
an algorithmic computing machine analogous
to it (in A.M. Turing's terms: the human being
as a thinking machine).
Take computer graphics for example. Gener-
ally considered to be a technology for the visual
representation of mathematical abstractions,
they are in fact nothing more than one clue
towards such an understanding (with the
remainder of the accepted model mired some-
where in the dregs of the Platonic model). This
is not what computer graphics truly are; they
are, rather, computer generated images breaking
through one dynamic equilibrium on their own.
They are prepared for their materialization into
a number of forms -like an embryo, that rudi-
ment of plant and animal morphogenesis. With
the embryo,. however, the development process
(the differentiation of individual organs) takes
place according to a biochemical program for
the control of deformation - registered some-
where in the genes - to allow completion of its
final form, while computer graphics have the
potential to release every possible deformation
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beyond what we might imagine. A computer is
not only able to generate forms beyond the
imagination of an ordinary person, but it is also
a medium free from the history of forms, and of
all the restrictions imposed by the formalities
that have controlled the human imagination.
Following the Time Stratum pieces, in com-
puter installations such as Digital Portrait
(1986) and VA Game Il (1987), Iwai raised the
question of classical formalities, re-rendering
them in the language of the algorithm. His
Digital Portrait is based on a video image of the
viewer standing in front of the installation work.
The elements of this image are converted into
digital signals within the computer, and modu-
lated for representation on tl).e display. The
work uses a MS specification computer, one with
a relatively low processing speed, which thus
allows the viewer to observe the process of his
or her image slowly disappearing into a chaos
of noise on the display.
At first glance, its effects appear similar to
those produced by a video synthesizer (widely
used in early video art), or currently available
digital video effect units - though both are
quite different from each other in their aims.
In this computer installation, the 'mirror image
effect' of a real-time video feed (which allows for
the maintenance of one's self id<:ntity through
his or her reflected image) begins to disappear
the moment the viewer presses the digitization
START switch, which allows the viewer to
encounter countless images of themselves in the
alternate nature of the computer. This matter
has been more definitely represented by VA
Game Il, where the pressing of several switches
in an appropriately rhythmic manner allows
simplified human images on the screen to start
movement with music being automatically per-
formed at the same time. This work has been
programmed so that, even if the switches are
manipulated at random intervals, the resultant
melodies and rhythms are produced in a manner
regular enough to make it an 'interactive work'
- allowing for the sensual involvement of even
the most untutored player. In 1987, Iwai pro-
duced a commercially available game software
entitled Otocky (1987), which derived from the
technological principles of AV Game Il. This
work, to be sure, is a sort of shooting game, but
is based on a story concerning the collection of
musical notes escaping out of a sound monu-
ment - ail aggregate of all sounds worldwide -
which is combined with the task of fighting
monsters. This game transcended the concept of
simple science fiction fantasy games then avail-
able, and signaled the emergence of a new type
of narrative game software rooted in the charac-
teristics of an electronic media society. This type
of game often requires the player to maintain
his or her concentration, eventually bringing the
player into a specific state of sober excitement,
or a state of 'game high,' but Otocky is an excep-
tion in that its players can also experience per-
forming music. As a matter of fact, this game is
also equipped with a mode for easy-to-execute
music composition, which allows the player to
enjoy an exclusively musical performance,
releasing him or her from the obligations of
offense and defense.
In addition Iwai has participated in the pro-
duction of some experimental TV progra~ns and
music video works. Among his works of this
kind, the one which first attracted the most
attention was TV Evolution, a midnight program
telecast by Fuji Television on September 12,
1986. The program consisted of a three and a
half hour lecture by economist Akira Asada on
postmodernist image and urban theories.
Graphically, The program was modeled on the
multi-windowing technique common in com-
purer operating systems. The television screen
displayed a plurality of documents and images,
thereby helping the viewer understand the
multi-faceted content of the program. As Paul
Virilio has put it, the concept of television has
recently been undergoing a great change
towards a possible final target of 'the third win-
dow', to the personal information terminal,
which provides for a stratified look into the
outer surface of the information-oriented society
flashing back at a tremendous speed. The
devices that Iwai employed in TV Evolution indi-
cated a course for multi-task TV media formats
to come.
In Japan, as in every media saturated coun-
try, the 1980's brought the advent of the home
video game and the dramatic popularity of the
VCR: events which forever transformed the con-
cept of television. In contrast to the North
American and European context, Japanese cable
networks and satellite television are only now in
the early stages of development, lagging 10-15
years behind these other markets. At the same
time, personal electronic gadgets have pene-
trated the typical Japanese home to a degree
unparalleled in North America or Europe. This
is not the place to analyze the causes of these
differences. I mention them only as way of indi-
cating that these new methods of information
consumption: the VCR, the non-linear story
structures born of video game interactivity and
the visual styles of bitmap graphics (which
didn't exist in traditional visual or comic arts),
did not represent a threat to Japan's mass media
broadcast industry. Rather, they provided an
important stimulus to the young talent working
in the television industry.
By the end of the eighties, the young minds
in Japanese television had acquired the means of
referencing this new culture and forming a new
television language. Shinji Fukuhara, director of
the aforementioned TV Evolution, was one of
these. Entering the 1990's, Fukahara joined once
again with Iwai as technical director to create
the scientific 'news' program Einstein 0989-91),
and children's program Ugo Ugo Lhuga (1992).
Both programs shared techniques for skillfully
synchronizing and recompositing the move-
ments of the performers with those of pre-pre-
pared computer graphic files to produce their
final images.
In order to obtain the quality of computer
graphics typically used in broadcast television,
expensive workstations and enormous produc-
tion budgets are typically assumed from the
outset. In a trade for high resolution, these sys-
tems are not generally 'performance sensitive'.
By using several Amiga computers, Iwai was
able to realize a great volume of graphics,
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manipulating them in real time. Also, the
unique style of the characters and the virtual
'environment' are those which, in the context of
the standards which Nintendo and Sega game
software GUr's (graphical users interface) have
established, do not rely on the power of the
machine, instead demanding the maximum
visual effect from a fixed size of bitmap. While
at first sight the animations seem to share a
common lineage with the tradition of comic
characters represented by Disney and other pro-
ducers of cartoons, they are in fact of a funda-
mentally different order. Born from the
necessities of digital image theory, Fukuhara and
Iwai's unique form of 20th century iconology
depicts an absolutely new digital landscape on
the television screen. Within their world, even
the recomposited live actors and performers
seem to be the products of Iwai's computer gen-
erated imagery.
At present, Toshio Iwai alternates between
his 'museum pieces' and his mass media televi-
sion work. Although the ends may differ, all his
work can be characterized as a rebuttal to for-
mality and rationality; the work manifests itself
as a form of electronic magic, as a 'pageant for
the declaration of knowledge'. At another level,
Iwai's work is an example of risk in contempo-
rary art, involving, as it does, a utilization of the
authority of massive infocapitalism. However, it
does not read word-for-word the ruling decrees
of the world of information and technology. His
work speaks to us through the rearrangement of
these terms, provoking us to wonder.
•


