Archiving Sovereignty: Law, History, Violence

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Preface Where are your monuments, your battles, martyrs? Where is your tribal memory? Sirs, in that grey vault. The sea. The sea has locked them up. The sea is History. —Derek Walcott, “The Sea Is History” (1976) MY SUNDAYS GROWING UP in Colombo were spent at the beach. My parents would fill the trunk of the car with food and drink and we made the short journey to a beach in Mount Levinia, on the southern outskirts of Sri Lanka’s capital. These “sea baths,” as we called them, were a happy time of simple transgressions. My brother and I found the freedom to escape parental eyes and evade the line by refusing to swim between flags. Diving under and behind waves I watched the distant ships moving across the horizon and imagined traveling the world like those sailors. A borderless world was, for me, an early fantasy born of the sea. Despite this early experience of an island idyll in the Indian Ocean, ethno-national violence and the conundrum of postcolonial sovereignty soon came sharply into focus. Our home was attacked in the violence unleashed on Tamils in July 1983. Sri Lanka’s richly plural and multifaith society turned in on itself. The Singhalese majority and Tamil minority had struggled to establish the conditions of mutual respect and coexistence after independence from Britain in 1948. The legacy of colonial divisions along ethnic lines and the chauvinism of an emerging Singhalese elite sowed the seeds of communal separatism. The disastrous “Sinhala only” language policy of 1956 consolidated divisions and discrimination. Fierce ethno-nationalism fueled by the misguided nostalgia of a Tamil diaspora sustained an armed struggle to establish an autonomous territory for Tamils in the north of the country. A tiny but populous island was absorbed in Page x →a 30-year civil war contesting internal sovereign borders and ethno-national self-determination. This experience left me curious about the formation of identities, and with a growing set of questions about the dangers of sovereign claims linked to “people,” place, and historical dispossession. We left Sri Lanka in 1984 at the beginning of the war between Tamil separatists (the Liberation Tigers of Tamil Eelam, or LTTE) and Sri Lankan government forces that would consume the island and its people until 2009. This journey to Sydney, Australia, was carefully planned by our parents. We were fortunate to have the support of family who lived there, and to travel by air. There was thus none of the degradation suffered by thousands who would later be detained in harsh island-camps for traveling to Australia by sea. Australia extolls a “fair go” and “mateship” but is built, I soon discovered, on untold violence, especially against its indigenous populations. Moreover, the anxious descendants of colonial settlers and erstwhile migrants to Australia unleash unrestrained cruelty in order to protect their sovereign borders. The unease I felt about sovereign assertions following my experiences in Sri Lanka would amplify in my encounter with Australia’s ongoing colonial violence, and the conditions in which many indigenous Australians live and die. My interest in forms, files, and folds of sovereign violence started to gather over these years. As a law student in Sydney in the early 1990s I began to observe a colonial state ratchet up the rhetoric on migration and refugees rather than deal with the inchoate legality of its unsettled sovereignty. The late 1980s saw the introduction of strict legal measures for dealing with refugees. The Australian government established remote detention camps by the sea, like Port Headland in Western Australia. In 2001, under the conservative government of Prime Minister John Howard, Australia’s Indian Ocean territory, Christmas Island, was excised from Australia’s migration zone. Those seeking asylum from persecution were detained in harsh conditions on the

island of Nauru as part of what came to be called the “Pacific solution”: a brutal regime of transportation and detention in remote places with the intention of deterring further boat-migration. These measures limit refugees’ access to lawyers, medical services, and the courts. Over time these camps have proliferated and grown harsher in their treatment of those claiming asylum. The island of Nauru in the Pacific, and later Manus Island northeast of Papua New Guinea, are sites of detention run by private contractors on behalf of Australia. Their purpose is to incarcerate “unauthorized maritime arrivals” who have traveled by boat seeking asylum in Australia. Along with the possibility of openness and freedom, Page xi →then, the ocean and its islands are paradigmatic of what I have come to understand as a 21st century “gulag archipelago.” My early experience of the sea as a site of playful freedom has transmogrified into a sense of the Indian Ocean—its islands, continents, and contiguous zones—as the space of sovereign violence and cruelty. This juxtaposition of the freedom of the sea I experienced as a child growing up on an island, and the fate of thousands either transported to island-prisons or expelled from their island-homes, is what Walter Benjamin would have called a dialectical image. Constructing such “images” is a central technique deployed in this book. The archive of sovereign violence gathered here is informed by Benjamin’s account of how the seemingly archaic past “juts into the present.” But this is far from a linear story from childhood innocence to mature melancholia. Disrupting such an uncomplicated movement of time and understanding is precisely what an archive enables. An archive is in a constant state of flux. This is not only about deterioration and the gathering of dust, but also about growth and law’s constant need to develop new stories cast from old. The stories, fictions, and metaphors that are repeated, altered, and adjusted to be the origin of what is now enable the “images” of sovereign violence to return and be seen in a different and more forensic light. This is not a revelation to be gleaned from a certain method, but the gathering of unconscious and queasy admissions from closer readings of legal texts. If law’s archive authorizes everything and nothing, there is no comfort for the judge who must still smuggle in by way of fictions what reason will not allow. Archiving Sovereignty assembles an archive of violence gathered, mediated, and sustained by law. It is the culmination of research that I have only retrospectively understood as the catalog of a journey that has traversed islands, oceans, and several continents. I returned to Sri Lanka at the end of the civil war in 2009. By then I had lived and worked in Australia, made a home in London, and spent much of the last decade researching and writing about the postapartheid social and legal formations of South Africa. Looking out to sea from the beaches that were my playground as a child, Derek Walcott’s phrase describing the sea as a “grey vault” drew together in one image the coordinates of my sites of research. Suddenly I had sight of an image: the Indian Ocean as archive of the present. Violence unleashed by sovereign formations in Australia, Sri Lanka, and South Africa manifests many continuities and ready comparisons. Each has been a racial formation ruled by Britain. Questions of identity, indigeneity,Page xii → race, and ethno-national difference continue to mark their political and social conflicts. Legacies of violence and dispossession continue to challenge the attempts at legal dispersal of these problems. At the center of the ocean shared by Australia, South Africa, and Sri Lanka is the Chagos Archipelago. If British colonial domination had risen and receded in Australia, South Africa, and Sri Lanka, it was maturing and consolidating itself with archaic sovereign zeal in the Chagos Islands in the latter part of the 20th century. That is one reason for the Chagossian predicament being discussed at the outset of this book. With the exile and expulsion of the Chagossians by the British government we have a palpable example of the archive of sovereignty being anything but a matter of a time past. A great deal of multidisciplinary Indian Ocean scholarship has already displaced the American poet Charles Olsen’s assertion that the history of the world may be summed up by three oceans and their corresponding poets: the Mediterranean with Homer, the Atlantic with Dante, and the Pacific with Herman Melville. My study is a small contribution to that correction—especially in the context of legal studies. Whether this book is watery enough to fulfill that ambition is for others to judge. The sites of inquiry that have informed this book are

contiguous with the Indian Ocean. Its “fatal shores” are shared by the Chagos Archipelago, Australia, and South Africa. I hope the reader will encounter their own dialectical images as they make their way through this book. This archive of sovereignty will be a collaborative construction. Law as archive of sovereignty constitutes the present. The Indian Ocean—its islands and continental shorelines—are a material site of this archive. The Indian Ocean as archive of the present is a trope drawn from a pelagic commonality that has permeated my work. London, July 2017

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Acknowledgments THE MATERIAL DISCUSSED in this book spans several continents. My debt of gratitude for the generosity and intellectual companionship that made it possible to write it is just as vast. I am fortunate to have had Valerie Kerruish as a teacher and friend who inspired me to be an academic. With Uwe Petersen, Valerie founded the Altonaer Stiftung fГјr philosophische Grundlagenforschung in Hamburg. Their generosity created the space for the best kind of intellectual companionship that I enjoyed with others over many years. I was also fortunate to have the support of the Altonaer Stiftung for the manuscript of this book to be discussed with Valerie, Emilios Christodoulidis, Stephanie Jones, Tarik Kochi, Dan Matthews, and Karin van Marle in Hamburg in October 2016. Their critical engagements and helpful suggestions vastly improved this book. Karin van Marle has been an intellectual companion and friend over many years. My regular visits to teach at the University of Pretoria’s Department of Jurisprudence, and the many conversations with Karin and Danie Brand in Sunnyside, have enriched my work immensely. The late AndrГ© van der Walt was a scholar of a kind rarely seen at universities these days—and I had the good fortune to have spent many visits to Stellenbosch learning from him. AndrГ© was an enthusiastic promoter of the Genres of Critique project that Karin and I directed at the Stellenbosch Institute for Advanced Study. Tshepo Madlingozi and Mogobe Ramose have generously shared ideas and helped to open some of the difficult questions about sovereignty and decolonization discussed in this book. My doctoral research under the supervision of Peter Fitzpatrick continues to be a rich intellectual seam that I draw from. Peter nurtured my research and introduced me to many of the thinkers that are central to the arguments developed here. The Law and Social Sciences network of South Asia, admirably headed Page xiv →by Pratiksha Baxi for over a decade, has opened collaborations that continue to flourish. Across South Asia the LASS conferences have been an important hub for generating an alternative pole for driving legal and social theory. I am grateful, then, for many conversations with Pratiksha Baxi, Upendra Baxi, Mathew John, Lawrence Liang, Deepak Mehta, Abdul Paliwala, Mani Shekhar Singh, and Mayur Suresh. Malathi de Alwis and Pradeep Jeganathan have generously shared their intelligence and warmth with me on several visits to Sri Lanka. Ideas, food, wildlife, and beautiful settings were made far richer in their company. I was immensely fortunate to meet the late Sithie Tiruchelvam on my return to Sri Lanka in 2009. Her home was a vibrant space for lively discussion, good food, and warm company. Vangeesa Sumenasekara and the Sumenasekara family were extremely kind and welcoming to me at a very tense time in Sri Lanka. I thank them for sharing their home with me. Priya Thangarajah’s sharp mind always pushed me, and her tenacity made so much happen—we miss you. I admire and have learnt so much from the work of Ahilan Kadirgamar, Neloufer de Mel, T. Shanaathanan, and Jagath Weerasighe. Sharmini Pereira introduced me to art that continues to be a deep channel for reflecting political events while remaining stubbornly singular. Shyam Selvadurai’s novels have offered important insights about darker times, and I have always gained from our conversations. The Critical Legal Conference has generated the most open and stimulating academic setting where all the material discussed in this book has at some point been presented, discussed, challenged—and as a result—improved. I am grateful to all colleagues at the CLC. The Association for the Study of Law Culture and Humanities conference has also been an important and collegial setting for presenting my research. I am grateful to all who have contributed the energy and hard work that it takes to sustain these crucial settings for critical legal thinking and research in the humanities. Several visiting fellowships have facilitated my research. The Parsons Fellowship at Sydney Law School; being a Fellow of Stellenbosch Institute for Advanced Study; and being a Fellow and having the opportunity to teach at Melbourne Law School all offered important opportunities to meet and discuss with exceptional scholars. I am especially thankful to Fleur Johns, Karin van Marle, and Sundhya Pahuja, respectively, for helping to facilitate

these fellowships and visits, and for being such thoughtful interlocutors. At a crucial stage of writing I visited the Hong Kong University Law School and benefitted from the insights of Dan Matthews, Scott Veitch, and Marco Wan. Page xv →Over the years it has taken to write this book many colleagues and friends have been especially generous in their encouragement and in sharing ideas, books, and hospitality. Their research has inspired and enabled my own. For all this support and encouragement my thanks to Mark Antaki, Maria Aristodemou, Jennifer Balint, Helen Carr, Alex Colas, Jennifer Culbert, Marinos Diamantides, Francesca Dominello, Stacy Douglas, Costas Douzinas, BaЕџak ErtГјr, Samera Esmeir, Bernard Flynn, Peter Goodrich, Avery Gordon, Ari Hirvonen, Catherine Humble, Leila Kawar, Sarah Keenan, Sari Kouvo, Gilbert Leung, Hans Lindahl, Elena Loizidou, Fiona MacMillan, James Martel, Renisa Mawani, Shaun McVeigh, Henrietta Moore, George Pavlich, Colin Perrin, Austin Sarat, Jill Stauffer, David Styan, Chris Tomlins, Patricia Tuitt, Johan van der Walt, Philippe van Haute, Honni van Rijswijk, Scott Veitch, Illan Rua Wall, Judith Walz, and Irene Watson. My thanks to Danielle Coty, Scott Ham, Kevin Rennells, and the excellent copyeditor from the University of Michigan Press for all their help during the production and publication of the book. The content of some of the chapters has appeared earlier, and I am grateful to the editors and publishers of the following for their permission to reproduce this material. Parts of chapter 2 appeared in “Colonial Sovereignty, Forms of Life, and Liminal Beings in South Africa,” in Agamben and Colonialism, ed. Marcelo Svirsky and Simone Bignall (Edinburgh: Edinburgh University Press, 2012), 128–51; parts of chapter 3 appeared in “As If—Law, History, Ontology,” U.C. Irvine Law Review 5, no. 2 (2015): 327–48; parts of chapter 4 appeared as “Archiving Colonial Sovereignty: From Ubuntu to a Jurisprudence of Sacrifice,” SAPR/South African Public Law 24 (2009): 297–327; parts of chapter 4 appeared in “вЂBegging to Be Black’: Liminality and Critique in Post-Apartheid South Africa,” Theory, Culture & Society 27, nos. 7–8 (2010): 285–305; parts of chapter 4 also appeared as “Mistaken Judgments,” in Law’s Mistakes, edited by Austin Sarat, Lawrence Douglas, and Martha Umphrey (Amherst: University of Massachusetts Press, 2016). I am grateful to Anselm Kiefer, the Astrup Fearnley Museum of Modern Art, Oslo, and White Cube, London, for permission to use the photograph by Uwe Seyl of Kiefer’s sculpture, Mesopotamia—The High Priestess. My thanks also to T. Shanaathanan and Raking Leaves for permission to use images from The Incomplete Thombu. My thanks to Susan Reid who helped me to understand the difference between what needed to be recovered and what could be left behind. She also helped me to let this book go. Page xvi →My family and friends have sustained me throughout this project. Hilary, Linda, Jacob, Matthew, Wolly, Christina, Kriti, Katharine, Charlotte, Alison, Leighton, Lucy, Helene, Bruno, and Julie—thank you for all the support and laughter over the years. My parents gave me so much from the start and always believed that this would be done. Luise and I spent a wonderful summer in Porto where much of this book was written, but even more was realized. My thanks to her for staggering my tenses and senses, and making a more joyous life possible.

