Drawing the Line

Toward an Aesthetics of Transitional Justice

Carrol Clarkson

• Publisher: Fordham University Press
• Year: 2013
• ISBN:
  9780823254170
• Topic: Philosophy
• Subtopic: Political Philosophy

Drawing the Line examines the ways in which cultural, political, and legal lines are imagined, drawn, crossed, erased, and redrawn in post-apartheid South Africa—through literary texts, artworks, and other forms of cultural production. Under the rubric of a philosophy of the limit, and with reference to a range of signifying acts and events, this book asks what it takes to recalibrate a sociopolitical scene, shifting perceptions of what counts and what matters, of what can be seen and heard, of what can be valued or regarded as meaningful.The book thus argues for an aesthetics of transitional justice and makes an appeal for a postapartheid aesthetic inquiry, as opposed to simply a political or a legal one. Each chapter brings a South African artwork, text, speech, building, or social encounter into conversation with debates in critical theory and continental philosophy, asking: What challenge do these South African acts of signification and resignification pose to current literary-philosophical debates?

PART I

Drawing the Line

1

Drawing the Line

I

“In many ways law is colonialism’s first language,” writes Gary Boire in his afterword to the special edition of Ariel: Law, Literature, Postcoloniality (Boire 2004, 231). This chapter pays attention to this “first language”—the scene of the nomos, that very first significant plough line drawn in the ground, marking the boundary of an arrogated territory. This act of drawing the line is also an “aesthetic act” in the sense that Rancière gives to the term, and that I delineated in the introduction: an act that reconfigures perceptions of what counts, of what matters, and of what is allowed within a designated social order.¹ In Modernism and the Grounds of Law, social and legal philosopher Peter Fitzpatrick speaks of the “spatial locating of law’s range via the obliging etymology of ‘nomos’” (Fitzpatrick 2001b, 91, my emphasis). He goes on to cite Cornelia Vismann’s essay, “Starting from Scratch: Concepts of Order in No Man’s Land,” which describes the “initial scene of the law”:

The primordial scene of the nomos opens with a drawing of a line in the soil. This very act initiates a specific concept of law, which derives order from the notion of space. The plough draws lines—furrows in the field—to mark the space of one’s own. As such, as ownership, the demarcating plough touches the juridical sphere. . . . The primordial act as described here brings together land and law, cultivation and order, space and nomos.

Vismann 1997, 46–47, cited in Fitzpatrick 2001b, 91–92

Vismann’s paper constitutes a reading (“an enthralling account and analysis” in Fitzpatrick’s terms [Fitzpatrick 2001b, 225]) of Carl Schmitt’s influential The Nomos of the Earth, which, in turn, provides an extended reflection on the relation between the arrogation of land and legal title. Schmitt writes about “land appropriation as the primeval act in founding law” (Schmitt 2003, 45); the etymology of nomos—which in Schmitt’s account refers to a boundary line drawn in the soil marking ownership of the land as much as it refers to the rule of law within a community—serves to justify his appeal for a return to a “normative order of the earth” (Schmitt 2003, 39) and as an elaboration of his leading thesis: “Law is bound to the earth and related to the earth” (Schmitt 2003, 42). Peter Fitzpatrick’s nuanced discussion of nomos takes further Vismann’s critique of Schmitt’s relentlessly spatial account of the law, even while Fitzpatrick himself takes the “obliging etymology” of nomos on board. His notion of “the other, responsive dimension of space” (Fitzpatrick 2001b, 93) offers provocative commentary on Schmitt’s understanding of the relation between nomos and the law defined as spatial orientation.