Between Magic and the Algorithmic Image

Access, Public

Julia Scher's Aesthetic Occupations

Lewis, Mark

An Interview with Jeff Wall 
Mark Lewis 
Lewis: Ar t  has always been concerned with articulating a position with regard to the ques- 
tion of rights. To  understand aesthetic rights simply in terms of combating interdiction, 
however, would be to  risk abnegating art's own identity in favour of putative contents that 
may or may not be censored according to the myopic interests of petty state officials. 
The intimate bond that once tied interdiction to art's modus operandi (its historical and 
delicate attempts to  circumvent the laws and protocols that forbade its invasion into cer- 
tain areas of the territorial subject matters of the state, the church, or the privileged) has 
long since expired. Today in the West, art is free to represent what i t  likes with regard to  
subject matter. 
Wall: I think that the critique of art has been approximately accomplished. That is, the 
interrogation of the foundations of its validity has reached a point at which the experience 
of art is now primarily an experience of the problem of its own validity. I do not think that 
this problem is related directly to  the problem of rights. I don't know what "aesthetic 
rights" are. A r t  is covered by the democratic rights to free speech, freedom of expression. 
I have never been concerned with interdiction on the level of subject matter because it 
barely exists in our society. Look at Joel-Peter Witken, for example. The provocations, like 
Robert Mapplethorpe's, are too much a mirror game of publicity to  be artistically interesting. 
Lewis: To  think of aesthetic rights it may be necessary to return to  and rethink the theory 
of disinterestedness articulated by Kant in his Critique of Judgement. A long line of 
commentators have tried to  keep some form of this articulation alive (Schiller, Adorno, 
Greenberg, Focillon, etc.), and they in turn have been subjected to  critical work that has 
undeniably pointed to  some of the impossible engagements that these thinkers have 
entertained with the world. But to  acknowledge these critiques is not at all to  dispose of 
the underlying drama in these, for want of a better word, formalist texts. I wonder how 
that inquiry, that formalist inquiry, might be revitalized and understood now? And  can 
we be sure that this enquiry will not get reduced to a kind of caricature of aesthetic con- 
noisseurship - the name of Walter Pater comes to mind. 
Wall: I am not interested in formalism. I think that the existence of an attitude such as 
formalism is a symptom of the decay of aesthetic language among the intelligentsia and 
the elites who support art. There are obviously many reasons for this, but it 's a sore point 
since Clement Greenberg wrote "Avant-Garde and Kitsch," where he located its causes 
in the decay of the bourgeoisie and the proletariat in the imperialist epoch. The philosoph- 
ical reflection of the inner contradictoriness of art demands an acceptance of the dialecti- 
cal relation of "form" and "content." The collapse of these dialectics, or of the sense of 
dialectical reflection, could be seen as Greenberg sees it, as a symptom of capitalist crisis. 
To  an extent, I think it is that, but I do not want to participate in a "progressive consensus" 
which has been so uncouth about "unprogressive" phenomena, like Matisse, Mallarme, 
Proust, or Huysmans, and many more over the years up to now. The progressive consen- 
sus is itself a symptom of a decline of the left, a decline of the social-democratic elite. For- 
malism is their b6te noire, the taboo that holds them together. There is no formalism in 
art, really. Your question about how we ensure that this does not evolve into a new Walter 
Paterism is itself part of the consensus idea of aesthetic thought. If a new Paterism 
evolves, let it - maybe that will create something marvellous. "We" should desist in imag- 
ining that "we" are called upon to  determine developments in this way. A critique of a neo- 
aestheticism would be a challenge to  the stultified analytical capacities of many members 
of the critical elite. 
Lewis: With regard to the "progressive consensus," I am less sure of its hegemony and 
the strength of the consensual bond that would hold its opinions together. What I would 
say is that the dialectical relation between form and content, the "inner contradictoriness" 
of the work of art, is really a formal concern. What may be at stake here is a general mis- 
understanding of mimesis. Certainly Kant's articulation of this fundamental relation 
between art and nature implies a critique of imitation, and this rigorous and formal think- 
ing of the question of representation is, I suspect, what you find so lacking in what you 
have called the progressive consensus. Formal concerns are central to  the question of the 
work of art's engagement with the world. A t  the same time, we are aware that a certain 
conservative connoisseurship would like nothing better than to return art to  a sort of pre- 
Copernican antitheoretical universe. 
Wall: I would put it a little differently. I'd say that artistic content is realized in the expe- 
rience of the form of a work. A work does make a "formal proposition" but maybe not in 
the form of a proposition. It 's like when Hegel says that a dialectical concept of identity, 
which insists on the "identity of identity and non-identity," must nevertheless be articu- 
lated using the word is: the propositional form of identity. 
In a way, you could say that there isn't any subject matter in a work of art. Subject mat- 
ter is like a pre-text. I t  determines nothing directly artistic about a work, but, as pre-text, 
it determines the generic character of the work that is about to  be made. This is another 
inner contradiction, I think. You begin with a subject, but the content of the subject is 
only made visible ("appears" in the Hegelian sense of necessary appearance) in the way 
the work actually looks - which comes from the ways it is made, formed, realized. 
I am not as negative as you are about what you call conservative connoisseurship. I 
think connoisseurship is an extremely theoretical approach to  art, in principle, since i t  
aims at making the subtlest distinctions between (and within) works. I feel that this termi- 
nology has just become frozen over the years and has lost the sense that critical philosophy 
and ideological critique are aspects of connoisseurship. A "serious" work of ideological 
critique begins from a concept of the "valid" and the "serious" work (or its opposite - 
counterfeit or kitsch). Connoisseurship and a canon of taste are already present in it. The 
academic radicals and conservatives have allowed themselves to  tear apart a discourse 
which is more expansive than either of their positions can recognize. I'm not interested in  
connoisseurship in its auction-house sense and the snobbism of reactionary elites, except 
where fine empirical distinctions are concerned. There, the critical elite would probably 
have a lot to  learn from a connoisseur-like study of the granular or molecular nature of 
individual, physical art works, or objects -wh ich  is what we artists make. 
Lewis: Because you use photography and because you use some of the technologies of 
advertising and public imaging in general, and, above all else, because the subject matter 
of your pictures has tended to  include particular aspects of "public life," your work can be 
understood as reengaging the fundamental connection between the museum and the pub- 
lic life that ought to  make the experience of the former a critical and aesthetic one. How 
might your work be understood as attempting - if indeed i t  is - t o  prolong this right for the 
aesthetic to be taken seriously, its refusal to  be subsumed to a more generalized econ- 
omy? 
Wall: I have always thought that public museums were at least as good a place as any- 
where else to  look at works of art, and think about them. But I have to approach the ques- 
t ion a little differently than you are doing, because the concept of aesthetic rights does 