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Introduction Archiving Sovereignty THE LAW PRESERVES AND DISAVOWS the past at the same time. How the law goes about this “history work” is the subject of this book. Juridical events as wide-ranging as constitutions, legislation, or colonization may be regarded as a source of legal norms or principles that may be applied by judges and officials to present or future circumstances. Such juridical events have an “archival future” in that they can serve as a repository of legal doctrine or rules that may be applied on another occasion. While legal concepts, doctrine, and rules may apply across time in a relatively mundane way, they also harbor histories of violent usurpation, dispossession, and genocide. Law’s archival practices mediate these acts of sovereign violence. Law disavows violence in order to be free of an abhorrent past, and yet preserves it as such events are also the origin of present distributions of property, territory, and membership in community. Archiving Sovereignty examines how fiction—the As If—serves as a memorial device through which a purportedly disavowed past is dissimulated and distributed. Fictions may be deployed as “consciously false” precepts that are deemed “necessary” to sustain a legal order or the stability of a state. They may sustain destructive social and legal practices, or inspire progressive ethical and political formations. Such is the memorial and archival work of law. One of the ironies of the “end of history” discourse ushered in at the end of the Cold War is that a “memory boom” emerged alongside it.1 The assertion that history was at an end, and that capitalism and liberal democracy had triumphed over communism, was accompanied by a concern for what aspects of the past are to be remembered and how they will be represented. The political and juridical trope of the “archive” emerged in this setting. The archive superficially connotes collections of documents or Page 2 →items no longer in use. However, its scope as concept and metaphor is far richer. In this book “archive” is understood as both the origin and function of law. The archive represents what law does. Focusing on unresolved or persistent sovereign violence such as the establishment of colonies, or zones of exclusion from legal jurisdictions, Archiving Sovereignty examines legal decisions that determine what is included and excluded from the legal archive. This book thus concerns the history-work of law. The ambit of the concept of archive has grown in the past 30 years with numerous assertions of “end” times: the end of the Cold War and communism, the end of apartheid, the end of sovereignty, and, in colonized parts of the world, the hope for an end to imperialist pretentions and their civilizing missions. These temporal markers evince an archival urge and memorial surge in law and politics. Archiving suggests the possibility of the past being cast aside, or being filed away in an inexorable linear movement of time from past, to present, to future. This book refutes the assertion of such end-times.2 Law’s archival function also emerged alongside competing claims about the nature and continued relevance of sovereignty. On the one hand sovereignty was apparently waning in an increasingly interdependent world of global flows of capital and people and networks of resistance by social movements. Disrupting this linear account of history, resurgent nationalisms multiplied—inconveniently reaching for a nostalgic past to be recovered in sovereign terms with claims to national autonomy, independence from the global ravages of capital, and selfdetermination.3 Indigenous communities have also claimed the status of “nation,” or attempted to recover sovereignty in a number of contested imperial states and political formations. Sovereignty is thus central to staging political freedom, contesting disputed histories, and articulating unresolved traumatic pasts. Reflecting on these developments, Archiving Sovereignty is a phenomenological inquiry into how sovereignty appears and how it is sustained over time as a juridical construct. Sovereignty might be a quality possessed by a state, or a status aspired to by a people. It might also refer to freedom from constraint, self-determination, or autonomy. The form of sovereignty referred to in this book primarily concerns that asserted and deployed by states with imperial histories. The appropriation of space, jurisdictional differentiation of territory, distribution of bodies in space, and regimes of belonging to a place are all sovereign formations and distributions of violence

explored in each of the following chapters. This alone suggests that no single instance of sovereign power can fully capture the malleability and Page 3 →variability of the sovereign form. Part of our task, then, is to understand how law as archive sustains a phenomenon as variable as sovereignty. Sovereignty today is both out of time and the expression of democracy and self-determination.4 As constituent power, sovereignty is a vital force that constitutes law, the state, and political community. Sovereignty gives expression to constituent forces that may be radical and progressive, while at the same time closing down more expansive political possibilities. Placing constituent power and sovereignty in opposition, the political theorist Antonio Negri referred to the former as the “concept of a crisis.”5 The “crisis” stems from constituent forces, which carry democratic potential at the instance of their appearance, rapidly collapsing into forms of limited or constitutional government. This has been a common feature of uprisings, rebellions, revolutions, and diverse movements to overthrow colonial and imperial social and political formations. Constitutive forces that start with radical aspirations and horizons all too readily turn into constituted orders that preserve what was supposed to be overthrown. Rather than seeing law’s role as merely stilling and defusing these constitutive forces, my inquiry reveals a more complex dynamic of repetition and disavowal of unresolved violence associated with the origins of law. My argument, distinct from that of Negri’s, is that a constituted sovereign order remains inchoate—haunted by the eternal return of the unsettled origin. Negri presents a dialectical struggle between constituent power and sovereignty as a “crisis” awaiting a resolution. To my mind the term “crisis” has been overused and overdeployed. While often invoked to describe a new set of conditions or a pressing event, the crisis Negri describes is in fact a phenomenon that persists over a significant period of time. “Crisis” has an archival future. In Negri’s dialectical formulation of democratic force and desire, the mischief in liberal thought is that power as potere or potentia is transformed into the moribund form of potestas or a constituted order. In contrast, the instances examined in this book suggest that it is the recurrent attention demanded by a past sovereign assertion (its archival future)—rather than a “new” event or crisis—that is at the heart of the problem of sovereignty.6 What is worth holding on to in Negri’s analysis is the sense that sovereignty presents a phenomenological problem of its appearance, as well as the pressing questions about the material conditions of its (re)production. What we will consider more specifically is how sovereignty appears as a problem of unresolved violence, and how that irresolution is sustained by law. Sustaining the irresolution of sovereign violence over time is what I am characterizing as law’s archival function. Page 4 →Another symptom of the persistence and vulnerability of sovereignty has been the return of archaic forms of violence. There is the persistence of absolutist assertions of sovereignty, and an insistence that sovereign power be unchecked by law. In the name of sovereignty and security, states detain their “enemies” without trial, retreat from international prohibitions of torture, and construct elaborate border-protection measures to deter and punish foreigners who seek entry. In addition to that, there is the “ghostly” presence of unresolved violence.7 The original violence that constitutes a legal order by destroying, excluding, or displacing existing social formations never secures a convincing alibi. The regimes and mechanisms of exclusion remain in place to control and govern communities, while elaborate legal schemes manage the movement of people across borders. As Wendy Brown has so aptly pointed out, at the beginning and end of sovereign claims is an “enclosure.”8 The “fence” that distinguished mine from thine in Jean-Jacques Rousseau’s account of the origins of civil society, or the enclosure of the sacred from the ordinary to found divine orders, are also to be found when sovereignty is dissipating or transforming in the face of perceived threats to national borders.9 The phenomenon of sovereignty scrutinized in this book takes form through instances of unresolved violence that eternally return to be addressed, or are reenacted to sustain their inchoate claims. Archiving Sovereignty does not contend that the end of sovereignty is nigh. This book instead shows how, when weakened and exposed, sovereign power relies on law to shore up the artifice that is its edifice. To put it another way, sovereign excesses expose the fictions (the artifice) that are at once its mode of appearance and its vulnerability. This is no more evident than when law is called on to contend with histories of violence that are no longer affirmed, but whose legacies reach into the present and the future.

Law addresses unresolved sovereign violence by seeking to delimit the past. This history-work is at the heart of constitutional transformation, or instances of judicial recognition of colonial violence and dispossession. These are some of the forms of judicial delimitation of sovereign violence considered in the chapters that follow. The legal and political approach to the past is intimately connected to imagining a transformed future. How law or quasi-judicial mechanisms archive the past and inaugurate a future has already been the subject of important critical analysis. For instance, Robert Meister’s After Evil: A Politics of Human Rights challenges the contemporary concern with doing justice to the past.10 He regards human rights and transitional justice discourse as a retrograde abandonment of more radical political demands. Meister takes aim at the way in Page 5 →which the past has been washed clean by truth commissions, such as in South Africa. Lamenting the move to turn “beneficiaries” of past acts of violence and dispossession into blameless “rescuers,” he decries the loss of a more radical revolutionary horizon. The dates 1789 and 1989 are for Meister the key temporal markers of a lost revolutionary trajectory (7). According to this view the counterrevolution begins after 1989 when the grand utopian projects start to be portrayed as “evil”—namely, the 20th-century horrors of Nazism and communism (7). For Meister, the manner in which transitional justice mechanisms sought to give “closure” to the past has instead resulted in foreclosing the future (7). As Meister has pointed out, it is not only the past but also lost futures that are lamented. In contrast to Meister’s lament for lost political futures, I am proposing that we give more attention to archival futures and how they are imagined and constructed. David Scott has identified the future as a lost horizon that conditions our view of the past: “it is precisely when the future has ceased to be a source of longing and anticipation that the past has become such a densely animated object of enchantment.”11 Scott’s characterization of the nostalgia for futures-past follows from his important work distinguishing anticolonial longing from postcolonial becoming.12 Anticolonial longing refers to the persistence of the aspiration for national sovereignty as the decolonized horizon. A model of law and politics imposed by an imperial imagination then stands in for a decolonizing aspiration. Archiving Sovereignty seeks to understand the challenges of addressing sovereign violence without falling back on failed strategies of ethnonational liberation as the desired future. The relationship between past, present, and future is an overriding concern of Archiving Sovereignty. However, rather than lament foreclosed futures, as Meister does, I seek to understand how the law sustains a heterogeneous time of sovereign violence. Instead of an account of the past as foreclosing a nostalgic sense of a lost future, the discussion reveals a past that stubbornly resists a dialectical overcoming by present and future formations. The past is inscribed and reiterated in legal decisions. Law’s judgment of the past is a performative act of inauguration and re-inscription. Law begins, again and again, by producing the archive of the present. More specifically, I demonstrate how the as if or the consciously false is central to law’s function as an archive of sovereign violence. This legal archive, as we will shortly see, serves as both authority and alibi for sovereign power. Archiving Sovereignty’s approach to history, law, and time builds on the Page 6 →work of Meister, Scott, and others. To be sure, Meister does draw important attention to the problems of justice delayed. He also usefully articulates political time through the notion of the “as if”—a concept that I explain and amplify in the analysis that follows. For Meister the inherent flaw in what he calls “Human Rights Discourse,” a phenomenon that connotes the juridicalization of politics and the foreclosure of more radical political horizons, is that it urges people to live in a time between times. Human Rights Discourse inaugurates a time when “evil” has ended but justice is yet to come. As Meister puts it, “the question is whether it will always be too soon for justice until it is too late” (10). This “time between” is an idea associated with the Christianity of Saint Paul who urged his followers to have faith that everything that is necessary for justice has happened (the Resurrection of Christ, and the forgiveness of sins), but that the moment of Judgment is yet to come. Dominant Human Rights Discourse pushes these Pauline terms of salvation whereby we are driven to live “as not”: to live neither in the evils of the past nor in a fully emancipated future. Human rights and transitional justice discourse is then understood as promoting this “suspended” time in-between. Characteristically for the future, it is ever postponed or always “not yet.” We thus live “as not”—not with the sins of the past, and not with the possibility of a fully emancipated future. Two forms of

the “as if” are harbored in the time of living “as not”: we must not live “as if” sin is irremediable, nor should we live “as if” the messianic moment has come. For Meister, the “as if” as faith and fiction risks rendering justice too late (11). When law functions as the archive of the past, it risks doing precisely what Meister complains of. Mass violence, displacement of populations, and dispossession of lands and territories are regularly neutralized in law’s attempt to respond through regimes of juridical recognition. In Australia the claims made by the indigenous Stolen Generation have been defeated on the basis that it was “lawful” in previous times for the state to remove children from families (a process discussed in chapter 3). The “valid” evidentiary archive is constricted in order that the state may avoid accountability.13 Law facilitates this destruction of the archive, thereby sustaining the artifice of sovereignty. Through its history-work law produces a narrative of “in the beginningВ .В .В .” But as Irene Watson has pointed out in relation to the Australian colonial context, this is only possible by rendering existing indigenous laws “pre-historic, invisible, un-evolved in time.”14 Despite the steady accumulation of evidence of the harm done by colonial violence, and retrospective apologies by the state, acknowledgment of forms of indigenous sovereignty has been refused. Page 7 →Throughout this book we encounter legal fictions that seek to sustain political facts. However, the fiction or artifice of sovereignty sustained by law is only part of the story. One abiding concern of this book is the undecidability between law’s fictions (the “as if” of law) and the concrete, material manifestations of sovereignty (the political fact “as such”). Colonies are discovered, conquered, or settled at a time past, and later transformed through regimes of rights and recognition. A sovereign assertion of colonial possession or constitutional transformation—to take exemplary “bookends” of violence—is presented as a certain fact of the past. The sovereign event is regarded as a fact. But this “fact” or constative solidity of colonial power has a strong fictional quality that renders its facticity unstable. This instability of the fact of sovereignty is a weakness and an opportunity. We will see that the regimes of violence and their legal alibis are vulnerable in the face of the undecidability between what is asserted “as such” and the extent to which the “fact” is an “as if.” The same instability of origin also plagues legal systems in the throes of transformation or decolonization. If the artifice of colonial plenitude is fragile and in need of legal scaffolding, so are the measures that claim to depart from the worst excesses of this sovereignty. Does a decolonizing process assail a fact or a fiction? The historiographical problem involves determining whether the past being departed from is a projection of the present, and whether the act of transformation only serves to relaunch the same question for the future. Law’s function as archive of sovereignty harbors the tension of metaphor contained in the “as.” Between the “as if” and “as such” it is not clear whether the violent origin and departure from it is a restatement of the past in order that it can be departed from, or a reinstatement of what is purportedly disavowed.

Law as Archive Archiving Sovereignty builds on Jacques Derrida’s Archive Fever: A Freudian Impression.15 At the heart of Derrida’s examination of the archive was a concern with understanding the compulsion to excavate the past. Derrida associated this feverish desire with Sigmund Freud’s notion of the death drive. As Carolyn Steedman has put it in her important reading of Mal d’archive, the desire to go back, to repeat, is a compulsion toward death.16 Seeking the origin, going back, repetition, is part of a psychoanalytic process that seeks the prelinguistic and pre-representational associations of an event or object of desire to some element of the past. However, Steedman places a distinct emphasis on Mal d’archive by pointing to another magistrate:Page 8 → history. Building on the work of Benedict Anderson, Steedman shows how the “ressurectionist historian” presumes to exhume the dead.17 “National” historians like France’s Jules Michelet practiced a form of historywriting that “creates the past that he purports to restore.”18 The archive, as its etymological root in the word archД“ suggests, is at once the site of commencement and command.19 As a repository of origins it is physical, historical, memorial, and ontological. From its relation to arkheion, the residence of the archons, the ancient Greek magistrates, the archive was also where official

documents were filed and stored. The archons had the power to make, represent, and interpret the law. The archive continues to connote a delimited space where the law is gathered, guarded, and spoken. The “archive” might then be regarded as an analogy for law. The archive as an analogy of law places the “as” (the “as such” and “as if”) and other literary and aesthetic tropes at the heart of thinking about modern law. We will later consider how law’s archive of sovereign events is an “act of literature.” Law is an archive in the sense of the double logic of violence that Renisa Mawani has attributed to law’s character as archive: it is both grammatological and epistemological, as well as ontological and material.20 The technique of stating the law at once recalls, affirms, and disavows violence. As a form of enunciation, as the site for declaring the sovereign event, law is a medium of violence. As Robert Cover famously put it, “Legal interpretation takes place in a field of pain and death.В .В .В . Legal interpretative acts signal and occasion the imposition of violence upon others.”21 It is not only that a judge’s interpretation of a text can result in the removal of someone’s freedom, property, or ultimately their life. The interpretation of law can create and destroy worlds. While this is certainly true of the imposition of a criminal sanction, or sentence of death, we are concerned here with how the law functions as a storehouse of the violence that constitutes and sustains the state. Law as a craft of judging by re-citing precedent and narrating origins relies on an archival mode of drawing on the past to authorize decisions in the present. Common-law judges are conscious of the impact of their decisions on the future. Law as future-anterior, to use Derrida’s phrase, involves the transmission of present decisions into future-time. In the judicial doctrine of stare decisis the present decision potentially conditions the future in advance. Authority is affirmed with reference to past decisions and judgments, or new lexicons of right are created by discarding or distinguishing superseded precedents. Law also harbors sovereign force and violence as law’s command and commencement. Sovereignty as “limit concept” or Page 9 →space of jurisdiction relies on law’s capacity to preserve and confine as well as to condition and extend the event and space of sovereign violence. A number of writers have already sought to extend the scope of law’s archive. Ann Laura Stoler, drawing inspiration from the structural anthropology of Claude LГ©vi-Strauss, pushed the notion of the archive beyond a collection of documents no longer in use.22 She drew on an enthnological approach to see what is not written. This is not necessarily a search for a hidden message, but instead distinguishes between “what was “unwritten” because it could go without saying and “everyone knew it,” what was unwritten because it could not yet be articulated, and what was unwritten because it could not be said.”23 In a similar vein Archiving Sovereignty probes law for what is not explicitly said about sovereign power. The law relies on and mediates sovereign violence. While this is sometimes unwritten, I explore how legal fictions reveal law’s complicity in sustaining violence. Archiving Sovereignty disrupts the historicist approach to the past that seeks to understand events by revealing their context and contingency alone. Verne Harris draws an analogy between an infinitely open sense of justice and the archive. His emphasis is on resisting enclosure, contextualization, and totalization.24 The archive is commonly relied on to provide “contextualization” of the past. But like justice, the context cannot be enclosed and delimited. Rather than a presumed facticity of the past, we will examine the fictions at the heart of law’s archival of sovereign events.

