This copy is for your personal, non-commercial use only.
"Infinite Justice". This was the initial name given to the Pentagon’s offensive against that fuzzy-contoured enemy, referred to by the term of ‘terrorism’. As we know, the name was quickly changed. It had been, as we were told, a case of language excess on the part of a president still inexperienced in the art of nuances. If he had wanted bin Laden "dead or alive", it was obviously due to having seen too many Westerns at too young an age.
Such an explanation left no one convinced. That’s because the ‘dead or alive’ principle isn’t the one from Westerns. On the contrary, it’s quite common to find sheriffs risking their skin to save assassins from a lynch mob, and hand them over to Justice afterward. Infinite Justice, as opposed to the Far West’s whole morality, means justice without limits. It’s justice that ignores all of the categories by which its practice is traditionally circumscribed: distinguishing legal punishment from the vengeance of individuals; separating the law from politics, ethics or religion; separating police forms by which criminals are hunted down from the military forms by which armies engage in battle.
From that point of view, there was no language excess. ‘Nuances’ would be inappropriate indeed. These traces are precisely what characterize the retaliatory operations undertaken by the USA. They involve eliminating the differences that separate war and the police from all the legal forms by means of which we’ve sought to specify and limit the action of war onto justice. We’re no longer talking about ‘dead or alive’, except to say that nobody knows whether the accused is dead or alive. Yet no one knows exactly what the charge is under which the American military is detaining, with the intension of trying, prisoners who benefit neither from POW status nor from the ordinary guarantees granted to defendants with proceedings brought against them. ‘Infinite justice’ states exactly what’s at stake: the assertion of a right identical to the omnipotence hitherto reserved for the vindictive God. All traditional distinctions end up by being abolished with the erasure of international forms of law.
To be sure, this erasure is already the principle of terrorist action, to which political forms and the norms of law are also indifferent. But ‘infinite justice’ is not only the answer to the adversary’s provocation, thus being compelled to share the same field as him. It translates as well the strange status that the erasure of the political nowadays grants to law, within nations and amongst them.
Reflecting on the current state of law reveals an extraordinary inversion of things. In the 1990’s, the undoing of the Soviet empire and the weakening of social movements in major Western countries were usually celebrated as utopias being liquidated from real and social democracy to the benefit of the rules of the State of Right. Whereupon unleashed ethnic conflicts and religious fundamentalism ended by contradicting this simple philosophy of history. But identifying Western triumph as the State of Right’s has also proved to be problematic. That’s because at the very heart of Western powers and in their modes of foreign intervention, the relation between right and fact has evolved in such as way as to tend increasingly toward erasing the boundaries of law.
In these countries, we’ve seen two phenomena emerge. On the one hand, there’s an interpretation of law in terms of the rights granted to a whole series of groups. On the other, legislative practices have aimed at harmonizing the letter of the law entirely with new lifestyles and workstyles, new forms of technology, and the family or social relationships.
This is how the political forum, shaped in the gap between the law’s abstract literalness and the polemics over its interpretations, has been found to have shrunken as much. Thus celebrated, the law increasingly tends to be the record of a community’s lifestyles. Ethical symbolization has substituted the political symbolization of power and its limits, and the law’s ambivalence. What’s now familiar to us is a relation of consensual inter-expression between the fact of a society’s state and the norm of the law.
What the American response asserts is the unmediated likeness of law and fact in the way a community lives. Yet this is also what the American Constitution’s dominant representation symbolizes: the ethical identity between a particular lifestyle and a universal system of values. As we know, ‘ethos’ means sojourn and lifestyle before referring to a system of moral values. The recent manifesto issued by American intellectuals in support of George W. Bush’s policies highlighted this point well: the United States are first and foremost a community united by common moral and religious values, an ethical community more than one of law and politics. The Good, by which the community is founded, is therefor the identity between law and fact. And the crime perpetrated against thousands of American lives can be immediately considered a crime perpetrated against the Empire of Good itself.