not work for me. The seriousness of the aesthetic experience, or its being taken seriously, 
is more a question of public literacy and values, of the ethical world created by education, 
urbanism, and the interlinkage of various institutions, including religious institutions as 
well as the museum world, or the art market. Just as you have noted that legislation and 
censorship have not deterred the process of completely opening (and ending) the question 
of the subject matter of art, no mass of "rights," however conceptualized, can substitute 
for the practical construction and preservation of what could be called "worlds of serious- 
ness," established and evolving sites of praxis and reflection which are valued and protected 
by society, by institutions and social capital, and by individuals, by citizens and their prop- 
erty, or private capital. Society already has the legal means to  do this. A r t  can be sub- 
sumed in a more general economy and still be taken seriously - that is, art can be a 
commodity (which it really has to  be in capitalism) and still be taken seriously. The idea 
that the commodity status of art prevents people from taking it seriously and developing 
profound relations with it is another sacred cow of the progressive consensus. We  take 
land seriously and it is a commodity, and this could be said of any other object people 
are seriously involved with. 
Lewis: There can be no argument about whether or not art enjoys commodity status. A s  
your remarks suggest, a work that is not a commodity is a work that must remain com- 
pletely invisible. However, the commodity form is not the sum total of our relations to 
objects and things, and this might explain some of the shortcomings of much recent art 
that has attached its critique single-mindedly to  this aspect of the work's value. I think 
Adorno is useful here. 
Wall: Like Adorno recognized, the orientation here is in terms of the dialectical character 
of use-value and exchange-value, the "identity of their identity and non-identity." The com- 
modity status exhausts no object's whole existence, and art makes that visible as its beauty. 
Lewis: Identity is something which is forcefully raised as a question in your work. A l l  of 
your characters seem to emerge in your photographs in a state of tension with regard to 
identity. They are in effect on the cusp of an interpolation that would grant them a defini- 
tive identity (from bullies, from the police, from employers, from the CIA,  from landlords, 
from rituals, from prescribed moralities, etc.); yet being on the cusp they have not yet 
received that identity. The tension that surrounds them so theatrically is, I think, this sense 
of having not taken the final step, of a resistance - often silent, often no more than a 
barely visible gesture - tha t  is a utopian and perhaps impossible attempt to imagine one- 
self as producing an identity outside of any demand to identify oneself, and therefore to  
be something that is ultimately unknowable (to bullies, to police, to  landlords, to bosses, 
to the state). To  be unknowable, of course, is to be useless, a condition which the aes- 
thetic has a close interest in. 
Wall: This question of the uselessness of art I understand in its more classical sense of 
a negation of the instrumental relation to  things, people, and images. The validity of art 
is involved with this negation, in the name of reflection, and of the dialectical relation of 
vifa acfiva and vifa confemplafiva, as Hannah Arendt, for example, describes it in The 
Human Condition. I like your account of the formation of identity in my pictures - it does 
correspond to my way of thinking about them. Photography has the problem of being a 
very definitive and static mode of representation - it "fixes" things. So I have been inter- 
ested in using the static qualities of the image to focus on something fugitive and intangi- 
ble. This is an aesthetic value which for me often determines the viability of this or that 
subject for a picture. 
Lewis: Photography is now a classical medium. Your work suggests this significantly 
because it seems to point to  the probability that photography has approached the condi- 
t ion of painting. I would like to  ask you about how the two media of cinema and painting, 
the media that technologically and historically antedate and follow photography, meet 
in your images. 
Wall: 1 agree that photography has now become an art, or a medium with status equal to  
that of the older ones. Many of the critical problems have not been resolved (like the status 
of the print in relation to  the negative), but in general the debate about whether photogra- 
phy is an art of high ambition and status is over. I think that the debate about whether 
art will be anything else than photography is also finished. It is clear that the older forms, 
like painting, are not dead - they will obviously continue. We  have just been fascinated 
with the glamour of the "end" of things. I hope that's over too! I always thought that pho- 
tography attained its artistic status by means of the cinema, that before the cinema evolved 
to  the point where it had obviously become a major art form, nobody was in a position to  
comprehend the problems posed by photography in relation to the pictorial traditions. 
When cinema permitted photography to become conscious of itself as art, photography 
also became conscious of itself as nonpainting. The new imaging technologies are warp- 
ing this though, and so now we have not-photography. 
Lewis: Earlier you mentioned Huysmans and I began to think about how in the novel 
Against the Grain, Des Esseintes leaves the realm of "social utility" and his life becomes 
determined by aesthetic concerns. Hence his obsessive interest in smell and taste, which 
are peculiarly productive of the memoire involontaire. The gesture of resistance (to iden- 
tity) in your work is also like the madeleine in Proust, or for that matter the punctum in 
Barthes. It takes the moment out of i ts mise-en-scene. The whiff of its presence allows the 
picture to yield certain truths that are primarily sensed by aesthetic, formal apprehensions 
(and this is why Proust is very close to  Freud). So the decadence that Huysmans stands 
charged with could be another way of describing how he is able to understand this close 
relationship between knowledge and form. I wonder, though, if Huysmans's romanticism - 
and I introduce this new "ism" cautiously - runs the risk of displacing the concerns of, for 
want of a better word, political action into a wholly private, and ultimately unknowable, 
realm of taste. 
Wall: Maybe there is no real risk of the displacement you are concerned about. I do not 
think a concern with the formativity of art threatens the possibility of making political state- 
ments in art. Artistically, there is no other way of making them. Works like Dostoevsky's 
The Possessed, or Goya's Disasters of War, or Hedda Gabler, Olympia, or Rodin's Burghers 
of Calais, certain of Munch's pictures or Grosz's earlier works, Duchamp's Urinal - all have 
political content formulated as philosophical problem and experience of a work, an image, 
or story, etc. Or, referring to the figures you mention, think of Huysmans's analysis of anti- 
clerical extremism in La-bas, or Proust's discussions of the Dreyfus case in his novel. The 
shadings of these works, the fact they open onto different and even conflicting horizons of 
implied political behaviour, is to  me not a problem. It 's a phenomenological condition of 
art. Certainty fleeting along a curve of continually evolving experience is a model of reflex- 
ivity, and of a critical attitude. A l l  these works were and are politically effective enough. In 
art I do  not think that there ever has been the kind of polarity between inwardness and 
activism that you suggest. The relation is elsewhere - maybe it's in terms of the use-value 
of the beautiful? 
Vancouver, October 1993 
The Arresf 
Cibachrome transparency, fluorescent light, display case. 
Image l19 X l60 cm 
Jeff Wall, 1989 