As If In a tradition as old as Immanuel Kant’s Critique of Pure Reason the “as if” (the consciously false, illusory knowledge, or legal fiction) has been a motif deployed in critical engagements with law. The lawless origin of law was Kant’s main political concern, and so he urged members of a civil state to proceed “as if” the law was legitimately grounded on reason. The most influential legal theorist to adopt and elaborate this approach was Hans Kelsen who proposed the Grundnorm (basic norm) by way of a regressive attribution of the legal order to a higher norm. The Grundnorm is an instance of the “as if.” Kelsen was following in the wake of neo-Kantians of the 19th century such as Hans Vaihinger who brought the “as if” to bear on

religion, physics, linguistics, and mathematics.25 In the 20th century, literary theorists like Frank Kermode and philosophers like Jacques Derrida and Jean-Luc Nancy have all deployed the “as if” in their critical engagements with a variety of concerns including literary texts, sovereign events, and the future of the humanities and the university. Page 10 →For our purposes let’s begin to consider the centrality of the “as if” with a legal exemplar: the fiction that animates the South African constitutional order. Like other political movements and constitutional orders, an “as if” underpinned the antiapartheid struggle and provides the founding myth of postapartheid law and politics. This fiction is the notion first articulated in the ANC’s Freedom Charter of 1955 that “South Africa belongs to all who live in it.”26 This performative declaration of commonality, equality, home, property, territory, and belonging informs the regime of postapartheid constitutional rights. The words from the ANC Freedom Charter are repeated in the Preamble of the South African Constitution of 1996: We, the people of South Africa, Recognise the injustices of our past; Honour those who suffered for justice and freedom in our land; Respect those who have worked to build and develop our country; and Believe that South Africa belongs to all who live in it, united in our diversity. We therefore, through our freely elected representatives, adopt this Constitution as the supreme law of the RepublicВ .В .В . (emphasis added)27 This Constitution performed an inauguration of the future by setting the constituent event in relation to the past. The primary assertion was of a commonality—“South Africa belongs to all who live in it”—that can only proceed by way of a fiction. Much continues to ride on the veracity of this fiction when ongoing struggles to decolonize South Africa raise questions of who belongs where and on what terms. Do the descendants of colonial settlers “belong” in an erstwhile imperial territory?—a question that is relevant to South Africans as it is to the descendants of any other colonial state. The reactionary turn to reracialize politics in South Africa is possible precisely because of the fictive character of belonging-together in the Constitution and in wider social and political relations. The problem of belonging oriented through performative legal fictions is a current manifestation of an older question of political philosophy usefully articulated by Claude Lefort: What is the nature of the political as a form of human coexistence when the power that legitimizes it becomes empty or dis-identified from a particular person, prince, or God?28 As Lefort put it: The difficulty of analysing modern democracy arises because it reveals a movement which tends to actualize the image of the people, the state and Page 11 →the nation, and because that movement is necessarily thwarted by the reference to power as an empty place and by the experience of social division. The movement of which we are speaking must be described with greater precision: when society can no longer be represented as a body and is no longer embodied in the figure of the prince, it is true that people, state and nation acquire a new force and become the major poles by which social identity and social communality can be signified. But to assert, in order to extol it, that a new religious belief takes shape is to forget that this identity and this community remain indefinable. Conversely, to find in this belief a sign of pure illusion, as liberal thought encourages us to do, is to deny the very notion of society, to erase both the question of sovereignty and that of the meaning of the institution, which are always bound up with the ultimate question of the legitimacy of that which exists.29

When power attempts to reconnect with some determinate “real” or ultimate foundation for commonality the result, according to Lefort, is totalitarianism.30 This warning would not be out of place in the old or “new” South Africa—or indeed in many other polities that are struggling to find an index for social unity and identity. When a people, nation, or state face the empty place of power—that is, the impossibility of radical immanence or the attainment of a people-as-one—they reach for the fantasy that society can be a unified “body.”31 The totalitarian formations of both communism and fascism in the 20th century, despite their important differences, shared the illusion of producing a unified body by sanctifying the proletariat or race, respectively.32 The sanctification of illusions marks the persistence of the religious in the theologico-political formations of modernity. The manifestation of this in identitarian politics of belonging takes the form of the sanctification of a race or people proper to a place. The illusion concerns the restoration of social unity. It comes from a desire to fill the void that is the empty place of power. Taking up the fictive element of this problem of the political first, archiving the past must thus be more attuned to the constitution as illusion, or what I will now cast as an act of literature in a juridical order.33 The question this formulation of law as literature raises is the one posed by Derrida in relation to Franz Kafka’s short story “Before the Law”: Who judges, and by what criteria, that a particular narrative, myth, fiction, story, or “relation” belongs to literature?34 The homologous question follows in law—who decides, and by what criteria, that a particular act or narrative constitutes law? In reciting the constitutional narrative, in re-citing the law, law is as much a work of literature as literature is a problem of law. Page 12 →A constitution is like and unlike other acts or legislation. Derrida draws our attention to the multiple senses of the term “Act.” It is at once performance, legislative decree, mimetic action, a simulation and counterfeit, and the work of substituting as proxy on behalf of another, to stand in, to act as and for another.35 The Constitution is also believed to be the Law above all laws. The question that always follows from this characterization is with what authority and in whose name is a constitution or constituted order created. This is often referred to as the paradox of constitutionalism.36 Would the “people” who authorize the signature of the person who signs on their behalf not already have to exist, and would such a “people” not already have to be united by a legal order, for no other form can express the unity of diverse constituent parts (Kelsen contra Carl Schmitt)? The declarative act is thus a performative contradiction. Additionally, the foundation, the act of constituting, is lawless. “We the people” proceed “as if” we already exist as such and could authorize our representatives to act on our behalf. The constituent assembly or force is only retroactively a constituent power of a constituted order. “We” proceed “as if”—that is, with the consciously false and the fictive at the heart of a constitutional order. The first Act, then, was an “act of literature.” There is a long history to this account of the constituent event harboring the “as if.” Derrida takes the problem back to Kant. Having reflected on whether Kant’s account of practical reason harbors elements of the fantastic or of narrative fiction, Derrida asks, “what if the law, without itself being transfixed by literature, shared the conditions of its possibility with the literary object”?37 Derrida was referring to the formulation of Kant’s second categorical imperative. In his Groundwork for the Metaphysics of Morals, Kant expressed the centrality of the “as if”: Because the universality of the law in accordance with which effects happen constitutes that which is really called nature in the most general sense (in accordance with its form), i.e. the existence of things insofar as it is determined in accordance with universal laws, thus the universal imperative of duty can also be stated as follows: So act as if the maxim of your action were to become through your will a universal law of nature.38 The “as if” enables Kant to reconcile “practical reason with an historical teleology and with the possibility of unlimited progress.”39 The “as if” introduces narrative and fiction to the “core of legal thought.”40 The narrative and the law appear together: “The story, as a certain type of relation, is linked to the law that it relates, appearing, in so doing, before that law, Page 13 →which appears before it.”41 But nothing is presented in this appearance—we cannot experience the appearance of the law as such, we have no

“proof or experience of it.”42 There is no history, genesis, or derivation of categorical authority. What is concealed and invisible in law is the “being-law” of law.43 A narrative or fiction of the law takes the place of an uncertain origin that must be placed beyond scrutiny. Kant thus places the authority of the civil state beyond critique: The origin of the supreme power, for all practical purposes, is not discoverable by the people who are subject to it. In other words the subject ought not to indulge in speculations about its origins with a view to acting upon them, as if its right to be obeyed were open to doubt (ius controversum). For since the people must already be considered as united under a legislative will before they can pass rightful judgement upon the highest power within the state (summon imperium), they cannot and may not pass any judgement other than that which is willed by the current head of state (summus imperans). Whether in fact an actual contract originally preceded their submission to the state’s authority (pactum subiectionis civilis), whether the power came first and the law only appeared after it, or whether they ought to have followed this order—these are completely futile arguments for a people which is already subject to civil law, and they constitute a menace to the state.44 (original emphasis) At first glance this seems like the avoidance of contradiction—the people would already have to be united by a law that they then call into question. However, it is difficult to square this with the demand that everything must submit to critique. As Panu Minkkinen has put it, “Critique is the sovereign philosopher-lawgiver’s negative legislation in which he defines the legitimate boundaries of his self-knowledge.”45 It turns out that critique is also submission. This of course leads to a contradiction as the philosopher lawgiver has to recognize the majestic sovereignty that constitutes the limits of their own reason—a contradiction whose productivity is civil peace.46 As we know, peace was not to be the legacy of this thought. The most ambitious elaboration of the significance of the Kantian “as if” was undertaken by the German philosopher Hans Vaihinger.47 First published in German in 1911, Vaihinger had been working on the manuscript of The Philosophy of “As If” since the 1870s when he was among the leading readers of Kant in the 19th century, but also a philosopher who was confronting religious and ethical inquiries in the wake of Charles Darwin and Friedrich Nietzsche. As Vaihinger himself put it, his magnum opus Page 14 →was an attempt to write the complete theory, anatomy, physiology, or biology of “As If.” All of the implications of this work are beyond our scope here. Suffice it to say that for Vaihinger the “as if” or “appearance,” the “consciously false,” played an enormous part in science, mathematics, law, and indeed in life.48 He drew on his contemporaries, including Nietzsche, to elaborate the centrality of invention, creation, falsification, allusion, and “myth”—and by no means in religion alone. Hans Kelsen drew on the “as if” to distinguish between “basic norms” and “positive norms.” The former is “basic” because “nothing further can be asked about the reason for its validity.”49 A positive norm on the other hand is posited by “a real act of will.” A basic norm is a norm presupposed in thinking—and in that sense it is a fictitious norm.50 The basic norm or Grundnorm is fictitious and not a real act of will. Such a presupposed fiction, when used to authorize a moral (religious) or legal order (constitution), is not only a contradiction of reality (since there is no norm that is an actual act of will), it is also self-contradictory in that it does not emanate from an authority other than a fiction.51 In order to sustain this attribution of norms to a fictitious basic norm, Kelsen draws on Vaihinger: According to Vaihinger, a fiction is a cognitive device used when one is unable to attain one’s cognitive goal with the material at hand. (Vaihinger 1924:13) The cognitive goal of the Basic Norm is to ground the validity of the norms forming a positive moral or legal order, that is, to interpret the subjective meaning of the norm-positing acts as their objective meaning (i.e. as valid norms) and to interpret the relevant acts as norm-positing acts. This goal can be attained only by way of a fiction.52 Kelsen, along with Vaihinger, distinguished a fiction from a hypothesis. A fiction, on Kelsen’s account, was

accompanied “by the awareness that reality does not agree with it.”53 In the General Theory of Law and the State Kelsen speaks of the basic norm as a “consciously formulated” assumption.54 Kelsen’s abiding concern to distinguish positive law from natural law was achieved by accepting the assumption that positive law does not produce “a material and absolute justification of the legal order.”55 Reliance on the “hypothetical validity” of positive law was thus essential for maintaining the separation between a science of law (positivism) and a metaphysical approach (natural law).56 According to Kelsen, theories of group psychology are also incapable of filling the void of the legal foundation. This was precisely why the consciously false or “as if” was so central to legal thought. In a fascinating Page 15 →engagement with this problem in Vienna in the early 1920s, Kelsen responded critically to Freud’s theories of group psychology. Freud had attempted to give an account of the group through libidinal feelings of the individual in relation to the leader or superego in his 1921 work “Group Psychology and the Analysis of the Ego.”57 Kelsen is scathing about such psychosocial attempts to give an account of mutuality in society through psychological accounts of social bonds.58 The conceptual error, as Kelsen saw it, was to take the double affective tie that an individual has to an other, and to a leader, and to impute a group consciousness from this individual’s psychic state.59 Social unity is then, in Kelsen’s view, a hypostatized personification. In contrast, Kelsen insisted that the state and the law are one: “The state as a code of human conduct is precisely identical with the compelling code which is understood as the law or legal code.”60 To the extent that the state is often attributed an “active personality,” it is a “simplifying personification of the legal code which constitutes the social community, which forms the unity of a multiplicity of human conducts.”61 Hypostatizing this personality is a “typical error” exposed by Vaihinger’s philosophy of the “as if.”62 The conscious fiction, on Kelsen’s account, makes the law self-sufficient. However, as Г‰tienne Balibar points out, Freud’s question to Kelsen and himself is “what it means to obey coercion,” or, to put it another way, “to renounce any revolt against it”?63 The “as if” presents a “fiction of the absolute,” and we are then faced with the social and psychic costs of this groundlessness.64 As Balibar puts it: The juridical order envisaged from a psychoanalytical perspective is, strictly speaking, “groundless,” and that one can no longer really act “as if” it had a ground, unless one were to believe in a fiction or to “realize” this fiction, which is indeed a form of myth or of illusion.65 The relationship between the juridico-political order and a psychic “other scene” is beyond the scope of my current study. However, the implication of a law that is grounded on fictions is one that we will consider further. How does the law deploy fictions? How do we distinguish between the conscious fictions of law and dangerous myths? The answers to these questions are central to addressing the political responsibilities that come with “making sense” of invention, illusion, or fiction.66 For Nancy our current predicament stems from inhabiting a space between myth and nihilism. Ethics, responsibility, value—that is the problem of “sense” that we now face without the authority and certainties of myth, tradition, and religion. How do we make sense, and can fiction be a source of sense? Page 16 →

As If as Sense As we have seen, there is already a deep and elaborate discourse on the fictions at the heart of law. These fictions relate to the foundation of a system of legal norms, and extend to the problem of bringing a case within the law, or of establishing jurisdiction. The juridical order arises from a fiction, a “bare-faced lie,” as Nancy put it in his essay “Lapsus Judicii.”67 But to what extent can the “as if” be a source of political, juridical, and ethical orientation? What potential does the “as if” have and retain as a source of “sense”? By “sense,” Nancy means value.68 The current crisis of “sense” lies in the fact that “sense” now inhabits the “border” between two expended poles from which authority was derived—“absolute

value” (myth) and “relative value” (the absolute absence of value—nihilism).69 In modernity the theological as an absolute source of value is replaced, as we observed through Lefort above, with the theologicopolitical, another absolute source of sense. The theologico-political is a “laicized theology” symbolized through notions such as people, history, humanity, and nation.70 Value or authority in the theologico-political is derived from a category that transcends the singular-plural exposure of beings—such as the “subject of history,” membership through belonging to a people, nation, humanity, and so on. Nation, property, people, production become the “absolute sense” of a subject whose history becomes politics.71 Kermode addresses the question of whether the “as if” can be a source of ethics and politics by combining Nietzsche, Vaihinger, and Wallace Stevens’s insights on how fiction helps us to make sense of the world: After Nietzsche it was possible to say, as Stevens did, that “the final belief must be in fiction.” This poet, to whom the whole question was of perpetual interest, saw that to think in this way was to postpone the End—when the fiction might be said to coincide with reality—forever; to make of it a fiction, an imaginary moment when “at last” the world of fact and the mundo of fiction shall be one. Such a fiction—the last section of Notes Toward a Supreme Fiction is, appropriately, the place where Stevens gives it his fullest attention [В .В .В .В ] Mundo is itself such a fiction.72 But then there is the problem that if literary fictions are the same as all others, what is to be done with their “dangerous relations”?73 For Nietzsche “the falseness of an opinion is not any objection to it” and all that matters is “how far the opinion is life-furthering, life-preserving, and species-preserving.”74Page 17 → What happens when this opinion is about furthering the “German race,” the “American people,” or any other of God’s chosen ones? Kermode puts the conundrum well when he says that nature can always be made to comply with our fictions, which can be tested by their success in the world: “The validity of one’s opinion of the Jews can be proved by killing six million Jews.”75 For Kermode this problem expresses the modern condition identified by Hannah Arendt—that man, “wherever he goes, encounters only himself.”76 How are we to make sense, then, of the humanly ordered and created picture of the world? The dialectical image, which I will elaborate shortly, may give sight of the archaic sovereign—but that image alone will not save us from what we see. There is tragedy and apocalypse in both King Lear and Buchenwald—both are horrible, both involve “rootless fantasies” that are no more true or false than the other, except that the former does less harm than the latter. As Kermode puts it: The consciously false apocalypse of the Third Reich and the consciously false apocalypse of King Lear imply equally a recognition that it is ourselves we are encountering whenever we invent fictions. There may even be a real relation between certain kinds of effectiveness in literature and totalitarianism in politics. But although the fictions are alike ways of finding out about the human world, anti-Semitism is a fiction of escape which tells you nothing about death but projects it onto others; whereas King Lear is the fiction that inescapably involves an encounter with oneself, and the image of one’s end.77 There is thus a distinction between fictions that help us to encounter ourselves, our being, our birth and death—and those that project death onto others. Here Kermode draws a second and crucial distinction between “fictions” that change as sense-making changes and “degenerate myths” that are ritualistic and unchangeable.78 Myths are absolute, fictions call for conditional assent. We never think that King Lear, or any other work of fiction, is “true.” Kermode thus endorses Vaihinger’s suggestion of the importance of fictions. The “as if” can sustain ethical and political demands for “sense” provided they are retained with the sense that they are “consciously false.”79 We have established the significant role that fictions play in juridical, political, and ethical life. To what extent does the “as if” have an archival or counter-archival function? No (violent) origin can be utterly departed from. To be legal is to be memorial. In every legal decision discussed in the Page 18 →chapters that follow, or indeed whenever the force of law is invoked, law’s authority and authorization is potentially exposed. A tacit