By way of an extended engagement with Fitzpatrick’s reading of Schmitt’s Nomos of the Earth, this chapter proposes what is perhaps a new field of enquiry, namely, an aesthetics of law. More specifically put: If the primordial scene of the law is the act of drawing the line (in both a literal and a figurative sense), then it becomes possible to think through what an aesthetics of law might entail. This chapter does just that, reading Carl Schmitt’s The Nomos of the Earth alongside Martin Heidegger’s “The Origin of the Work of Art,” which was first presented as a lecture in Freiburg in 1935 and then later expanded into a tripartite lecture series delivered in Frankfurt in 1936.

My discussion in this chapter takes the concept of an “aesthetics of law” further than Fitzpatrick himself does in any substantive or explicit way, but at the same time my argument is inspired by an analysis of Fitzpatrick’s literary style. A distinctive feature of this style is his extensive and creative use of quotations from a range of other sources. Literary, philosophical, psychoanalytic, anthropological, and critical-legal texts become the colorful and tightly woven-in threads that make up the fabrics of his own arguments. The sustained, and even foregrounded device of quoting and alluding to other works is characteristic, too, of several of the modernist literary texts to which Fitzpatrick himself refers with such insight.² In my discussions of Fitzpatrick’s work, I play up this allusiveness, following through the aesthetic and ethical implications of the use of citation in his own critical-legal discourse. In his insistent responsiveness to—and incorporation of—the writings of others in his texts, Fitzpatrick not only speaks about but performs what he might call the disruptive ambivalence of instantiating a conceptual field that depends on what is ever beyond but, at the same time, incipient within it. Through its engagement with Fitzpatrick’s writing, this chapter moves toward a philosophical consideration of the limit of the law and on toward a discussion of the relation between law and literature. Interleaving my discussions are references to works by South African writer Herman Charles Bosman (best known for his short stories set in the Marico district of the Transvaal) and to fiction and critical writings by Nobel Prize–winning author J. M. Coetzee.

But let us return to Carl Schmitt and that obliging etymology of nomos—the Greek word for law—which also quite literally refers to a drawing of the line in the soil.

II

In this section I am concerned with the image of the law as fence or nomos, and I begin by picking out and following back to its source one of the citation threads in Fitzpatrick’s Modernism and the Grounds of Law. The passage quoted from Cornelia Vismann’s essay in the opening section of this chapter—and quoted in Modernism and the Grounds of Law—in its turn alludes to Carl Schmitt’s extended reflection on the nomos, a reflection that brings nomos into the field of a philosophical, historical, and politically charged discourse.

In the foreword to The Nomos of the Earth in the International Law of the Jus Publicum Europaeum, Carl Schmitt presents the concept of nomos as having a primordial, foundational, and even chthonic quality. “Human thinking again must be directed to the elemental orders of terrestrial being here and now,” he writes. “We seek to understand the normative order of the earth” (Schmitt 2003, 39). Nomos, for Schmitt, links order and orientation: “Nomos comes from nemein—a [Greek] word that means both ‘to divide’ and ‘to pasture.’ Thus, nomos is the immediate form in which the political and social order of a people becomes spatially visible” (Schmitt 2003, 70). The boundary line, or fence, or wall, for Schmitt takes on an unequivocally positive and spatially visible relation to what is enclosed and, hence, to the law: “The solid ground of the earth is delineated by fences, enclosures, boundaries, walls, houses, and other constructs. Then, the orders and orientations of human social life become apparent. Then, obviously, families, clans, tribes, estates, forms of ownership and human proximity, also forms of power and domination, become visible” (Schmitt 2003, 42).