An Interview with Jeff Wall

Cubitt, Sean

The Love That Can't Remember Its Name

Ronnell, Avital

Television and the Fragilitiy of Testimony

Graziano, Frank

The Requirement 
Frank Graziano 
When Antonio de Nebrija presented the first Spanish grammar to Isabella of Castile in 
1492, the queen is reputed to have responded: "Of what use is this?" Nebrija had his 
celebrated response waiting: "Madam, language is the perfect instrument of empire."' 
Nebrija presumably had in mind the function that language serves in homogenizing and 
assimilating diverse cultures incorporated by imperial expansion: as they fall under one 
law, they fall under one grammar. Approaching the issue from the opposite direction, 
however, one further realizes that to speak is to participate in a body of laws, a grammar, 
upon which any system of law is ultimately based. The grammar of language institutes 
the model for all subsequent configurations of laws or rules, and the use of language 
accustoms us to functioning by law and to accepting the governing structures that shape 
the social reality in which we live. 
Language also served more directly as an instrument of empire in the performative 
speech acts which were used by the Spanish - in conjunction with corresponding rituals - 
to legalize Spain's enterprise in the Americas. One simple example of performative discourse 
in the conquest and colonization of Latin America is the Act of Foundation. This spectacle 
is explicitly described in Bernaldo de Vargas Machuca's 1599 handbook for caudillos, where 
the role of the Picota and the required ceremonious participation of Indians are emphasized.2 
Earlier, during the conquest of the Incas, the act was similarly recorded with these words: 
To mark the foundat~on I am making and possession I am taking today, Monday 23 March 
1534, on thispicota which I ordered built a few days ago in the middle of this square, on 
its stone steps which are not yet finished, using the dagger which I wear in my belt, I, Fran- 
cisco Pizarro, carve a piece from the steps and cut a knot from the wood of thepicota. I also 
perform all the other acts of possession and foundation of this city.. .giving as name to this 
town I have founded: the most noble and great city of C u ~ c o . ~  