acceptance or explicit account then has to be given of the force, sovereign violence, or power that constitutes the juridical order in the first place.80 Law’s authority is thus constituted by fictions narrated and reiterated over time. These narratives establish “truths” that are partial and contested. They are not always conscious, but rather convenient fictions that will suffice for the time being. Through law’s demand that the constitutive story be retold again and again, the violent origin of sovereignty eternally returns to haunt the juridical order. Imagining, inscribing, and memorializing the “as if”—that is law’s primary mode of archiving sovereign violence. This is a process of addressing the past that we will examine in each example of law’s attempt to grapple with sovereign violence in the chapters that follow. In the course of these studies we will encounter the role of the judge as fabulist. The instances of sovereign violence discussed in this book are drawn from the Indian Ocean region. The Indian Ocean is a heavily traversed space of people moving between archipelagos, islands, and continents. It is a zone of inexorable contact between people, and a site of sovereign violence, cruelty, and indifference to human life. It manifests the harsh remnants of archaic imperial sovereignty. As we will see, the Indian Ocean is variously a realm of freedom, a highly securitized zone where islands are emptied of their people (Chagos Islands), or excised from the reach of courts (Australian islands removed from the jurisdiction of courts). Postcolonial peoples gathered across this ocean’s continents struggle to find a narrative of home and belonging. In assembling the archive of sovereign violence in this book, I have drawn on the methodological insights, especially of the dialectical image, that Walter Benjamin offered in his own disjointed archive and diffuse remains: The Arcades Project.81 Benjamin developed the notion of the dialectical image in a segment of The Arcades Project devoted to methodology that is titled “On the Theory of Knowledge, Theory of Progress.”82 As Benjamin put it in the opening lines of that segment, “In the fields with which we are concerned, knowledge comes only in lighting flashes. The text is the long roll of thunder that follows” (457). Benjamin’s concern was to propose a “cultural-historical dialectic” whereby the positive and negative sides of a dialectic would not simply result in the negated part (obsolete or retrograde) forming the backdrop for the “positive” part (productive or forward looking). His abiding concern was with how the past held the present in its grip, like his famed reflection on Angelus Novus, the Angel Page 19 →of History in Paul Klee’s painting that was his treasured possession. The Angel of History flies backwards with wings caught in winds called progress while the debris of past disasters grows skyward.83 What Benjamin sought was an angle of historical vision whereby a “positive element emerges anew” in the negated past as well. The objective was to bring the “entire past” into the present (459). The method he chose for this was “literary montage” (460). As he put it, “I needn’t say anything. Merely show.” This was the way to produce a thought of historical materialism that would annihilate any notion of progress. What concerned him was not progress but “actualization.” Theodor Adorno commented on how Benjamin’s approach enabled a principle of montage to be carried into history (461). Archiving Sovereignty attempts such a montage—albeit one where the contexts discussed share the commonality of the Indian Ocean. The legal texts and issues discussed in the book are drawn from lands and territories that are situated in or contiguous with the Indian Ocean: the Chagos Archipelago, Australia, and South Africa. In assembling this montage of law, history, and violence I have been attentive to the figures, forms, and strategies of sovereign power that persist over time. Take the persistence of Robinson Crusoe and His Man Friday in the Chagos litigation examined in chapter 1. Despite the disavowal of earlier colonial expressions of racial imaginaries deployed to dispossess the Chagossian population, the figure of Crusoe and Friday return in the most recent judicial decisions that consciously, at least, seek to distance British law from the original racialized fiction by which the Chagossians were dispossessed. The same is true for the erstwhile doctrines of colonial times that are disavowed by present-day courts in Australia and elsewhere. The archaic fictions return as if the past is still present. The material discussed in each chapter is especially focused on the judicial imaginary and their legal fictions. I point to the persistence of the As If or the consciously false in the law’s archival of sovereign violence. For Benjamin the key to a dialectical image was to grasp the interrelation between dialectic, myth, and image. In progressive teleological notions of history, myth or the past would be understood as “long gone.” What the

dialectical image helps us to do is “bring dialectic and myth to the point of indifferentiation.” This enables us to grasp the archaic, antediluvian, or primordial. For Benjamin, It’s not that what is past casts its light on what is present, or what is present its light on what is past; rather, image is that wherein what has been comes together in a flash with the now to form a constellation. In other words, image is dialectics at a standstill. For while the relation of the present to the Page 20 →past is a purely temporal, continuous one, the relation of what-has-been to the now is dialectical: is not progression but image, suddenly emergent. Only dialectical images are genuine images (that is, not archaic); and the place where one encounters them is in language. (462) Archiving Sovereignty seeks to extend these insights to the narratives and fictions in law’s account of sovereign violence. The language and rhetoric of judges are replete with the metaphors, allegories, and fictions that sustain an archaic form of sovereign power. Like Benjamin I contend that this is not archaic in the sense of “what-has-been,” but an archaism that is present in the here and now. The site and expression of that archaism is to be found when law has recourse to the “as if” in order to sustain the reliance that current social and juridical formations have on erstwhile sovereign violence. Fictions of the past are reiterated today as “facts.” These fictions are repeated again and again in the hope that they will ring true this time. In the chapters that follow we examine attempts by courts to retrospectively grapple with the legacy of sovereign violence; the exile, banishment, and destruction of populations; and the conditions of belonging in a colonized space. The fictions deployed in these processes are impossible to shake off. Authority needs a story—an act of literature. Violence has a grip on the future, an archival future that needs to be reimagined and reinscribed. The narratives of origin are marked, re-marked, or sometimes (paradoxically) inscribed for the first time in the process of being “recounted.” How does the law recognize and disavow sovereign violence, and yet preserve forms of sovereignty founded on that violence? This is the central problem taken up in Archiving Sovereignty, and it addresses a set of challenges faced by many states and societies in the world today. The key insight to be drawn from this book is that law sustains the violence of sovereign events over time and thereby produces their archival futures. The problem of dividing and distinguishing sovereignty from one time to another has no end. The archaic forms and assertions of sovereignty persist in the present. What I have attempted to create in this book is an approach to understanding sovereignty that appreciates the conditions of these archival futures. I have also sought to undermine the plausibility of claims to sovereign plenitude, solitude, or selfsufficiency. Sovereignty cannot be a discrete phenomenon in time and space. The studies in each chapter have been gathered by way of a spatial and temporal traversal of the Indian Ocean region and its contiguous zones. The juxtaposition of events in time and space reveal how sovereign violence can never be dealt with once and for all. Its eternal return is sustainedPage 21 → by law’s fictions. Law’s recourse to fictions in relation to the Chagos Archipelago; the body as sign of exclusion in Australia’s detention of refugees; law’s refusal to acknowledge its own history-work in cases concerning genocide; and the impossibility of recovering a past perfect form of belonging in South Africa—all are exemplars of law’s role in securing an archival future.

Page 22 → Page 23 →

1. Solitude “NON, JE NE REGRETTE RIEN”! I have no regrets. I regret nothing. It is a rebellious cry, refusing accusation, and claiming pride in one’s actions despite potential condemnation by others. “Je ne regrette rien” are words that carry an archival sentiment. The phrase is invoked here as an exemplar of sovereign excess and perilous overreaching where remorse is apt. It appeared in a “cable” purportedly sent by an official in the US Embassy in London to the U.S. State Department and disclosed by WikiLeaks in 2010.1 The cable recorded the details of a meeting on 12 May 2009 between UK Foreign Office and US officials about the creation of a marine park surrounding the Chagos Archipelago in the Indian Ocean. The meeting was held to consult the Americans about the latest plan of Her Majesty’s Government (HMG) to exclude the Chagos Islanders from the British Indian Ocean Territory (BIOT) where the US military base on the island of Diego Garcia is located. The Chagossians have run several public campaigns and multiple legal actions to establish their right of abode and right to return to islands from which they and their predecessors had been expelled in the 1960s.2 The words “Non, je ne regrette rien” were made famous in the song recorded by Edith Piaf in 1959. Even then there was no innocence in what sounded like mournful defiance. Piaf dedicated the song to the French Foreign Legion.3 It was later sung by legionnaires leaving their barracks for redeployment following the failed Algiers putsch of 1961. The putsch opposed negotiations being conducted by the French government with the National Liberation Front (FLN) following a French referendum to finally grant independence to Algeria. President Charles de Gaulle invoked extraordinary powers by declaring a state of emergency under Article 16 of the French Constitution to deal with the threat of a military coup in mainland France.4 The crisis was averted. The quartet of renegade generals was defeated. The song remains the parade ground anthem of the French ForeignPage 24 → Legion. “Non, je ne regrette rien” are words to be uttered when the stakes are high, and judgment beckons. Let others judge if they wish, it says, but I have acted. I alone (or history) will be the judge of my actions. Accept the past. Let it be. Or, let me start over. I shall will this melancholia away. It was nothing, nothing, NOTHING! As we will see, NOTHING has a prominent role to play in thought about sovereignty. Take the question of the provenance, authority, or legitimacy of sovereignty. From where does sovereignty emanate? God, King, people, nation, and community have featured in the theologico-political answers to this question. At the heart of each response is vacuity, a gaping void—nothing. Filling this void has been the task of political theology and its avatars in myth, tradition, law, and literature. As we are about to see, the task of accounting for sovereignty is far from over. As empires unravel and sovereign power is redeployed, law gathers the archives that sustain the tenuous balance between arbitrary authority and the legitimacy of executive power mediated by the rule of law. The focus of this chapter is on how law continues to be called upon to provide an alibi for the assertion of sovereign authority and plenitude. Sovereign plenitude, I argue, asserts a form of solitude: of being alone. Cognate concepts of sovereignty such as autonomy, self-determination, independence, and more virulent forms of nationalism are all expressions of this craving to be alone, to be One, with a discrete identity and unity. Placing the assertion of sovereign solitude alongside the archive of sovereign violence, my inquiry can be summed up as follows: the sovereign asserts that it is alone, has a plenitude of power, and regrets nothing. What role does law play in sustaining this conceit and fiction? The interrogation of sovereign solitude addresses a number of priorities of this book. The first is to intervene in the by now dominant paradigm of studies of sovereignty that casts the sovereign decision as intimately tied to what Carl Schmitt termed the “state of exception.”5 The concept of the exception received renewed attention following the publication of Giorgio Agamben’s Homo Sacer: Sovereign Power and Bare Life.6 Agamben characterized the life caught in the grip of sovereign power as abject, abandoned, and bound to authority at the same time. As we will shortly see, influential studies in legal and political theory have grappled with the constitution of sovereign power in and through the production of the exception and bare life. In contrast, I argue

that the sovereign event has been desiccated in many of these studies. “Bareness” has come to stand in for the appearance of the constituent moment, thereby neglecting the central role of law. The focus has too often been on the residue of sovereign power rather than Page 25 →sovereignty per se. In contrast, my emphasis on sovereign solitude redirects attention to the appearance of sovereignty in forms that are both archaic and incomplete. This is a form of sovereignty that insists on autonomy, independence, and immediacy (in the sense of not being mediated by legal norms). This sovereign solitude is an extravagant pretention produced, managed, and supplemented by law. I examine and critique the purported self-sufficiency (or ipseity) of sovereignty through a close reading of judicial decisions in relation to the Chagos Archipelago.

Sovereign Regrets The Chagos Archipelago is located in the middle of the Indian Ocean and is composed of islands ceded by France to Britain in 1814. From 1814 to 1965 they were governed as part of the British colony of Mauritius. When Mauritius was granted independence in 1966, the Archipelago was excised and retained as the territory of the British Crown. The new colony was constituted through the British Indian Ocean Territory Order 1965 (BIOT Order), an order in council made under the royal prerogative. The royal prerogative is a residue of absolute monarchic power now exercised, with few exceptions, on the advice of ministers of the Crown. It is a form of authorizing sovereign or executive action without recourse to debate or endorsement by Parliament. It is an archaism that remains in place in the British Constitution. The motivation for the establishment of the British Indian Ocean Territory was the security and defense interests of the United States. As the US State Department stated in 2000, its military base in Diego Garcia is “an all but indispensable platform for the fulfilment of defence and security responsibilities in the Arabian Gulf, the Middle East, South Asia and East Africa.”7 In order to establish this military base, the Chagos Archipelago was emptied of its population. As with many imperial endeavors, an uninhabited desert needed to be created. Sovereign solitude would follow from the expulsion of the population. The islands of the BIOT were populated for generations by a people referred to in the legal judgments and other documents as the Ilois. The term means “islander” and was initially applied generically. However, as Laura Jeffrey points out, Ilois has become increasingly derogatory.8 Chagos Islanders were the decedents of indentured laborers who had inhabited the islands since the 18th century. In order to make the islands available to the United States and to create the requisite desert islands the population was expelled by the British government. Moreover, this was done in a way that Page 26 →deliberately cast the inhabitants as those with no rights to inhabit the islands. The economic activity on the islands had been the production of copra. Title to the islands in private law had been vested in a plantation company, Chagos Agalega Ltd. The Crown purchased these rights in 1967. It was made to appear that the Chagos Islanders had no right to reside on the islands. As a non-self-governing territory, BIOT and its population were subject to the protections of Chapter XI of the UN Charter. This required member states of the UN with responsibility for these territories (in this case the UK) to promote the social, economic, and political interests, as well as self-government, of the people. One motivation for expelling the population in the 1960s was to avoid these international legal obligations. The other was the purported security interests of the United States. Moving forward to this century, the establishment of a Marine Protected Area (MPA) over BIOT in 2010 followed over a decade of complex litigation initiated by the exiled Chagossian population. The MPA effectively consolidates the exclusion of the archipelago’s inhabitants once and for all. The UK can now claim that resettlement would damage the biodiversity of a fragile marine environment. Desert islands would be produced and maintained under the cloak of environmental protection. A cable exposed by WikiLeaks discloses that the United Kingdom sought to assure the Americans that their extensive military and security interests on the islands would, notwithstanding the establishment of the MPA, remain unaffected. Sovereign solitude would be produced, and those putting it into effect would have no regrets. The section of the cable headed Je Ne Regretted Rien reads as follows:

8. (C/NF) Roberts [UK official] observed that BIOT has “served its role very well,” advancing shared U.S.-UK strategic security objectives for the past several decades. The BIOT “has had a great role in assuring the security of the UK and U.S.—much more than anyone foresaw” in the 1960s, Roberts emphasized. “We do not regret the removal of the population,” since removal was necessary for the BIOT to fulfill its strategic purpose, he said. Removal of the population is the reason that the BIOT’s uninhabited islands and the surrounding waters are in “pristine” condition. Roberts added that Diego Garcia’s excellent condition reflects the responsible stewardship of the U.S. and UK forces using it.9 No regrets, then, about the removal and exile of a population. The contingency of strategic purposes would permit “necessity” to be the only moral Page 27 →measure. And with a Malthusian twist, the expulsion of the population has apparently preserved the islands and its environs in a pristine condition. Sovereign forces are left alone to pursue their strategic military interests while a significant number of the erstwhile population of the islands have languished in the slums of Port Louis, Mauritius, and the Seychelles.10 While HMG adopted the conventional response of neither confirming nor denying that the WikiLeaks cable was genuine, its release enabled further judicial review of whether the UK minister had exercised powers for an improper purpose in seeking to exclude the Chagossians by establishing the MPA. The court enabled the examination of how sovereign solitude was produced, without disturbing the fact of expulsion or exile of the population. In the face of sovereign exceptionalism the law appears to respond with rigorous scrutiny. The judge as archivist is seemingly meticulous in recalling the facts, and distinguishing fact from law—but, as I argue below, the court proceeds as if a document can have its status and veracity suspended, while serving as a pseudo fact at the same time. In the case of the WikiLeaks cables, the contents reflected in a document were tested under crossexamination of Foreign Office staff, but the cables could not attain the full status of a factually verifiable document. The cables could not fully attest to the events that had taken place even when they were scrutinized under cross-examination of persons who were present when events and statements reflected in the documents took place. This is because provisions of the Official Secrets Act 1989 make it an offense to disclose government documents, and the Vienna Convention on Diplomatic Relations (1961) makes official correspondence of a mission inviolable. The Court dealt with these constraints as follows: To address those issues [of secret government correspondence] it is necessary to make certain assumptions about the document. In principle, it can be one of two things: an accurate copy of a genuine Embassy “cable”; or an unsourced and worthless fiction. In the latter event, it would be of no evidential value, so that no question could arise of its admission in evidence. It is only if the document is genuine that the two questions referred to above [about the legal constraints on admitting official documents] arise. For this purpose, we do not need to make any finding on the authenticity of the document. We will simply assume for the purposes of argument that it is genuine. If it is, we know little about it apart from its contents.11 The WikiLeaks cables provided highly pertinent and damaging evidence of US-UK collusion to permanently exclude the Chagossians from BIOT by Page 28 →creating the marine protected area. The court permitted the cross-examination of officials with reference to the cables without admitting the full scope of their evidentiary potential. That is, the court proceeded as if the cables were a record of an event, but refused to accept that the cables were authentic documents. This fiction sustained the liberal phantasm of fearless judges advancing the rule of law, while at the same time leaving the exercise of sovereign power undisturbed. Judicial review thus vindicates the rule of law, while limiting the archive of facts about sovereign violence.12 The WikiLeaks cable achieved notoriety as it also featured the return of a previously lamented characterization of the Chagos Islanders as “Men Fridays.” Earlier litigation by the Chagossians unearthed a British Foreign Office memo from 1966 that referred to the Chagos Islanders as “Tarzans and Men Fridays.”13 The Chagossians had been reduced to racialized expendable figures in the British government’s desire to manufacture Crusoean sovereign solitude to secure the security interests of the United States in the Chagos Archipelago. The exile of the Chagos Islanders was a concomitant of creating a solitary enisled sovereignty. British sovereignty in the service of US security interests would need to be decisively separated from the

population that inhabited the islands. The MPA that was supposed to consolidate this sovereign solitude was thus part of a much longer process of creating a new spatialization of sovereignty and law in the Indian Ocean. Let’s consider the contours of this new nomos before returning to the details of the case. Accounts of how a new nomos emerges offer insight into the political and philosophical understandings of the appearance and form of sovereign power. This in turn will inform the analysis of how courts treat archaic sovereignty in the Chagos Archipelago.

Nomos and Exception Among the many paradoxes that accompanied the fall of the Berlin Wall in 1989 was the apparent consensus about a new era of globally applicable international norms matched by a rise in sovereign exceptionalism. The first Gulf War and the emergence of “humanitarian bombing” in the Balkans ushered in a new nexus between law and war. Interventions in the name of international law or the Responsibility to Protect needed a global enforcer. Unilateralism and war by coalitions of states against a common “enemy of humanity” emerged as a form of global “police action.”14 A proliferation of sovereign decisions on who is the “enemy” (of the “world”) was the flipside of the purported global ascendance of liberal democracy. The purported end of ideology and history saw the rise of “sovereign Page 29 →ends.” These developments partly explain the rise in the stock of Carl Schmitt, the fallen German jurist, who had done more than any other to explain the links between the sovereign decision on friend/foe and the constitution of law and political community in the sovereign decision on the exception.15 Among the influential fin de siГЁcle characterizations of sovereignty that drew on Schmitt’s thought was Agamben’s claim that the “camp” is the juridical and political paradigm of modernity.16 His account began with the Aristotelian distinction between zoД“ and bios: biological and political life. The distinction is important because it helps to pose the question of how mere life becomes politicized. The politicization of life, Agamben explained, is the metaphysical task par excellence. The status, form, and representation of biological life is then at the heart of Western political philosophy. In Greek antiquity, political life was the highest form of life in the polis. What happens when mere life (das bloГџe Leben in Walter Benjamin’s “Critique of Violence”) or “bare life” becomes politicized?17 Agamben argued that the production of bare life had come to lie at the constitution of modern sovereignty: [T]he inclusion of bare life in the political realm constitutes the original—if concealed—nucleus of sovereign power. It can even be said that the production of a biopolitical body is the original activity of sovereign power.18 His objective was to unite Arendt’s study of totalitarianism and Michel Foucault’s work on biopolitics to reveal that the state of exception theorized by Schmitt was now the norm. Agamben holds himself out to be a philosophical detective eager to reveal “hidden” dynamics for the “first time.”19 However, such claims pay little or no attention to how present forms of sovereign violence manifest archaic imperial practices that have never retreated. The character of sovereignty is not adequately captured in pronouncements about the permanence of the paradigmatic state of exception. Sovereignty is, as we will see, a form of force inscribed, instantiated, and reiterated in legal determinations that buttress violence. Sovereignty is a form of legal violence. The sovereign decision, as Schmitt observed, produces and guarantees “situational law.”20 There are two important concepts that Schmitt later used to elaborate the relationship between law and space: Nomos and GroГџraum.21 In The Nomos of the Earth, Schmitt characterized “nomos” as the “first measure of all subsequent measures.”22 Nomos is linked to the first land appropriations, the partition and classification of space, and to Page 30 →primeval divisions and distributions (67). Schmitt wished to retrieve “nomos” from the misuse of the positivists of the 19th and early 20th century, and reinstate its “energy and majesty” (67). Nomos was not to be regarded as a “mere act by which is and ought could be separated.” Nor should it be equated with regular acts, statutes, laws, measures, or decrees that mediate life. Nomos should not be

translated as law (Gesetz), regulation, or other similar expressions. Schmitt stresses that [n]omos comes from nemein—a word that means both “to divide” and “to pasture.” Thus nomos is the immediate form in which the political and the social order of a people becomes spatially visible—the initial measure and division of pasture-land, i.e., the land-appropriation as well as the concrete order contained in it and following from it. (70) Nomos is the immediate form in which the political and social order of the people becomes spatially visible. Nomos is what gives a spatially concrete unity by which a people or tribe becomes settled or historically situated, which becomes visible in the appropriation of land during the founding of a city or colony (70). Schmitt focuses on the “orientational” character of these original words like nomos—and the spatial sense that allows one to recall that the core problem of every legal order is “bracketing” in the spatial sense. Schmitt’s primary interest was the bracketing of war in the international order of the jus publicum Europaeum. He also went on to compare the division of land and sea, the emergence of the maritime powers, the becoming worldwide of the Eurocentric order, and the emergence of a “new” nomos of the earth. At the time he was writing it was centered on the emerging Cold War, and his early observation that American and Western hegemony would triumph. In phenomenological terms we can extend this notion of “bracketing” as the condition by which a new nomos emerges. The bracketing of space creates a new nomos. Usefully for our purposes Schmitt compares nomos to the English term “radical title” (to be treated as original spatial ordering) (70). While the original act of land appropriation such as establishing a city or a colony is nomos—nomos also has a future. There will be perpetually new manifestations of nomos when space is apportioned in every historical epoch (78). I want to focus on the “immediate” and “visible” qualities by which Schmitt says this future nomos will be experienced. For Schmitt it was England, less entangled with the wars of the European continent, that was able to determine the “nomos of the earth from Page 31 →the sea” (173). The sea represented a “spatial freedom” (174) away from the equilibrium struck within the jus publicum Europaeum. England was able to capitalize on piracy and nonstate merchant traders. The 17th century witnessed a departure from the categories of Roman law (res nullius—things belonging to nobody [French]; and res omnium—things belonging to everybody [English]) to a more “elementary conviction” that “law and peace are oriented only to land” (175). The sense that the oceans belong to all was “reinterpreted,” Schmitt tells us, so that the sea could be the “liberation from moral and legal ties” (175). “Law is only valid in a certain place”—and the seas had neither “law, nor freedom, nor property” (175). The sea was then like a Hobbesian state of nature where everything belongs to everyone—which of course means also that the strongest would prevail against the weakest. By the late 17th century England would lead the way toward the “new nomos of the earth” because it was able to project maritime power across the globe. The signature of this epoch is attributed to Thomas More, who, in Utopia (1516) imagined the destruction of the old nomos of the earth. Schmitt calls this the basis for the “leap into the total rootlessness of modern technology” (178). Schmitt also deployed another concept to account for the spatialization of the globe: GroГџraum (231). GroГџraum referred to a spatial sphere of influence or domination. The example Schmitt used was the Monroe Doctrine of the United States. This was the foreign policy promoted by President James Monroe in the 19th century to the effect that North and South America should be regarded as part of the sphere of influence and domination of the United States in which erstwhile European imperial powers should not seek to intervene. Schmitt used the term GroГџraum to denote the appearance of different spheres of international law. This supplanted the idea of international law as an extension of one particular GroГџraum—that of the jus publicum Europaeum. This Eurocentric international law confronted a crisis of influence by the 1880s and 1890s as it moved from being Eurocentric to the “spacelessness of a general universalism” (230). Such a universalism was confronted with a plurality of spheres of international law at the same time that the ascendance of the United States was orienting a “new spatial order of the earth from the West” (231). What Schmitt was heralding was the transfer of power from one Eurocentric unipolar world to another—a US-centric one. This was

occurring at the same time as the universality of international law was being asserted. The plurality of GroГџraum was a harbinger of the multipolar world that Chantal Mouffe, in a neo-Schmittian mode, has argued in favor of.23 The antagonisms of spatial ordering that Schmitt gives an account of, and the multiplePage 32 → centers of agonistic global power that Mouffe promotes, manifest distributions of global power. However, less evident in their discourse is how these distributions of power and forms of sovereignty rely on juridical mediation. Spatializations of power and authority, whether plural or not, are inscribed through juridical forms and have borders that are strenuously enforced by legal orders. Critical theorists give insufficient attention to this legal aspect in their accounts of the new nomos. Indeed, the more influential orientation, such as that of Agamben, explicitly denies the role of law in the spatializations of sovereign power. Agamben impugns Schmitt for obscuring the relationship between nomos and the state of exception.24 The state of exception and the state of nature, what is outside and inside the juridical order, are rendered in spatial and topological terms as a “zone of indistinction.”25 The result is an often repeated but spurious characterization of the nomos as a lawless localization of law.26 It is a reading of Schmitt that too readily associates him with repeating a Lockean simplification that “In the beginning, all the World was America.”27 While it is true to say that the colonial mode of appropriating territory does often require the production of a “desert” in the mind of the colonizer, these assumptions are necessary because of juridical regimes such as an order of natural rights. One way or another there is a legal frame of reference through which forms of sovereign violence take place. Agamben renders indistinct a range of vastly different formations, including Schmitt’s account of the jus publicum Europaeum, the sovereign decision on the exception, and contemporary instances of the “camp.” He acknowledges that the sense in which these formations are perceived to be “juridically empty” is a “fiction.” However, the spatialization of the exception whereby inside/outside are collapsed into one makes it all too easy to avoid the significance of legal mediation in the production of sovereign forms: What happened and is still happening before our eyes is that the “juridically empty” space of the state of exception (in which law is in force in the figure—that is etymologically, in the fiction—of its own dissolution, and in which everything that the sovereign deemed de facto necessary could happen) has transgressed its spaciotemporal boundaries and now, overflowing outside them, is starting to coincide with the normal order, in which everything again becomes possible.28 On this analysis, the exception is now the norm, and although the privation of law this implies may, at root, be a fiction, there is no account of how this Page 33 →“juridically empty” space is created. Sovereign violence is too readily thought to be immediately present as Schmitt had expressed it in his account of nomos: “Nomos is the immediate form in which the political and the social order of a people becomes spatially visible—the initial measure and division of pasture-land.”29 Curiously, the sovereign decision on the exception is both “juridically empty” and coincides with the normal order. Schmitt’s account of a nomos arising out of 18th and 19th century colonialism from which the jus publicum Europaeum emerged is significant. But this significance lies in what it tells us about the relentless Eurocentric urge to situate the spatialization of the world through a Euro-British imaginary. When Agamben draws a line from Locke’s “In the beginning, all the World was America” to the camp as the paradigm of the modern, he repeats this gesture. Agamben appropriates from Schmitt the proposition that the state of exception in which we live matches the “immediate” nature of all situated law. But then what are we to make of the innumerable mediatory attempts by courts to subject executive power to judicial scrutiny in these exceptional zones? If there is a new nomos emerging, what is the character of sovereignty that drives it, and how does law enable and facilitate its emergence? Mouffe has described and endorsed the emergence of a multipolar world marked by agonism rather than Schmittian antagonism.30 This agonistic plurality is oriented around regional superpowers that reign over spheres that resemble Schmitt’s GroГџraum. If there were such zones of sovereign power and influence, we would

still need to account for the finitude or limit of each sphere of power and authority. Expressing this in terms that I have been developing here, we would need to give an account of how sovereign solitude is produced as a spatial and temporal phenomenon. I attend to that task through a reading of the Chagos litigation below. These cases demonstrate the layers of mediation that the law provides in order to sustain the phantasm of sovereign solitude. Far from “juridically empty” specializations of power, we will observe forms of sovereignty put in place and sustained by law. Before getting to this, however, I will point to the wider implications of my analysis for legal and political discourse on the sovereign exception.