Further, and importantly in Schmitt, the concrete historical event of land appropriation is intrinsically bound up in the concept of law. Schmitt speaks of land appropriation as being the “archetype of a constitutive legal process”; it “creates the most radical legal title, in the full and comprehensive sense of radical title” (Schmitt 2003, 47). Even further still, it is the historical act of land appropriation that grants conceptual legitimacy to the law: “We must take heed that the word not lose its connection to a historical process—to a constitutive act of spatial ordering” (Schmitt 2003, 71); “it is a constitutive historical event—an act of legitimacy, whereby the legality of a mere law first is made meaningful” (Schmitt 2003, 73). Carl Schmitt approvingly cites the German linguist Jost Trier: “In the beginning was the fence,” says Trier. “Fence, enclosure, and border are deeply interwoven in the world formed by men, determining its concepts. The enclosure gave birth to the shrine by removing it from the ordinary, placing it under its own laws, and entrusting it to the divine” (cited in Schmitt 2003, 74). Thus nomos “is a fence-word” (Schmitt 2003, 75), and “every nomos consists of what is within its own bounds” (Trier 1942, 232, cited in Schmitt 2003, 75).

Schmitt sees the action of the nomos as having three stages: appropriation, division, and cultivation (Schmitt 2003, 351), and the emphasis of his inquiry is on what is inside the boundary, what the fence tells about the enclosed field it delineates. Hence, “this is the original meaning of nomos,” writes Fitzpatrick, citing Dudley Young, “that portion of food-bearing land (we still call it ‘keep’) through which my sheep may safely graze” (Young 1992, 317, cited in Fitzpatrick 2001b, 92). Schmitt notes that from the sixteenth to the twentieth century, the cultivated, and—by extension—the civilized field demarcated by European International Law was taken to be representative of an order applicable to the whole earth. Further, “Civilization was synonymous with European civilization” (Schmitt 2003, 86), and the new world was considered not enemy territory but free space, open to European occupation. But the presumed spatial certainty of what is bounded, unequivocally circumscribed by the nomos, becomes more complex with colonial expansion in Africa. The “crucial distinction between European and non-European or colonial soil,” writes Schmitt’s translator, G. L. Ulmen, “was lost in Africa, and with it the meaning of the legal distinction of ‘beyond the line,’ which separated the reach of European public law from the sphere of lawlessness” (Ulmen 2003, 26–27).

If Carl Schmitt’s thesis is right, then one can surely trace apartheid laws in South Africa back to the time of its colonial arrogations. And if Schmitt’s translator is right, then one can also appreciate how European colonial lines would be far more difficult to draw, justify, and maintain—in spatial terms as much as in political or legal terms.³ Ulmen’s observation leads to the insight that in the colonies, the physical, geographic disaggregation of a single boundary line and the ambit of a jurisdiction brings with it the troubling of the conjunctive metaphoric force of drawing the line and laying down the law.

Literary texts (in contrast to Carl Schmitt’s thesis) offer an appreciation of a much more fraught relation between territorial boundaries and the limit of what is just, perhaps most especially in colonial and postcolonial contexts. My illustrative example here is from the short story “Unto Dust” by South African writer Herman Charles Bosman (1905–51). The story was first published in the journal Trek in February 1949—that is, just months after D. F. Malan’s apartheid Nationalist Party came into power in 1948; the story’s politically subversive undertow is perhaps best appreciated in that context. Although written in English, many of Bosman’s stories capture the rhythms of the Afrikaans language and the practice and mindset of the everyday in the Groot Marico farming district in the Transvaal. Bosman’s irony is deftly executed through the use of a first-person farmer-raconteur, Oom Schalk Lourens:

Once, during the malaria season in the Eastern Transvaal [Oom Schalk relates], it seemed to me, when I was in a higher fever and like to die, that the whole world was a big burial-ground. I thought it was the earth itself that was a graveyard, and not just those little fenced-in bits of land dotted with tombstones in the shade of a Western Province oak-tree or by the side of a Transvaal koppie. This was a nightmare that worried me a great deal, and so I was very glad, when I recovered from the fever, to think that we Boers had properly marked-out places on our farms for white people to be laid to rest in, in a civilised Christian way, instead of having to be buried just anyhow, along with a dead wild-cat, maybe, or a Bushman with a clay pot, and things.