With a few words and the hocus pocus of some ritualized gestures, Cuzco is thereby 
legally transformed (so far as the Europeans are concerned) from an Incan to a Spanish 
municipality. The Act of Foundation invited objection from the observers, but the natives 
- already conquered when the ceremony took place - were of course ill-disposed for 
dissent and coerced into tacit compliance. The speech acts of the Spaniards were thereby 
empowered and efficacious only when accompanied by their inverted complement: 
the natives' silence. 
The most central role of speech acts in the conquest and colonization of Spanish Amer- 
ica was played by the so-called Requirement, a document first read in the field during 
the 15 14 Pedrarias expedition to Castilla del Oro. An understanding of this document 
requites a few words of background, beginning with the series of Alexandrine bulls 
dated May 3 and 4 ,  1493. 
Following the discoveries of Columbus's first voyage, Pope Alexander VI, a native of 
Valencia and a friend of King Ferdinand, issued three bulls confirming Spanish sover- 
eignty over discoveries already made, as well as all future discoveries in the region, pro- 
vided that the lands were not previously possessed by another Christian sovereign. The 
125 
bulls, in their own words, "donated, conceded and assigned" the New World "by author- 
ity of Almighty God conferred upon us in blessed Peter and of the vicarship of Jesus 
Christ which we hold on earth."* 
The legality of Alexander's donation - highly contentious even in the fifteenth century 
- was grounded in the doctrine of universal papal dominion as developed by Ostiensis 
(Henry of Susa). Ostiensis argued that infidels could retain title to their land only by the 
favour of the Church, and that the pope had the right to appoint them rulers and wage 
just war to bring them to obedience if they failed to recognize his authority. Ostiensis's 
doctrine was originally conceived with the Muslim infidels in mind and reflected - as 
J.H. Parry puts it - "the medieval conception of the world as a homogenous Christendom 
with an infidel fringe."> The doctrine's already questionable validity rapidly eroded with 
the revelation of a new "fringe," a New World, across the seas. But it was precisely this 
unfaltering capacity to view the world from its ethnocentre that enabled the Spanish - 
like any imperial colonizer - to marginalize an indigenous majority and to perceive its 
own miniscule, fortified installation surrounded by grotesquely disproportionate "fringes" 
as the natural order of things willed by God. An expanding European subculture presum- 
ing worldwide prerogative by divine right thus invaded the lands that it intended to 
colonize and by force, discourse, and spectacle inverted hierarchical arrangements to sub- 
ordinate the cultures that it conquered. 
In 15 13 King Ferdinand ordered a committee of theologians to meet in the Dominican 
San Pablo monastery of Valladolid with the purpose of considering Spanish possessions 
in America and establishing the legal status of Indians. The theologians of San Pablo 
ruled that the Alexandrine bulls of 1493 gave America to Spain "as incontestably as the 
promised land of Canaan had been given to the Jews; the Spaniards, therefore, would 
commit no sin by treating the Indians as Joshua had treated the people of Jericho." 
Anthony Pagden further reminds us that this dubious ruling, "with the proviso that any 
Indian who willingly made over his land to the Crown might continue to live there as a 
vassal," was accepted by Ferdinand, who made it operational by ordering that a formal 
proclamation be drafted and provided to all conquistadores for use in the field.6 
The Spanish jurist Juan Mpez de Palacio Rubios, a Council of Castile just-war special- 
ist, drafted the resulting document, known as the Requirement. It was the first royal 
proclamation attempting to legalize and moralize warfare against the American Indians, 
and - as its name implied - its reading was required before an attack could be made on 
the Indians. 
Practical application of this instrument of empire was, of course, ludicrous. The 
Requirement was read in Spanish or Latin, usually without interpretation, and was there- 
fore indecipherable to whatever few natives actually managed to hear it. As J.H. Parry 
words it, the reader often found it prudent "to stand out of range of arrows and slingshots, 
and presumably, therefore, out of earshot."' Even if the Indians were able to hear the 
reading and understand the language or the interpretation, the Requirement's doctrine - 
with its references to pontiffs, Moors, monarchs, saints - was obviously incomprehensible 
in native frames of reference. The absurdity of this "solemn pantomimen8 was further 
enhanced by the various extraordinary circumstances in which the Requirement was read. 
Gonzalo FernLndez de Oviedo describes an attempt to read it to a deserted village, and 
Pizarro first used it in Cajamarca to justify an unprovoked attack on the Inca Atahualpa 
and then incorporated it after the fact into the ceremony celebrating victory in C u ~ c o . ~  
Oviedo, who had occasion as notary to proclaim the Requirement to Indians under con- 
quest, later ironically observed the following: "My Lords, it appears to me that these Indi- 
ans will not listen to the theology of this Requirement, and that you have no one who 
can make them understand it; would Your Honor be pleased to keep it until we have one 
of these Indians in a cage, in order that he may learn it at his leisure and my Lord Bishop 
may explain it to him?"1° The obligatory use of the Requirement was nevertheless still 
taken literally as late as 1542, when Viceroy Antonio de Mendoza had the document read 
to Chichimeca warriors.'' 
The text of the Requirement specifically stated that the king and the queen, as "sub- 
duers of the barbarous nations," had sent conquistadores to inform the natives that 
God created heaven and earth, including Adam and Eve, of whom Spaniard and Indian 
alike were descendants. In the five thousand years since the world's creation, the multi- 
tude of Eden's descendants had gone their various ways, but all of them - no matter what 
their kingdom was and who their leader was - were ultimately responsible to Saint Peter, 
since God 'gave him the world for his kingdom and jurisdiction." I t  is precisely at this 
moment in the text that divine prerogatives - that is, the proprietary rights God enjoys 
with respect to his creation - are disengaged from their heavenly source and are assumed 
in a gesture of mock-delegation by a mortal, Saint Peter, who is numinous by virtue of his 
divine affiliation as the vicar of Christ. The link required to justify imperial theocracy is 
thus established. When Saint Peter passed on, other pontiffs were designated to succeed 
him, the mystery in heaven now governed on earth by mortals progressively more dis- 
tanced - at least temporally - from the saint guaranteeing their authority via his intimacy 
with Christ. One of these popes - as the Requirement puts it in reference to the 1493 