Yet for some time already this rise of ethics to the detriment of justice has characterized the forms by which the Western powers have intervened abroad. Blurring the limits between fact and law has taken on another face, one opposite and complementary to consensual harmony, i.e. the face of the humanitarian and ‘humane interference’.
The ‘right of humane interference’ has enabled the protection of some populations of the former-Yugoslavia from ethnic liquidation. However, this was carried out at the cost of blurring symbolic boundaries as well as State borders. It has not only consecrated giving up a structural principle of international law, i.e. the principle of non-inference–whose virtues were admittedly ambiguous. It especially introduced a destructive principle of limitlessness regarding the very idea of the gap separating law and fact, which otherwise endows the law with its status.
Back in the days of the Vietnam War or of the coups American power engineered more or less directly in various regions throughout the world, there existed an explicit or latent opposition between the great principles as asserted by the Western powers and the practices subordinating those principles to their vital interests. The anti-imperialist mobilizations of the 1960’s and 1970’s had denounced this split between the founding principles and real practices. Nowadays the polemics over means and ends seems to have vanished.
The principle behind this disappearance is represented by the absolute victim, a victim of infinite evil, forcing a response of infinite reparation. This ‘absolute’ right of the victim has come to full fruition in the framework of ‘humane’ war. It was backed up during the last quarter century by the major intellectual movement that worked on theorizing infinite crime.
We’ve undoubtedly not heeded the specific features enough of what could be called the second denunciation of Soviet crimes and the Nazi genocide. The first denunciation had aimed at establishing the reality behind the facts while also reinforcing the determination of Western democracies to struggle against an ever-present and ever-threatening totalitarianism. The second kind, developed during the 1970’s as a record of communism, or in the 1980’s when returning to the way in which the European Jewry was exterminated, has acquired a whole new meaning. Not only have the crimes been transformed into the monstrous effects of regimes that have to be fought against, but into the forms whereby an infinite, unthinkable and irreparable crime was made manifest_the work of an Evil power exceeding all legal and political measure. Ethics has become the way to think this infinite evil, which has created an irremediable break in history.
The ultimate consequences of the excess of ethics over law and politics is the paradoxical constitution of an individual’s absolute right whose rights have, in fact, been absolutely negated. This individual actually appears as the victim of an infinite Evil against which the fight is itself infinite. This is the point at which the one defending the victim’s rights inherits absolute right.
The unlimited feature of the wrong perpetrated against the victim justifies his counsel’s unlimited right. American reparation for the absolute crime perpetrated against American lives has brought the process to its culmination. The obligation of attending to the victims of absolute Evil has become identical to the fight without limits against this evil. And this is identified with deploying unlimited military power, acting like a police force in charge of restoring order to every part of the world where Evil can find shelter. This military power is also a legal one, exercising the mythical power of Vengence in hot pursuit of Crime against all alleged accomplices of infinite Evil.
As the saying goes, unlimited right is identical to non-right. Victims and culprits alike fall into the cercle of ‘infinite justice’. These days this translates into the total indeterminacy of the law as it deals with the status of the American army’s prisoners and the way of qualifying the facts held against them.
Hegel had already sunk into the night of the Absolute in which "all cows are gray". The lack of ethical distinction, in which politics and the law drown nowadays, has transformed the prisoners of Guantanamo Bay into captives of the same type of infinite, with gray being switched to orange.
Legal and political symbolization has been slowly substituted by another ethical and police symbolization of the lives of so-called democratic communities and of their relations with another world, identified by the sole reign of ethnic and fundamentalist powers. In the one corner, the world of good: that of consensus eliminating political litigation in the joyous harmonizing of right and fact, ways of being and values. In the other: the world of evil, in which wrong is made infinite, and where it can only be a matter of war unto death.
Jacques Ranciere’s most recent work in translation is Disagreement: Philosophy and Politics, (Julie Rose, translator) University of Minnesota Press, 1998; and in French: L’inconscient esthetique, Galilee, 2001.
Translated for CounterPunch by Norman Madarasz.