Bosman 2006, 262–23

Oom Schalk mentions this to his friend, Stoffel Oosthuizen, who offers some comforting words against high-flown talk of death as the great leveller. “He would still like to see things proved,” Oom Schalk reports Stoffel Oosthuizen as saying. Schalk continues: “The first time he heard that sort of talk about death coming to all of us alike, and making us all equal, Stoffel Oosthuizen’s suspicions were aroused. It sounded like a speech made by one of those liberal Cape politicians” (Bosman 2006, 263). Stoffel goes on to tell a story (supposedly to “illustrate his contention” that death is not the great leveller) about Hans Welman’s death and about the impossibility, six months later, of distinguishing his bones from those of the black man Oosthuizen killed in the same place in a bush skirmish in the Transvaal. Oosthuizen and his friends have the task of bringing Hans Welman’s remains back to his widow for Christian burial on the farm, which was named Nietverdiend—“Undeserved.” Long after the funeral, the black man’s dog can still sometimes be seen in the vicinity of the graveyard on Hans Welman’s farm. Once Stoffel Oosthuizen has told his story, Oom Schalk comments, “I don’t know whether he told the story incorrectly, or whether it was just that kind of a story, but, by the time he had finished, all my uncertainties had, I discovered, come back to me” (Bosman 2006, 263).

Throughout Bosman’s work, images of fences and graveyards are striking in that they invite thoughts of the mutability and contingency of the human boundaries they are meant to set and stabilize: barbed-wire fences sag and are corroded by rust; memories are obliterated by the erasure of names on stones bleached and weathered by sun, rain, wind, and sand. Traces of human passing are lost as cemetery plots and graves recede, indiscriminately, back into the landscape. Fences and tombstones are poignant reminders of the very phenomena they are meant to keep at bay, to the extent that “those little fenced-in bits of land” seem hardly up to the task of isolating and defining the perimeters of “Boer,” “white people,” “Christian,” “civilised”—or even of human existence itself—as something assuredly different from other animal life. The story that Stoffel Oosthuizen relates, intended to illustrate and justify the idea of what is fenced in (“After all, that was one of the reasons why the Boers had trekked away into the Transvaal and the Free State . . . because the British Government wanted to give the vote to any Cape Coloured person walking about with a kroes head and cracks in his feet” [Bosman 2006, 263]), insists instead on the uncertainties it is meant to fence out.

Bosman’s story, published in February 1949, is surely prescient and subversive in foregrounding the insecurities created by the attempt to explain and justify exclusionary racial, religious, and colonial lines. The magnitude of the apartheid government’s self-constructed sense of threat, at the same time as the publication of Bosman’s story, can surely be registered in the spectacularly divisive laws it instituted immediately upon coming into power: 1949 saw the Prohibition of Mixed Marriages Act; 1950, the Suppression of Communism Act, the Population Registration Act, the Group Areas Act, the Immorality Amendment Act, and the banning of the South African Communist party.

For Herman Charles Bosman’s characters, their predicament is focused through a colonial lens: The “properly marked-out places on our farms for white people to be laid to rest in, in a civilised Christian way” (Bosman 2006, 263), do not seem able to sustain reference to colonial, let alone European soil. The loss of the distinction between the civilized and the uncivilized has an elemental quality beyond the reach of any politics in the thought that “the whole world was a big burial-ground,” that “the earth itself . . . was a graveyard” (Bosman 2006, 263).

Taking the cue from Bosman: The complexity of our understanding of the spatial range of the nomos intensifies as soon as we undertake further serious thinking about the logic of the limit. In thinking the boundary, or the limit, or the fence, one is often led to think foremost of what is supposedly excluded or beyond the range of that limit. In Bosman’s writing, the effect is to satirize racist and colonial a...

Table of contents

• Cover
• Series Page
• Title Page
• Copyright
• Dedication
• Contents
• Acknowledgments
• Introduction
• Part I. Drawing the Line
• Part II. Crossing the Line
• Part III. Lines of Force
• Conclusion
• References
• Index
• Series List