bulls - "made donations of these isles and mainland to the aforesaid King and Queen." 
l27 
With that donation the secularization of power and title is completed: sovereignty over 
the land and its inhabitants - in the present case, the Americas and their natives - passed 
from God through the bridge of Christ as god-man to Saint Peter, from Saint Peter to 
the succession of popes following him, and from one of those popes, Alexander, to secular 
monarchs, who simultaneously but not coincidentally have their secular status down- 
played and their vicarious divinity stressed through a title conferred on by them the pope, 
"Catholic Monarchs." 
It was thus a delegate of Christ himself who appeared before the natives, dressed 
for war but offering peace. The Requirement then "asked and required" that the Indians 
"acknowledge the Church as the ruler and Superior of the whole world, and the high priest 
called Pope, and in his name the King and Queen.. .as superiors and lords and kings of 
these islands and this mainland. . . . " If the Indians were to do so, their highnesses and 
the conquistadores in their name "shall receive you in all love and charity, and shall leave 
you your wives, and your children, and your lands, free without servitude. . . and they 
shall not compel you to turn to Christians. . . . " 
The events, of course, turned out otherwise on all scores. When the Requirement had 
its debut reading by the captain on the Pedrarias expedition, the natives responded by 
stating that if the captain tried to take their lands, "they would put his head onto a pole 
as they had done with the heads of other enemies, which they showed him."12 One spectacle 
is thereby met with another in a pre-battle display of cultural artefacts attempting to 
establish and defend what the rivals respectively perceive as legitimacy. HernBn Cortes 
likewise mentions use of the Requirement in his letters relating the conquest of Mexico, 
but the results are always the same: 
When the captain of artillery read the requerimiento before a notary to these Indians, telling 
them, through the interpreters, that we did not desire war but only peace and love between 
us, they replied not in words but with a shower of arrows. 
On another occasion Cortks notes: 
I began to deliver the formal requerimiento through the interpreters who were with me and 
before a notary, but the longer I spent in admonishing them and requesting peace, the more 
they pressed us and did us as much harm as they could.13 
From the legal perspective, that response to the Requirement was desirable, since it 
was necessary to allow the speech act to perform its most essential function, that of trans- 
forming an imperial conquest into a just war waged to subdue rebels on real estate prop- 
erly deeded to the Spanish crown. The Indians' failure to comply with the demands of 
the Requirement entitled the Spanish, "with the help of God," to "make war against you 
in all ways and manners": "We shall take you and your wives and your children, and shall 
make slaves of them, and as such shall sell and dispose of them. . . and we shall take away 
your goods, and shall do all the mischief and damage we can." Pursuant to just-war the- 
ory, these acts were deemed not malicious or evil but rather the benevolent expressions of 
Christian love made manifest in the punitive wrath designed to bring sinners from their 
wrongful ways. Also typical of such discourse is the assignment of responsibility for vio- 
lence to the very group against which it is directed: the Requirement states that "the 
deaths and losses which shall accrue from this are your fault, and not that of their High- 
nesses, or ours. . . . " The reading of the Requirement thus performed an additional act: the 
reversal of roles between the aggrieved state and the guilty state. The status of the war 
as "just" is established tautologically, and ultimately absurdly, by the Indians' refusal to 
submit voluntarily to their own enslavement, by the projection of guilt onto the attacked 
rather than the attacker, and by justifying the entire enterprise in a tenet that serves as 
proof but cannot itself be proven, namely, the pope's dominion over the world and his cor- 
responding right to delegate it to secular leaders. 
What  ultimately played out in the field through reading of the Requirement was a 
ceremonious redrawing of the lines of jurisdiction, with installation of the European state 
displacing indigenous traditions, imposing a corresponding series of redefinitions and 
hierarchical reversals, and instituting the dubious use of theology that would soon sanctify 
the colonization that followed. The discourse, however, could only provide a script for 
the force; the speech acts, efficacious from the Spanish perspective, ultimately failed to 
perform in a broader view, for the lack of felicity - the dissent of indigenous parties osten- 
sibly bound by the contract - necessitated another requirement, violence, to enforce 
imposition of the conqueror's laws. Without the sword behind it, the Requirement could 
inspire only an echo of Isabella's "Of what use is this?" 
NOTES 
1. Anthony Pagden indicates that Nebrija borrowed the phrase from Lorenzo Valla. See Spanish Imperial- 
ism and the Political Imagination (New Haven: Yale University Press, 1990), 58. 
2. Bernaldo de Vargas Machuca, Milicia y descripcibn de las lndias (Madrid: Pedro Madrigal, 1599), 105-06. 
3. Francisco Pizarro, qtd. in John Hemming, The Conquest ofthe Incas (New York: Ha~est/Harcourt  
Brace Jovanovich, 1970), 142-43. For another example see Americo Castro, Aspectos del vivir hispanico (Madrid: 
Alianza Editorial, 1987), 37. See also Lyle McAlister, Spain and Portugal in the New World, 1492-1 700 (Min- 
neapolis: University of Minnesota Press, 1984), 166. 
129 
4. From the Bull Inter Caetera, in Frances Gardiner Davenport, ed., European Treaties Bearing on the History 
of the UnitedStates andlts Dependencies to 1648 (Washington, DC: Carnegie Institute, 1917), I, 62. 
5. J.H. Parry, The Spanish Theory of Empire in the Sixteenth Century (New York: Octagon Books, 1974), 13. 
6. See Hernin Cortis, Lettersfrom Mexico, trans. and ed. Anthony Pagden (New Haven: Yale University 
Press, 1986), 454. 
7. Parry, Theory of Empire, 7. 
8. J.H. Parry, The Spanish Seaborne Empire (New York: Knopf, 1969), 138. 
9.  Regarding Pizarro, see Hemming, 130. For the famous meeting of Pizarro and Atahualpa in Caja- 
marca, see Agustin de Zirate, The Discovery and Conquest ofPer.6, trans. J.M. Cohen (Baltimore: Penguin, 
1968), 101. 
10. McAlister, 90. 
11. Parry, Spanish Seaborne Empire, 138. See also Mario Gongora, Studies in the Colonial History ofSpanish 
America, trans. Richard Southern (Cambridge: Cambridge University Press, 1975), 41; and Parry, Theory of 
Empire, 7 .  After 1542 use of the Requirement was no longer mandatory. 
12. Silvio Zivala, New Viewpoints on the Spanish Colonization of America (Philadelphia: University of Penn- 
sylvania Press, 1943), 10. 
13. Cartes, 21 and 59, respectively. See also Bernal Diaz, The Conquest of New Spain, trans. J.M. Cohen 
(New York: Penguin, 1985), 70. 