Bare Sovereignty Accounts of sovereignty in legal and political theory are most illuminating when they are situated in historical studies that lend depth to the analysis of sovereign violence. The objective of this section is to identify influential Page 34 →accounts of the relation between sovereignty and law in order to place my reading of the Chagos cases in conversation with that discourse. Sovereignty, as we will see, is anything but bare. A central question in legal and political theory concerns whether imperial sovereignty in colonies of the European empires were zones of legal exception. This is not a problem that lends itself to a single account that is true for all places and times. But we can examine influential approaches to whether the site of colonial usurpation is filled with sovereign plenitude—a form of sovereign solitude or being-alone—or whether it is mediated and sustained by law. We can then consider the nature of that mediation. The question is whether colonies are zones of nonlegality and lawlessness, or are marked by a “state of exception” that is nonetheless juridical. Nasser Hussain brought elegant clarity to this discussion when he identified two orientations to accounting for the nature of sovereignty in postcolonial thinking.31 One approach sees colonial law as a constitutive negative, and the other views it as the limit of the modern state. The first, epitomized in the work of Peter Fitzpatrick, would see in the colony the constitutive lineaments of modern law and the state, as well as the contradiction of Occidental law’s universal claim. This is a law that is “wedded in its apotheosis to liberty and a certain equality” but “becomes thoroughly despotic when shipped to the rest of the world in the formal colonizations from the late eighteenth to the early twentieth centuries.”32 It is a contradiction that is resolved through racism and the “mythic mediation of the nation” where law is integrally involved in elevating some nations above others.33 This “racial splitting” would enable modern Occidental law to assert a universal reach while maintaining the subordination of non-Europeans.34 It is not that myth finally resolves the contradiction of universal and particular. As Fitzpatrick later put it, in modernity’s apparently postmythic times, the absence of a “transcendent scene” or trickster figure is “replaced by a negated mediator, the savage with its вЂambiguous and equivocal character’.”35 Where, for Fitzpatrick, the colonial is the negative that constitutes the universality of the modern state, the second approach associated with Partha Chatterjee sees race in the colonial state as a limit to be superseded.36 As Hussain puts it, this latter view regards colonialism as a “condition where the modern project reaches its strained limit.”37 For Lauren Benton, imperial sovereignty is best characterized as a particular form of “bare sovereignty”: partial, divided, attenuated, but certainly not marked by the absence of legal mediation.38 Imperial sovereignty, on her account, is not at the outer limits, or outside the juridical order. However, it is not clear what is “bare” about this sovereignty, or how Page 35 →such bareness relates to claims about the singular plenitude of sovereign power. While bareness has been attributed to a juridical authority or forms of life, the proliferation of legal mediation that accompanies sovereign violence suggests there is nothing bare about imperial sovereignty. This warrants closer examination as Benton is not the only scholar to deploy “bareness” in characterizing sovereignty. Bareness suggests a lack of legal mediation so it is worth considering bare sovereignty in imperial contexts. Are we to take the greater frequency of emergencies in the colony than in the metropole—a reality that Hussain identifies—to mean that the exception as the rule is a uniquely colonial “iteration of the modern”?39 Alternatively, is empire an earlier “historical stage before the emergence of modern state sovereignty,” or, more consistently with Schmitt and Agamben’s approaches, part of a historical process where the exception

increasingly becomes the rule?40 Benton argues that this line of questioning, treating empires as “zones of exception,” while not trivial, “oversimplifies imperial sovereignty.”41 For Benton, where empire is seen as a site of frequent suspension of the law, a narrative is imported that naturalizes the exception as property of imperial sovereignty.42 These are problematic assumptions that follow from inadequate knowledge and attention to the world outside Europe.43 Benton goes on to suggest that [t]he rule might generate (and incorporate) exceptions as simultaneously external to and implied by the rule, but the rule of law contemplated no externalities because it implied the circulation of law in different forms into all spaces of sovereignty.44 Contrary to Agamben, for whom the exception is not a particular kind of law, Benton gives an account of [a] lumpy juridical order, in which legal actors, even rogues (pirates [В .В .В .В ] or isolated and autocratic garrison commanders), engaged in creative legal posturing. [В .В .В .В ] Subjects did not consider themselves to be operating within a “special kind of law” but rather, at most, to be producing logical variations in the law of the empire.45 The important contribution Benton makes is to point to the partial, attenuated, and divided character of imperial sovereignty, and to link this to geographical tropes. Rivers, islands, and mountains point to variable sites and forms of imperial legal ordering.46 The term “bare sovereignty” has multiple and inconsistent meanings. Page 36 →For Benton, who traces its origins to British colonial practices in India, the term denotes a partial, attenuated, or divided sovereignty.47 Bare sovereignty is distinguished from jurisdiction, which manifests a greater intensity of command and control. For instance, where there was a contest between the authority of the nizam in the cantonment of a princely state and that of the British imperial government, the former was recognized as having a minimal form of “bare sovereignty,” and the latter as having jurisdiction.48 This account of imperial India in the 1870s suggests an erasure of “effective sovereignty,” even though conflict over jurisdiction continued.49 The notion of “bare sovereignty” is also used to suggest a plenitude of power. Benton points to evidence of it, connoting unlimited or unadorned power in the 1880s, analogous with a theological connotation of the unmediated power of God.50 Costas Douzinas places “bare sovereignty” at the heart of his account of the metaphysics of sovereignty.51 Drawing on an avowedly Hegelian dialectical methodology, Douzinas argues that “bare sovereignty is both an inescapable condition of every sovereign structure but it also represents a historical period before the rise of the theological sovereignty in modernity.”52 In his historicist account, a community gathers itself in a space or terrain called a territory. The community demarcates its interior from an exterior by legislating—that is to say, through law. Bareness rapidly slips away, then, as community is only possible by creating a common law: “Law is the way in which a people addresses itself and in so doing constitutes itself as the people and as a coming together of singularities.”53 This self-constitution through law is termed “jurisdiction”: the “name of the appearance of a community.”54 The speaking of law (juris dicere) is the presupposition of political life. There can be no community without the law that comes before it (or simultaneously with it): “we can call this minimal expression of community, the degree zero of sovereignty or bare sovereignty.”55 Bare sovereignty thus turns out to be the performative utterance of law. An enunciation, the speaking of right or law, is the bare sovereignty that settles the “origin and ends of a community.”56 In a fabulous moment that collapses the universal and particular, constative and performative, a mouth or voice utters the existential opening of the law.57 Once the law-giving voice has spoken, sovereignty is transformed from bare to theological sovereignty. A singular body-politic emerges, the “One-All or Hobbes’ Leviathan.”58 In summary, there is a singular voice of the legislator that speaks in “open space of uncircumscribed relations”; the utterance gathers a community ruled by a common law; this event of jurisdiction leads to the founding of modern sovereignty, the One-All of multiple singularitiesPage 37 → rolled into a body-politic.59 With so much going on to fill a void, one is left wondering what is bare about all this. This elaborate gathering of juridical and political forms (community, jurisdiction, territory, performative utterance, “One-All,” etc.) are necessary to give an

account of the appearance of sovereignty. In the discussion that follows, I argue that the As If, legal fictions, holds together this edifice of sovereignty. Many discussions about the nature of sovereignty are centered on the role of law in mediating sovereign violence. Agamben’s account, building on Schmitt, tends toward understanding sovereignty as a force unmediated by law. This is consistent with his antinomianism, and stands in stark contrast to the majority of influential thinking on the relation between sovereignty and law. Douzinas characterizes a metaphysics of sovereignty where bareness expresses the co-emergence of law, community, and sovereignty. Fitzpatrick, in his critique of “bare sovereignty,” emphasizes the centrality of law: “[w]e can live only mediately”—an incipient inclusion in law that “creates mediated life—and the mediated life is the only life we can sentiently be with.”60 In his account of the political theology that inheres in the role of the U.S Supreme Court, Paul Kahn emphasizes that the “American Supreme Court founds its claim for legitimacy on its capacity to speak in the voice of a transhistorical popular sovereign.”61 Limit, community, territory, speaking right, One-All, gathering, mediation, “lumpy” juridical orders, and political theology are among the terms and concepts deployed in accounts of sovereignty. While some of these notions are used as characterizations or cognate terms for sovereignty, there remain questions about how law serves as an archive of sovereign violence. What is the instance and medium of the sovereign utterance of right? Who gathers community, or characterizes the limits of territory? How does law channel the “transhistorical popular sovereign”? These questions are relevant in multiple spatial and temporal formations of sovereignty. The phenomenological problem that underlies them is the appearance or bracketing of sovereignty. This demands a more thoroughgoing account of law’s role in mediating sovereign violence. It is a task I take up through my reading of the cases relating to the Chagos Archipelago. In the rest of this chapter I delve into law’s mediation of forms of imperial sovereignty over islands of the Chagos Archipelago in the Indian Ocean. We will find a sovereign asserting solitude, autonomy, and exceptionality. At each turn it is a sovereignty that relies on an archive of legal fictions. How the law proceeds “as if” in sustaining sovereign violence can then be added to our understanding of sovereignty. This particular archive is a watery one, and it sustains the presence of an archaic imperial sovereignty. Page 38 →

Amphibious Law The wateriness of law is long-standing. Marc Shell points to the “island” on or upon the River Thames, Runnymede (“water-meadow”), where, as history has it, King John and English barons signed the Magna Carta, which limited the monarch’s powers, on 15 June 1215.62 As we are about to observe, islands have proved to be sites of sovereign excess rather than limitation; their watery shores hardly serving to “hem in” the power of the sovereign.63 The list is long and growing: the Chagos Archipelago, Australia’s policy of internment of migrants at its Indian Ocean territory of Christmas Island, the outsourcing of such internment to Nauru or Papua New Guinea’s Manus Island; and the US base at Guantanamo Bay are just some recent examples.64 Here we will consider how the judicial imaginary conceives a seemingly waterborne law that moves across islands from the United Kingdom to the Indian Ocean. There was more than a literary flourish involved in Lord Justice Hoffman declaring that the claim of Chagos Islanders to be permitted to return to their island-homes should be denied as they were not realistically going to “live Crusoe-like” in the British Indian Ocean Territory. His conclusion would suggest that the Chagossians were not up to Crusoean ingenuity. The reference to Robinson Crusoe at once connotes selfsufficiency and heroic tales of European civilization sustained in adverse conditions.65 Daniel Defoe’s Robinson Crusoe is a powerful fable of a man marooned on an island who defeats all odds, conquering nature and overcoming his fear of beasts and savages by subduing and domesticating them. Crusoe stands for the character of sovereign solitude, the quality of being sovereign, which the Chagossians cannot (must not) even dream of. Located on the threshold between “My Man Friday” and “Crusoe,” the Chagos Islanders and their

claims concerning BIOT manifest the persistence of an archaic form of sovereign violence and mode of imagining the individual’s relation to society. As Joseph Slaughter has explained in the context of deliberations that led up to the Universal Declaration of Human Rights in 1948: Robinson Crusoe represented for the delegates a common universal culture (a “world heritage”), in which reposed the collective wisdom of centuries of social history, practice, and theory necessary to rearticulate the proper relations between individual and society as international human rights law.66 Crusoe was deployed by opposing sides in a debate about the social nature of rights manifested in Article 29 of the Universal Declaration. At stake Page 39 →was the nature of the relationship between the individual and society, and the implications of that relation on the individual’s capacity to bear and enjoy rights.67 As Slaughter points out, Defoe’s novel provided a “delicate literary solution to the temporary disruption of civilization’s progress, allegorized in Crusoe’s biography of shipwreck and the re-creation of a little European (read human and universal) society that he deliberately quit in his youth.”68 Lord Justice Hoffman’s assertion that the Chagossians are not realistically going to live Crusoe-like on the Chagos Islands channels this powerful literary trope of European civilization. However, this is not only a convenient vehicle for glorifying the Enlightenment characterization of the individual that the Chagossians cannot attain. As I go on to argue, Hoffman is securing the ground for another spatialized form of power: sovereign solitude. The Crusoean narrative in the Chagos litigation harbors three manifestations of an archaic form of sovereignty: the production of a “new nomos” offshore, the crafting of a judicially mediated form of sovereign “abandonment,” and exiled bodies that open the question of what they signify for a political community. We will consider each of these in turn. But, first, what is the significance of the “archaic” here? Michael Taussig builds on Walter Benjamin’s observations to elaborate the rupture of the archaic into modernity. The meaning and value of things change over time. The resurfacing of the archaic, Taussig argues, teaches us that “different ideas of time may coexist with a past precisely because that past is both real and fictional, nature and вЂsecond nature,’ reminiscent of Freud’s depiction of fantasy as play with memories involving montage and overlay.”69 When the past resurfaces as montage and overlay there is great force in the image that forms (this is what, after Benjamin, Taussig terms the resurfacing of the archaic in modernity). Benjamin called this a dialectical image (and Taussig usefully compares it to the force of the “phantom objectivity” of commodity fetishism). For Taussig, the “sea is the paramount instance in the West of the вЂpast from time immemorial’.”70 But why is Taussig’s account (especially given his great oeuvre) limited to “the West”? The sea is not so confining, and Taussig’s blind spot is revealed in his reference to the American poet Charles Olsen, and his very short list of history-making bodies of water. Taussig repeats Olsen’s Euro-American neglect of the Indian Ocean. Nonetheless, the sea as site for resurfacing of the archaic in modernity is a useful way to grasp the appearance of Robinson Crusoe and his “Man Friday” in the Chagos litigation. As with previous imperial instantiations, an uninhabited space ripe for sovereign solitude needed to be created. And fiction was at the heart of Page 40 →creating this nothingness. A key strategy of the British government was to proceed as if there was no permanent population in the Chagos Archipelago. A 1966 Colonial Office minute admits this with candor: “It would be highly embarrassing to us if, after giving the Americans to understand that the islands in BIOT would be available to them for defence purposes, we then had to tell them that they fell within the perview [sic] of the UN Committee of Twentyfour [the Special Committee on Decolonization].” Another official refers to “a certain old fashioned reluctance to tell a whopping fib, or even a little fib, depending on the number of permanent inhabitants.” In a note dated 24 August 1966, the permanent undersecretary of the Colonial Office states:

We must surely be very tough about this. The object of the exercise was to get some rocks which will remain ours; there will be no indigenous population except seagulls who have not yet got a Committee (the Status of Women Committee does not cover the rights of Birds).71 Another official, a Mr. Greenhill, comments: Unfortunately along with the Birds go some few Tarzans or Men Fridays whose origins are obscure, and who are being hopefully wished on to Mauritius etc. When that has been done I agree we must be very tough and a submission is being done accordingly.72 There is ample documentation to suggest that a primary objective of the British government was to concoct the sense that the islands had no indigenous population—a Foreign Office memo addressed it under the title “maintaining the fiction.”73 Then followed the implementation of the wholesale removal of the Chagossians under the Immigration Ordinance 1971 made by the commissioner of BIOT. The Divisional Court proceedings in 2000 addressed the question of whether the commissioner of BIOT was entitled to create the Immigration Ordinance under the BIOT Order, which empowered the commissioner to “make laws for the peace, order, and good government of the Territory” (section 11, BIOT Order). Can expelling a population amount to making laws with respect to “peace, order, and good government”? For Lord Justice Laws the phrase means that a population is to be governed, “not removed”: “I cannot see how the wholesale removal of a people from the land where they belong can be said to conduce to the territory’s peace, order, and good government.”74 He thought it appropriate to quash section 4 of the ordinance. Page 41 →The UK government’s response to the judgment in Bancoult (No 1) was to await the results of a feasibility study about resettlement, and to permit the Chagossians to return to the outer islands of the archipelago. In 2002, before the study was completed, the Chagos Islanders commenced another action for compensation and restoration of property rights. This was struck out, upholding the validity of compensation granted in 1982.75 The adequacy of compensation, and the conditions under which it was obtained and dispersed, continues to be a matter of contention. The persistent claims by the Chagossians highlight the problem of doing justice to the past. What elements condition the judicial decision to draw a line between the past and future? What are the limits to what can be recalled in the process of addressing sovereign violence? Despite the elaborate attempts by the British government to make permanent the expulsion of the Chagos Islanders—the act of dispossession is never completed, never resolved. The Bancoult jurisprudence disrupts the linearity of time, and the proximity of the marginal spaces of empire to the center of imperial administration and governance. In Bancoult (No 2) Lord Justice Hoffman summarized the findings of the feasibility report on the resettlement of the archipelago issued in June 2002. In doing so he slips from the report’s mundane findings to conclude that the “the idyll of the old life on the islands appeared to be beyond recall.”76 The report had found that fisheries would need further investment, tourism needed a place where a plane could land, there were shortages of water for anything beyond domestic use, and the global reality of climate change and the threat of rising sea levels also threatened the archipelago. The claimants’ desire to return was reduced to nostalgia for what should now be given up (“the idyll of an old life”). The Chagossian demands are relegated to native nostalgia for an island-idyll. In what sense is the old life beyond “recall”? If recall means memory, there is no shortage of that among the Chagossians or the growing archive of judicial decisions. If what is meant is recall, as in re-create life on the islands, then we are returned to sovereign exigencies that the court will not disturb by permitting another population (in addition to the military base amply sustained by the territory) to reinhabit their homes. The possibility of being in relation to these islands appears and disappears, as the islands might too one day, but law’s archive of the expulsion and exile of the Chagos Islanders will not yield such clear demarcations of time and space. Expulsion demands eternal reinscription.