The Requirement

Goodrich, Peter

The Jurisprudence of Difference: Writing Law's Others

Brown, Lachlan

Love is the Law, the Passion of Revolt

Payne, Andrew

Reading Our Rights 
One of the features that has characterized political struggle over the past two decades 
has been the resurgence of a discourse on rights. As a wide variety of recent scholarship 
attests, this resurgence has forced upon the Marxist critique of the merely privative 
nature of rights discourse (as well as upon the "postmodern" variants of that critique) a 
reconsideration of its terms. Specifically, it has forced upon that critique a recognition of 
the irreducibility of political claims (and the forms of incorporation and enfranchisement 
to which those claims give rise) to any economic or "material" determination. It might 
therefore be tempting to see in the "return to rights" a vindication of the principles of a 
liberal polity, that is, of a polity which seeks to maintain a more or less rigorous distinc- 
tion between the rules according to which its citizens gain political franchise and those 
according to which they gain material well-being. In this view, the recent proliferation of 
rights claims would need to be seen within the more general context of the ascendancy 
of a "democratic"/capitalist world order, an ascendancy which would then be taken to 
arise not merely as a result of historical contingencies but as the realization of universal 
principles of justice. As examples of this interpretation, we need only consult the self- 
congratulatory readings the Western media has offered of recent events in East Germany, 
the Soviet Union, and communist China. 
A few observations will serve to give the lie to this account. To begin, we may note 
that part of what is specific to those claims which have emerged so startlingly in contem- 
porary political discourse is their contestation of any version of right which would suggest 
that the material conditions of the claimant's existence have a merely contingent bearing 
on the fact and quality of their political franchise. Of course, were this the extent of the 
novelty forwarded by these claims, they could hardly be thought to pose any grave threat 
to the principles of liberal polity. Notwithstanding liberal theory's recourse to a distinc- 
tion between civil and political societies which is at once cynical and selective, the modern 
liberal state has found it impossible to manage those crises occurring at its margins without 
some version - however implicit or disavowed - of a social right. For what characterizes 
the modern state in its neo-liberal no less than in its Communist forms is its transforma- 
tion of a question regarding the adjudication of right into one of the administration of 
life. In the face of this transformation, however occulted or incomplete, any attempt 
to rigorously distinguish between right and need, political franchise and material well- 
being, must prove as illusory as their revolutionary identification. 
Having acknowledged the above, what proves crucial, and crucially original, in the 
claims under question is that while they can no longer find their source and guarantee 
in the sovereign political institution of the State (they lie outside the purview of the polit- 
ical narrowly defined), they nevertheless continue, and of necessity, to place upon that 
State a demand for recognition. Indeed, the capacity to respond to these claims as they 
arise at the State's periphery has become the condition of the State's legitimacy. This 
peculiarly modern coimplication of civil and political societies (thanks to which the 
self-legislating autonomy of the state can only be forwarded at the expense of a recogni- 
tion of the constitutive alterity of the social) has been brilliantly described by Claude 
Lefort. What for Lefort characterizes modern democracy is the peculiar role it  assigns to 
the social body: that of providing the locus for the process of consensus building from 
which both political and legislative imperatives will arise. But there is, I would suggest, 
an aporia over which Lefort's analysis glosses. For if, as Lefort seems to suggest, the 
formal mechanisms on whose basis the State asserts its self-legislating autonomy must 
have recourse to a social body which would fill out the lacuna left by the disappearance 
of substantial social ties, the supplement offered by that body cannot fail to return that 
substance in the very form the state had thought to expunge; that is, the social body can 
only lend its authority to the political institution in forms that are less self-legislating 
than customary, rooted in traditions that are stubbornly recalcitrant in the face of every 
attempt to recuperate their origins. 
The above statement can be granted, however, only on condition that we supplement 
it with an acknowledgement of the extent to which modernity's reconfiguration of the 
social had the effect of mitigating - without ever entirely evacuating - the customary 
dimension of our relations with others. As Marx emphasizes in "On the Jewish Question," 
the separation of state and civil society had the effect of robbing society of both its tradi- 
tional and its public character, reducing it to a "mass" of competing drives and interests 
stripped of any customarily acquired normative horizon. In order to close the crisis of 
authority opened by this withdrawal of political substance from the civil sphere, it was 
necessary that the state then reintroduce itself in the form of a legalladministrative appa- 
ratus. (Hence Hegel's recognition that the police and the corporation mark the limiting 
conditions on that freedom which characterizes the civil sphere.) The state of right (whose 
customary horizon is putatively that of the "nation") is already, at its very inception, the 
right of state. The question of the people's sovereign articulation is always also that of a 
population's technical administration. 
Where, then, does this leave us with respect to what I am claiming to be the custom- 
ary horizon of recent rights claims? That is, given the fact that these claims aim at some 
form of juridicallpolitical enfranchisement, given, morever, that they do so even as their 
substance remains hetetogenous to the modern state's formal mechanisms for ratifying 
competing versions of the Good Life, how are they to be legally instituted in such a way 
as to retain the challenge they present not to any particular article of the law but rather to 
the formal horizon of modern law in general and as such? Here it is a question not merely 
of getting the law to enforce these claims, but of forcing these claims upon the law, of 
forcing the law to recognize them as the limit placed on the State's capacity to rationally 
recuperate its own origins. This is clearly the case wth respect to claims currently being 
made by Canada's native peoples, as well as with respect to those being made under the 
rubric of a politics of ethnicity. But I would suggest that it is equally, if less obviously, the 
case in the articulation of the political interests of gays and women as well: for here, too, 
it is a question of recovering histories which are not the histories of the nation and its 
legally protected subject, but of collectivities operating unofficially at the margins of the 
state and its legal apparatus. In the extent to which the subjects of such histories are nei- 
ther the individual as sovereign moral agent nor the nation as sovereign political agent, 
their articulation of historically contingent forms of collectivity could be said to return 
to the civil sphere something of that public dimension which had once surrounded it. 
The "contractual" reduction of forms of public responsibility to a negotiation between 
atomized liberties is well-known - not least from its Hegelian critique. However, despite 
the fact that Hegel rejects not merely the contractual ideal of social life in general, 
but, specifically, the contractual understanding of marriage as the mutual holding of 
property in persons, it remains the case that, as Carole Pateman suggests, his definition 
of marriage as the mutual recognition of lovers retains within itself, however covertly, a 
contractual paradigm, a paradigm which then provides the basis for a passage from 
private to public sphere. Here Pateman quite rightly points to an equivocation on Hegel's 
part regarding the question of whether that ethical community represented by the 
family is to be associated with the sphere of natural necessity or with a freedom which 
requires the subject's alienation of itself through the mediation of forms of property. This 
equivocation is clear in the ambivalence which surrounds the corporational status (or non- 
status) of the family: on one hand, that "love" which is the ethical substance of the family 
is prior to the privatized relations that characterize corporations within civil society; on 
the other hand, in the extent to which marital arrangements implying not merely ethical 
but juridical sanction emerge as a necessary feature of family life, the family involves 
something like a contractual binding together of juridically protected and privatized indi- 
viduals. I t  is Pateman's project to show not only the extent to which a contractual privati- 
zation of forms of public responsibility is endemic to modern political life (remaining 
even at the core of Hegel's critique of the contract ), but also to show how this privatiza- 
tion obscures the question of what sort of collective responsibility might fall to us in the 
face of social bonds which prove resistant to contractual rationalization.' In the extent to 
which such a project would assume the possibility of responsibility to these bonds, it 
assumes that their being in excess of the contract demands something other than quasi- 
stoic resignation in the face of biological necessity; i t  assumes, in other words, the histori- 
cal, humanly inflected character of our needs and the relationships to which they give 
rise. Conversely, in the extent to which this historical dimension of human being involves 
something other than the progressive mastery of necessity by a sovereign agent (cognitive, 
practical, and moral) - that is, in the extent to which such an agent will always require, 
as the enabling condition of its freedom, not any particular historical condition but 
history as conditionality in general - the movement from nature to history, from neces- 
sity to right, cannot be thought on the basis of that agent's self-legislating capacity for 
recuperating the pathogenesis of its origins. In sum, Pateman's project involves vindicat- 
ing the presence of collectivities that find the basis for their legitimacy neither in the 
sovereignty of the nation state, nor in the contractual binding of privatized individuali- 
ties, but in the carnal implication of our destinies as we occupy, however contingently, a 
common space and time. 
By carnality, we must understand not simply the corporeal conditions of identity (our 
skin as limit) but also the very limen in and on which that identity is complicated (that 
same skin as threshold). This means that the appeal to the body must involve something 
other than the recovery of an identity or substance (being woman, being black, etc.) which 
the law's formal abstractions would have excluded; it must involve a recognition that the 
body has no given substance prior to the inscription of the socius on it. Now, in the 
extent to which that inscription is identified as "customary," it is seen as arising more or 
less organically from the needs of the body itself (rather than as being imposed by a force 
which acts over against those proper to the body). As Peter Goodrich suggests in "The 
Jurispridence of Difference," according to the customary paradigm of law: "Nature herself 
was deemed the ultimate origin of rules that were older than the oldest human law." 
The status of this immemorial body would of course become problematic for a modern 
legal state that understood its legitimacy to rest not so much in the "substance" of tradi- 
tion (itself grounded in natural law) as in formal mechanisms designed to guarantee free 
self-legislation in a present undetermined by the superstitions of the past. As we have seen, 
that past represents a content which must be at once excluded - as extrinsic to the formal 
mechanisms upon which legal equality depends - and reintroduced - if, indeed, those 
mechanisms are going to have anything to work on. As Dilip Yogasundrum indicates in 
"Writing Cultural Differences into the Law,'' a paradoxical temporality can be seen to 
ensue from the peculiar form of this reintroduction: the extraneity of customary claims to 
the formal principles of the modern legal state can only be recognized retroactively as 
the prehistory of that state. This logic of future anteriority effectively guarantees the 
mythic or figural reification of custom even as it ensures its functional exclusion (a point 
made by Peter Goodrich with respect to the legal mystification of female subjects). 
The task given to those discourses which would return to the law's serial reduction of cul- 
tural difference something of that communality which provided its original context of 
emergence suffers under a similar temporal paradox. In the extent to which these dis- 
courses are themselves forced to read the suffering body through its legal inscription, that 
task must involve something other than a simple recovery of customary (read: natural) 
forms of sociality. For the logic of such recovery is the logic of legal abstraction itself: it 
assumes that the immemoriality of custom can be reduced to a past that would be merely 
a modality of the present. Against this logic we may oppose one which would read 
immemoriality in terms of a post-Heideggerian "always already," that "past" whose patho- 
genesis is immanent and irreducible in the symbolic founding act. I t  is this temporizing 
erance: logic that Derrida identifies under the term diff 
It is because of difflrance that the movement of signification is possible only if each so-called 
"present" element, each element appearing on the scene of presence, is related to something 
other than itself, thereby keeping within itself the mark of the past element, and already let- 
ting itself be vitiated by the mark of its relation to the future element, this trace being related 
as much to what is called the future than to what is called the past, and constituting what is 
called the present by means of this very relation to what it is not; what it absolutely is not, not 
even as past or as future as a modified p re~en t .~  
Any strategy that would attempt to contest the legal reduction of cultural difference 
to that seriality of social facts Yogasundrum describes would therefore need to proceed 
along a double axis: at once continuing to make its claims on the basis of justice's possibility 
and recognizing as the condition of that possibility, its impossibility, that is, the impossi- 
bility of justice realizing itself in the present. In the extent t o  which there will have been justice, 
it will not have been in the form of apresent. It is this articulation - which provides, despite 
its melancholy ring, the very basis of any hope for justice - that Deborah Esch would 
seem to hear in Alice James's determination to respect the rights of death, not simply the 
right t o  death (in the extent to which such a right could be invested in the privacy of any 
singular person), nor even the rights of the dead (in the extent to which such a right could 
be extended to the memory of those who once lived), but the rights of death, of death as 
the operation of the limit that gives us to life. It is death that hollows out that abyss (of 
original repetition) within life, thanks to which a life can claim itself. Hence, the claimant 
can claim its first right, the right to life, only on the basis of its already having been 
claimed by death. Certainly, we must resist the temptation to allow this "mystical" dimen- 
sion of the law to occult the process by which particular, historically derived identities 
attempt to gain some purchase on social justice. However, we must be equally vigilant 
in ensuring that the strategic calculations by means of which these identities are endorsed 
not deafen us to what remains incalculable in the singular suffering of our bodies (a 
suffering which remains irreducible to any problem of material needs). It is in this double 
imperative that we may recognize the task given to us in "reading our rights." 
Andrew Payne 
NOTES 
1. See Carole Pateman, "The Fraternal Social Contract," Civil Society and the State, ( London: Verso, 1988). 
2. Jacques Derrida, "Diffirance," Margins of Philosophy, trans. Alan Bass (Chicago: University of Chicago 
Press, 1978), 13. 


Reading Our Rights

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