Indeed, the government’s next step was to attempt to close down any possibility of return to the islands by creating a new constitution for BIOT Page 42 →by Order in Council under the prerogative. The British Indian Ocean Territory (Constitution) Order 2004 included the following: (1) Whereas the territory was constituted and is set aside to be available for the defence purposes of the Government of the United Kingdom and the Government of the United States of America, no person has the right of abode in the territory. (2) Accordingly, no person is entitled to enter or be present in the territory except as authorised by or under this Order or any other law for the time being in force in the territory.77 But this too was not enough to fully exile the Chagossians. While the plenitude of sovereignty is at the heart of what is asserted in the Constitution Order of 2004, a further supplement to the expulsion of the Chagossians would be needed. As remarked above, on 1 April 2010 the UK foreign secretary, David Miliband, created a “notake” Marine Protected Area of 250,000 square miles in BIOT. This would serve to exclude the possibility of fishing in and around the region, and seek to close down the possibility of the archipelago being resettled. BIOT has the status of a non-self-governing colony. What is the extent of the Crown’s power and authority in such a territory? The Order in Council of 2004 was one mode of legislating for this colony. In Bancoult (No 2) the Crown argued that the courts had no power to review such an Order in Council either because it was primary legislation or because such review was excluded by the terms of the Colonial Laws Validity Act 1865. Counsel for the Chagossians argued that the islanders’ right of abode was so fundamental and sacred that only an explicit Act of Parliament could remove it. Once again the extent and limits of powers exercised by a legislature or executive in the name of “peace, order, and good government” was at issue. Let’s consider how these arguments were dealt with. A prerogative Order in Council does have the status of primary legislation. However, Lord Justice Hoffman distinguished it from a law passed by a representative parliament. An Order in Council under the prerogative is primary legislation made by the executive and thus reviewable by the courts.78 The US military facility at Diego Garcia had been used as a base for extraordinary rendition flights. Hoffman referred to this, and allegations that a ship in the waters off Diego Garcia was used as a prison in which detainees had been tortured. Who or what is offended by such conduct? For Hoffman, “The idea that such conduct on British territory, touching the honour of the United Kingdom, could be legitimated by Page 43 →executive fiat, is not something which I would find acceptable.” These are lofty sentiments. They are uttered to sustain the reach of British courts across continents and oceans and keep executive fiat in check. The Order in Council, Hoffman concludes, is subject to judicial review. The reach of imperial sovereign violence and law across time and space is precisely what is at stake in the Bancoult jurisprudence. The legal disputes in Bancoult are significant because they repeat well-rehearsed forms of imperial power and the legal norms that buttress them. The persistence of references to cases such as Campbell v Hall (1774),79 and the continued relevance of the Colonial Laws Validity Act 1865 exemplify this. For the courts the issue is whether a prerogative Order in Council can be subject to judicial review. The colonial officials and administrators are to be found in offices around Whitehall in London. The reach of the Royal Courts of Justice in the Strand to officials in Whitehall can hardly be questioned. But it is the persistence of the disputes around imperial law that is more unsettling. Should the political and legal machinations of colonial territories be determined by their own localized colonial laws (even in the early 21st century) or be subject to the norms of the metropolis? This was the question that the Crown’s recourse to the Colonial Laws Validity Act 1865 sought to resolve. That this problem persists says much about the continuity of imperial forms of law and governance.80 On Lord Justice Hoffman’s own account the argument based on the Colonial Laws Validity Act (CLVA) 1865 is “arcane.”81 The CLVA embodied the famous statement by Lord Mansfield in Campbell v Hall: that if the King (and when I say the King, I always mean the King without the concurrence of

Parliament,) has a power to alter the old and to introduce new laws in a conquered country, this legislation being subordinate, that is, subordinate to his own authority in Parliament, he cannot make any new change contrary to fundamental principles.82

Although it was never clear what such fundamental principles were, the legal tension in the early 19th century concerned the extent to which laws created in colonial legislatures and assemblies had to be consistent with the laws of England. The CLVA was supposed to put an end to such disputes by declaring that no colonial law can be found void on the basis of its repugnancy—that is, inconsistency with the laws of England, except in relation to a statute explicitly meant to apply to the colony. In Bancoult (No 2) the Crown relied on the CLVA to argue that the Order in Council Page 44 →was a “colonial law” created by a colonial legislature in the person of the BIOT commissioner. Therefore the CLVA should apply, thus rendering the Order in Council beyond the reach of the English courts. Despite the Constitution Order being created in Whitehall in 2004, the argument was that the Order in Council should be localized elsewhere—presumably in the Chagos Archipelago. Hoffman refused to treat the order as solely a local law of a far-off colony. Instead, he had it both ways—finding that it was located here and there. This imperial anachronism is aptly regarded as waterborne: The Constitution Order created the BIOT legislature, in the form of the Commissioner, and it seems to me to illustrate the amphibious nature of the Order in Council, as both British and colonial legislation, that the legislature which is said to bring BIOT within the definition of a colony for the purposes of the Act was created by the very Order which is said to be a law “made for a colony.” [В .В .В .В ] It therefore seems to me that from the point of view of the jurisdiction of the courts of the United Kingdom to review the exercise of prerogative powers by Her Majesty in Council, the Constitution Order is not a colonial law, although it may well have been from the point of view of a BIOT court applying BIOT law.83 The Order in Council was a British imperial law to the extent that it was made by “Her Majesty in Council in the interests of the undivided realm of the United Kingdom and its non-self-governing territories.”84 It is this dual aspect that is deemed amphibious. On the one hand the Order in Council manifests what Derrida termed the ipseity of sovereignty.85 Such sovereignty asserts its self-sufficiency by creating a legislature by the performative act of the Order in Council. Nonetheless, the legislature is nonrepresentative, the colony is non-self-governing—that is, the same authority signs and countersigns this law. Hoffman’s amphibious law is the image of a distortion. The law does not subsist in land and water as being “amphibious” would have us believe. What the phrase amphibious law confusingly reveals is that this law is both “here” and “there” to the extent that it is made in the imperial metropolis and has the effect of barring the return of Chagossians to their islands in the Indian Ocean. Amphibious law claims both imperium and dominium—when the latter need not follow from the former. The image of an amphibious law frames a sovereign who purportedly creates Page 45 →a law by his own means for his own ends. Amphibious law is an expression of such sovereign solitude. The assertion, then, is that it is a form of plenary power without limit. The Chagos Islanders had argued that in any event the order was not consistent with the “peace, order, and good government” of the territory. For Lord Justice Hoffman, rejecting the arguments of Sir Sydney Kentridge, counsel for the Chagos Islanders, “peace, order and good government of the territory” have never been construed as words limiting the power of a legislature” (486).86 Providing the legislature had power over the territory, those words have been treated as “apt to confer plenary law-making authority” (486).

Commenting on the level of scrutiny that the measures for removal of a population would have to be subjected to in the process of judicial review, Hoffman concluded that the measures were not “profoundly intrusive”: If we were in 1968 and concerned with a proposal to remove the Chagossians from their islands with little or no provision for their future, that would indeed be a profoundly intrusive measure affecting their fundamental rights. But that was many years ago, the deed has been done, the wrong confessed, compensation agreed and paid. The way of life the Chagossians led has been irreparably destroyed. (487) Moreover, Hoffman was very dismissive of the “symbolic” reasons why the Chagossians may have been pushing for a right of abode and return to their islands (487). When the Immigration Ordinance 2000 enabled return after the Bancoult (No 1) Case, they had not exercised their right. The litigation before the House of Lords was seen as politically motivated—“the continuation of protest by other means” (487): The Chagossians have, not unreasonably, shown no inclination to return to live Crusoe-like in poor and barren conditions of life. The action is, like Bancoult (No 1), a step in a campaign to achieve a funded resettlement. (488, emphasis added) There has, it seems, been an advance since the 1960s. The Chagossians have ascended the scale of social status from “men Fridays.”87 If Hoffman is so consistently mindful of the symbolism of this litigation, what does the persistent reference to Friday (in the Foreign Office memos), and Crusoe in this judgment, signify? What, and more specifically, whom, is Friday/Crusoe a sign of? Page 46 →The persistence of this Robinsonade (the imitation of elements of the Crusoean literary genre) points to the significance of the fictive figure as trope when archiving sovereignty. Indeed, Friday and Crusoe continue to mark the limits of the political, and thereby the sovereign assertion of plenitude. The figure of Friday in the infamous Foreign Office memos of the 1960s conveys a sense of expendable savages that can be discarded in furtherance of the defense interests of the United Kingdom and the United States. The Chagossians were permitted access to the islands between 2000 and 2004, HMG and the Courts having acknowledged the abhorrence of past practices. But for Hoffman, by failing to return, they had not shown themselves capable of going to live “Crusoe-like” in the “poor and barren conditions.” The suggestion seems to be that they lacked the ingenuity and independence to accomplish what Crusoe had. The move from Friday to Crusoe in the bureaucratic and judicial lexicon signifies the condition for ascending to the level of political life worthy of recognition. In this judgment we get a sense of how the judicial imaginary encounters the life of the exile. Friday and Crusoe function as a political sign of the gradations of value placed on life. As we will see, Friday returned as a potent political figure in more recent litigation in relation to the Chagos Archipelago.

Poor-of-World Friday and Crusoe are figures differentiated by technД“. The Greek term refers to craft or art, and more recently has been associated with technology and globalization.88 TechnД“ as a capacity and mode of being in the world connotes the potential to be world-forming, or world-creating. Friday might then be regarded as the figure furthest from technД“, and Crusoe the modern archetype of being-with-technД“. In the figure of Crusoe we find a condensed formulation of world-creating protocapitalist Man. When the Chagossians are rendered as less than Crusoe, that referent carries with it the sense of being poor-of-world (Heidegger’s characterization of animals). They have not shown themselves to be willing or capable of arriving on an island and fashioning their own tools, clothing, shelter, or security. By seeking “funded resettlement” they have shown themselves to lack self-sufficiency. Even the choice of destination asserted in their “right of abode” lacks good judgment—the Chagos Islands are under the threat of rising sea levels. Despite Hoffman’s perception that the Chagossians lacked any Crusoe-like qualities that would enable a return to the Chagos Islands, the UK foreign secretary declared a “no take” Marine Protected Area over BIOT Page 47 →on 1 April 2010. This “no take” area included a ban on fishing, and thus affected the

potential viability of resettlement of BIOT by the Chagossians. It would have been difficult to say what precisely the government’s motivation was for this act of environmental gallantry, if it were not for the disclosure of a “cable” by Wikileaks, later published by the Guardian. The “cable” was sent by Richard Mills, a political counselor at the US Embassy in London to the US secretary of state in Washington. Louis Olivier Bancoult (the lead plaintiff in the series of Chagos cases) argued that it was a contemporaneous record of meetings between US officials and BIOT officials in the Foreign and Commonwealth Office: 7. (C/NF) Roberts acknowledged that “we need to find a way to get through the various Chagossian lobbies.” He admitted that HMG is “under pressure” from the Chagossians and their advocates to permit resettlement of the “outer islands” of the BIOT. He noted, without providing details, that “there are proposals (for a marine park) that could provide the Chagossians warden jobs” within the BIOT. However, Roberts stated that, according to the HGM,s [sic] current thinking on a reserve, there would be “no human footprints” or “Man Fridays” on the BIOT’s uninhabited islands. He asserted that establishing a marine park would, in effect, put paid to resettlement claims of the archipelago’s former residents. Responding to Polcouns’ [political counselor] observation that the advocates of Chagossian resettlement continue to vigorously press their case, Roberts opined that the UK’s “environmental lobby is far more powerful than the Chagossians’ advocates.”89 The cable’s genuineness was neither confirmed nor denied by HMG (applying the neither confirm nor deny policy in relation to leaked or stolen documents). It nonetheless would appear to be the only contemporaneous note of a meeting that took place between British and US officials on 12 May 2009 about a proposal to declare the MPA.90 If the world is a world today—that is, in the sense of being/becoming worldwide or mondialization, as Jean-Luc Nancy characterizes globalization—then it is through technology or technД“. This sense of the world as existing through technology was manifested in Friday’s appearance through the technology of the World Wide Web (the Wikileaks cable). The significance of this WikiLeaks “cable” was that it contained information disclosing that it was government policy that there should be “no human footprint in the Chagos Archipelago other than on Diego Garcia.”91 The UK officials were cross-examined in relation to this document, and admitted that words to the effect that there would be “no human Page 48 →footprint” were likely to have been said. Officials from the United Kingdom denied that they had used the term “Man Fridays” to refer to the Chagossians. Laura Jeffrey usefully summarizes the significance of the US and UK officials being cross-examined in relation to the cable: Thus, during cross-examination, Pleming QC read paragraph after paragraph from the cable, asking the witness—first Roberts, then Yeadon—if the information therein was consistent with their own recollections of the meeting. In their witness statements and in cross-examination, both witnesses repeatedly sought refuge firstly in the official policy of NCND [neither confirm nor deny] and secondly in their own lack of recollection of the meeting; they both claimed not to have taken their own notes during or after the meeting. When they did comment on the content, they accepted some statements but rejected others: they accepted that it was likely that Roberts had used the evocative phrase “no human footprints,” but they vehemently denied both that Roberts had used the offensive phrase “Man Fridays” and that the ulterior motive was to damage the chances of Chagossian resettlement.92 “No human footprints” invokes the Crusoean fantasy of sovereign solitude. This is what Rousseau also imagined but abandoned when a world where sovereign and people as one could not be conjured. Such a world would indeed have to be without any other “human footprints.” The content of the WikiLeaks cable at least discloses the sense of a sovereign yearning to be enisled without others. Such sovereign solitude would require the annihilation of the other.

The possibility of an enisled sovereign turns on whether any being can “be alone being alone.”93 We have considered the extent to which legal mediation undoes any claim to sovereign solitude. This is not to say that courts have effectively held sovereign violence and excess in check. However, while bowing to sovereign exigency, a phantasmatic savagery was pressed into service to produce the necessary exception and the exception as necessity. In the series of Chagos cases we have observed that “Tarzans” and “Men Fridays”—that is, an irremediable savagery—is indispensable to the production of a Crusoean sovereign phantasy. The island-solitude that the sovereign craves demands “no human footprints.” This vacuity, absence, and emptiness points to a recurrent theme in law’s archive of sovereign violence. The assertion of sovereign solitude and the extent to which courts sustain it through a recurrent Robinsonade point to the role of fictions in archiving sovereign violence. Page 49 →

Sovereign Solitude Derrida opens the first of his final seminars on the Beast and the Sovereign with a meditation on being alone.94 “I am alone.” I am alone in the world. And more ambiguous and terrifying, perhaps, “I am alone with you.” This could be the most beautiful declaration of love, or a protestation at a suffocating and stifling relation. What does it mean to be alone? Who is alone, men or beasts?, Derrida asks. On the one hand the sovereign craves solitude and isolation. The sovereign people assert independence, separation from other peoples. Sovereignty is analogous to an island; being on an island; and perhaps even being an island. We might think of the sovereign as an island. On the other hand there is the essential relation, commonality, being with the other, that is at the heart of the political. As Derrida puts it, “There is no world, there are only islands.” But a relation is implied in this isolation as his reading of a short poem by Celan suggests: “Die Welt ist fort, ich muss dich tragen” [The world is gone, I have to carry you]. As we have seen, the sovereign asserts solitude (being utterly alone) when it asserts its extravagant pretention of plenitude. Nothing would be further from the truth. Law as archive of violence variously supplements, mourns, and attempts to account for the nothingness of sovereignty. NOTHING has also featured in attempts to radically depart from theological accounts of an omnipotent all-knowing sovereign. George Bataille associated unknowing, anticipating NOTHING with a radically negative expression of sovereignty as nonutilitarian, passive, with no program or leader to follow, no territory to defend, no community to define, and no knowledge or regret of the past to hold on to.95 Although this negativity is too easily associated with Nietzschean nihilism, it propels an existential urge to depart from the traditional political theology from which accounts of sovereignty are drawn. Bataille displaces the relationship between anticipation of the future and sovereign will in modern thought.96 Tradition, history, human’s world of things—the objects and archives that ground law and society—needed, in Bataille’s view, to yield to a nothingness.97 To live sovereignly is to live as if death does not matter: “The sovereign is he who is, as if death were not.”98 A rather different nothingness is to be found in Schmitt’s association of sovereignty with the absolute autonomy of the decision. Famously for Schmitt: “Sovereign is he who decides on the exception.”99 From the perspective of an underlying norm, this decision is, Schmitt says, “new and alien”: “Looked at normatively, the decision emanates from nothingness.”100Page 50 → Schmitt is asserting the autonomy of the sovereign here. It is a moment of auto-nomos—literally giving oneself one’s own norm or law. This is in contrast to a theological or politico-theological democratic order where the law is heteronomous.101 A heteronomous law can have multiple sources, and can be from another place or time. If a sovereign decision emanates from nothingness, as Schmitt would have it, what is its validity and legitimacy? What is the relationship between norm and decision? The autonomy of the sovereign decision asserted by Schmitt and others invokes a longer tradition of associating sovereignty with solitude. This sovereign being-alone is a form of mastery that is only possible if one is absolutely alone. Remarking on Rousseau’s reference to Robinson Crusoe in The Social Contract, Derrida observes that sovereign solitude would involve a nostalgic, melancholic, wishful dream that sovereign and people can be at

one.102 The imagination of such a sovereign solitude would involve a world without others: This absolute political sovereignty, “Adam sovereign of the world like Robinson of his Island” [Rousseau], this absolute sovereignty of man over the entire world, i.e. a sovereignty without obstacle and therefore without enemy—and therefore, Schmitt would say, without politics—this sovereignty which is absolute because it is pre-political, the hyperbolical, pre-political or ultrapolitical sovereignty that is the prize of solitude or isolation, of loneliness or of absolute insularity (all of this before Friday), is sovereignty before the nation-state, the sovereignty of the free and selfdetermined, self-determining individual, that of the citizen without a state or of the citizen before citizenship, or again of a citizen who is, all alone and immediately, the state itself, the sovereignty of the state-of-citizen, of the citizen-state.103 This passage ends by invoking the myth of the citizen—the citizen voting who decides as if the voting booth is an island. Neither voting booth nor citizen is an island. Rousseau, and many philosophers after him, would surrender the Crusoean dream of wishing they were “born in a country where the sovereign and the people could have but one and the same interests.”104 Sovereign and people are not one and the same. And so Rousseau will settle for democratic government where everyone is subject to laws. But what of this fantasy of sovereign solitude? Is the sovereign decision so singular that it is above and beyond the reach of law? Is the moment of decision determined and commanded by nothing other than sovereign exigency the epitome of sovereign solitude? Before a norm can have validity, it needs a sphere of operation. Sovereignty and law are often coterminous—but the solitude, singularity, and Page 51 →“nothingness” of the sovereign decision require further attention. The problem concerns the constitution of both the space in which law applies and the political community mediated by it. The ambit of law is often delineated through jurisdiction—a matter we will return to in the next chapter. For now, let’s consider Schmitt’s account of what delimits the space in which law applies, and who is subject to such law. As Schmitt put it: All law is “situational law.” The sovereign produces and guarantees the situation in its totality. He has the monopoly over this last decision. Therein resides the essence of the state’s sovereignty, which must be juridically defined correctly, not as the monopoly to coerce or to rule, but as the monopoly to decide. The exception reveals most clearly the essence of the state’s authority. The decision parts here from the legal norm, and (to formulate it paradoxically) authority proves that to produce law it need not be based on law.105 On one reading, Schmitt appears to be saying that the sovereign is alone at the moment of decision. Apparently nothing mediates the novelty, creativity, and singularity of the sovereign event. On this account, once again, the sovereign is an island. And yet the sovereign decision is in need of an alibi. While the sovereign decision can create its own frame of reference, it never proceeds on the basis that arbitrariness is valid. Sovereignty, like art and fiction, moves by way of a canonical parergon.106 It is framed by an archive that is its point of reference and mode of legitimation. The appearance of a range of figures in judicial decisions drawn from literature, such as Robinson Crusoe and “his Man” Friday, offer insights into law’s archival function vis-Г -vis sovereignty. This chapter has given an account of what sustains and undoes the enisled character of sovereign solitude.107 Despite the attribution of autonomy to the sovereign, who has a monopoly on the decision, I argued that the sovereign cannot be a castaway—cannot “be alone being alone.”108 Sovereignty is haunted (in advance) by the violence of the sovereign event. Law attempts to provide an alibi for sovereignty by inscribing, containing, and explaining its violence. Such legitimation, often resting on reasons of necessity or contingency, fails to sustain or address the legacy of sovereign violence. The enisled sovereign, like Robinson Crusoe on his island, wrestles with the beast as savage other, and the beast that is within himself. Sovereignty seeks the solitude of being enisled,

but that can never be.

Page 52 → Page 53 →

2. Bodies SHAKY FOOTAGE CAPTURED on a mobile phone shows Omid Masoumali standing alone in a clearing. He is on Nauru, a tiny island in the Pacific Ocean. The island first came to prominence in the late 19th century thanks to phosphate-rich bird droppings. The fertilizer this guano yielded fueled the agricultural prowess of Australia in the twentieth century. The tiny island was strip-mined until its environmentally damaging resource had been depleted. The use and exploitation of Pacific islands and their inhabitants continues. The objective now is purportedly about protecting Australia’s “sovereign borders.” Nauru has served as an island-prison in Australia’s immigration control system. The offshore detention regime has been designed to discourage and punish anyone who travels to Australia by boat in order to claim asylum. Omid Masoumali was 23 years old and of Iranian origin. He had been recognized as a refugee by Australia—that is, a person who has a “well-founded fear of persecution” to whom Australia owes obligations of protection under the international Refugee Convention of 1951. Nonetheless, he had been held on Nauru since 2013 with no prospect of being resettled in Australia. “This is how tired we are,” he said. “This action will prove how exhausted we are. I cannot take it any more.”1 With these words Omid Masoumali set himself alight on 27 April 2016. The rudimentary medical facilities on Nauru were not adequate to treat the extensive burns he suffered. Nearly a day passed before he was transferred to a hospital in Brisbane, where he died of his injuries. Nauru has been the site of detention camps to hold boat migrants and refugees that Australia has deemed expendable in its unyielding “Pacific Solution.” In 2001, Australian prime minister John Howard mobilized special forces to seize the Norwegian freighter MV Tampa after it rescued over 400 refugees from a sinking vessel in the Indian Ocean and brought Page 54 →them into Australian waters in the vicinity of Christmas Island. This marked the beginning of the “Pacific Solution” whereby outer islands of Australia are excised from Australian territory for the purpose of migration. The legislation that constructs the fiction that Australian islands are to be regarded as if they are not part of Australia also seeks to limit judicial scrutiny of actions and decisions that apply to persons who arrive there by boat. Refugee claimants arriving by boat at excised territories are detained and transported to harsh offshore camps administered by Australia in countries such as Nauru—a practice stopped in 2008 but reactivated in August 2012 by the Labour government of Julia Gillard. The Australian government has, through contracted private companies and intergovernmental agreements with island nations, coordinated the setting up and running of these camps. It has also run a detention camp on Manus Island, in Papua New Guinea. The placement of bodies on remote and inhospitable islands purports to secure Australia’s sovereign borders. Indeed, Operation Sovereign Borders is a military-led initiative of the Australian Defence Force that commenced in September 2013.2 Australia’s naval and border security forces intercept and turn back boats carrying migrants and refugees toward Australian territorial waters. This “turn back” policy builds on the system of offshore detention camps to which those arriving in Australian waters and islands are transported. “Unauthorized maritime arrivals,” a term used in legislation to describe people who arrive by boat, are subjected to cursory investigations and deportation to their countries of origin. A fiction places Australian islands outside the jurisdiction of Australian courts. The archipelago of offshore camps on Christmas Island, Nauru, and Manus seeks to place boat migrants beyond the reach of the courts and of other forms of scrutiny by the media or community support networks. Masoumali was not the only person to set themselves alight while detained on Nauru. Just a few days after Masoumali’s actions, a Somali refugee, Yasin Hodan, set herself alight. She had been forced back to Nauru following medical treatment at a hospital in Brisbane. These actions reflect the despair of indefinite detention on a remote island. Many detainees have attempted suicide. Rape and sexual abuse of detainees, including children, has proliferated. In 2014 Australia held 800 children in mandatory closed detention, and 186 of these were detained on Nauru.3 The Australian Human Right’s Commission’s The Forgotten Children report found that

“[c]hildren detained indefinitely on Nauru are suffering from extreme levels of physical, emotional, psychological and developmental distress.”4 Page 55 →The discussion in this chapter builds on our consideration of the Indian Ocean as a space of sovereign violence (the Chagos Archipelago), but now moves to consider the refugee’s body as a juridically produced archive of sovereign violence. Boat migrants are variously detained, transported, ejected, and imprisoned for indefinite periods of time. The refugee’s body, captured and enisled, is a border. It is thus a bearer of the inscription of sovereign violence. These enisled bodies are the residue of an anxious form of sovereignty whose contours we will only fully grasp when we consider its origins in the next chapter. For now we will consider how such sovereignty produces effects in the present. Omid Masoumali’s self-immolated body is a form of life that emerges out of the attempt to create a sovereign people in-and-of-themselves, in-and-by-themselves. The refugee’s enisled body is put in the service of producing yet another sovereign solitude. By referring to the body of the refugee I seek to emphasize the material object captured, transported, or expelled in a carceral regime. Treating the body as subject to law, or as citizen of a nation-state, by no means exhausts the juridical status of a life. Indeed, these categories are increasingly superseded or rendered meaningless by sovereign violence. I am therefore distinguishing the body to give it emphasis in a discursive setting where “life” is already a manifestation of varying and contested forms of recognizing or misrecognizing it. The “body” is then treated as the most basic elemental category, albeit one that can take many forms. The abandoned refugee body is the material relic that is the carrier of numerous signs of the sovereign solitude sought by Australia. It is in this sense that the refugee body is an archive of sovereign violence. The reference to bodies as archives of sovereign violence serves several important objectives in this book. While the previous chapter examined the centrality of “sovereign solitude” in creating a “new nomos,” we did not have the scope to discuss the relationship between territorial space, jurisdiction, and bodies placed within or beyond the law. Bodies are localized in space as a means of determining the extent to which they will be mediated by law. This localization functions through modes of signifying the body and the distribution of bodies in space. We will thus consider the signs attributed to refugee bodies. While attention has been given to jurisdiction as a spatial and territorial phenomenon in several studies, we need to explore the impact of this spatialization of law on those subjected to various techniques of sovereign power. There has been a proliferation of attempts to grapple with the contemporary excesses of sovereign power with reference to “forms of life.” At least in some versions of these accounts (which we will examine at length Page 56 →in this chapter), the sign and materiality of the body has been the terrain of theoretical contestation. This chapter thus engages with the trope of “forms of life” in political theory. Abandoned being (Jean-Luc Nancy), bare life (Giorgio Agamben), precarious, vulnerable, and grievable life (Judith Butler), and creaturely life (Eric Santner) have been deployed as modes of discerning the encounter between sovereign power and political subjects.5 Here we can discern the more submerged work of metaphor. Alienated life is characterized “asВ .В .В .”: abandoned, bare, precarious, vulnerable, grievable, creaturely, and so on. Each of these accounts of a form of life functions as an archive of sovereign violence. This figure (form of life) is sometimes, but not by any means in all cases, taken out of history and placed beyond the context in which she emerges. Agamben’s “bare life” typifies this move—a figure who is rendered at once transhistorical and emerges in a particular conjunction of law, race, and biopolitical violence. Beyond citizens and subjects, thinking about “forms of life” purports to create new archives of the residue and “waste” of sovereign violence. This chapter examines what is at stake in the process of archiving “forms of life.”

A New Nomos The nation-state is growing fearful. Its citizens are provoked to be frightened of migrant “invasions.” This is happening at a time when, by all indicators, Western nation-states are among the most secure and wealthy places on the planet. Governing by crisis, the nation-state asserts the vulnerability of its sovereignty and seeks solitude. The response has been the creation of a “new nomos” offshore.6 This new nomos can be seen unfolding in the excision of Indian Ocean islands from Australia’s migration zone and the creation of

offshore internment camps for refugees. A “form of life” manifested in the figure of the boat migrant or refugee is a sign of the crisis of sovereignty. The refugee as a sign of a crisis of sovereignty begs a further question: What would it mean for the refugee’s body to be a sign of itself? Before we can address this, it would be useful to examine an exemplary instance of the relation between displaced bodies, sovereignty, and the new nomos offshore. The Migration Amendment (Unauthorised Maritime Arrivals) Act 2013 implemented Australia’s Pacific Solution, the policy dating back to 2001, throughout Australia. What was a territorial exception in relation to small islands became the norm in relation to the island-continent. “Offshore” is no longer, then, a far-off place. A new category of “unauthorised maritime arrivals” created a group of migrants determined by their mode of travel to Page 57 →Australia. A range of amendments to Australia’s Migration Act 1958 had already created categories of persons variously referred to as “unlawful non-citizens” or “offshore entry persons.” The Australian territory of Christmas Island was deemed an “excised offshore place” by section 5 of the Migration Act (as amended, section 5 (1)). The Australian courts had their jurisdiction eroded in relation to these persons and places offshore.7 An “unlawful non-citizen” entering Australia at an “excised offshore place” cannot make a valid application for a protection visa, is mandatorily placed in detention, and, other than in some exceptional circumstances, is deported from Australia (thus flouting Australia’s international obligations under the Refugee Convention 1951). Under the Excision Act 2001 an “offshore entry person” can only make an application for refugee status if the minister for immigration decides that it is in the public interest to let the applicant do so. This has meant that there are a range of inquiries and decisions along the way that are not subject to judicial review. Mandatory detention of men, women, and children often continues for years while applications to determine whether courts have jurisdiction are contested. In 2015 a Bangladeshi woman (referred to as applicant “M68”) arrived by boat on Christmas Island—an Australian island in the Indian Ocean—where she was detained and transported to Nauru. She challenged the validity of her detention in the High Court of Australia.8 M68 had not had a claim for refugee status processed by Australia on her arrival. Instead, she was transported to Nauru, and a Regional Processing Centre visa was granted to her notwithstanding the fact she had no desire to seek a visa or refugee status in Nauru.9 The woman, now bearing the sign M68, argued that the Australian executive had caused and brought about her detention.10 On the Australian government’s own account, it had caused her to be removed from the control of Australia. Her detention on Nauru, M68 argued, was a punitive measure. Under the Australian Constitution the power to detain for punitive purposes can only be exercised by the judiciary. Australia sought to distance itself from the “processing” of “maritime arrivals” in Nauru on the basis of an elaborate fiction: that Australia did not control the detention of persons in Nauru. That was a matter purportedly in the power of the government of Nauru. The majority of the High Court of Australia accepted that argument: The plaintiff contends that her detention on Nauru was “funded, authorised, caused, procured and effectively controlled by, and was at the will of, the Commonwealth [of Australia].” She relies upon the statement in Lim that an officer of the Commonwealth Executive who “purports to authorizePage 58 → or enforce the detention in custody ofВ .В .В . an alien” without judicial mandate will be acting lawfully only to the extent that their conduct is justified by a valid statutory provision.11 The High Court in Lim had held that the government’s executive power to detain could only be for the limited purpose of processing an application for refugee status as authorized by statute. In M68, the majority reaffirmed this principle, but accepted the as if—a perverse fiction that it was Nauru and not Australia that was now engaged in the detention of the plaintiff: Clearly the Commonwealth [of Australia] sought the assistance of Nauru with respect to the processing of claims by persons such as the plaintiff. It may be accepted that the Commonwealth [of Australia] was aware that Nauru required the plaintiff to be detained. In order to obtain Nauru’s

agreement to receive the plaintiff, the Commonwealth [of Australia] funded the Centre and the services provided there in accordance with the Administrative Arrangements. The Commonwealth [of Australia] concedes the causal connection between its conduct and the plaintiff’s detention. It may be accepted that its involvement was materially supportive, if not a necessary condition, of Nauru’s physical capacity to detain the plaintiff. But, for the reasons given above, it cannot be said that the Commonwealth [of Australia] thereby authorized or controlled the plaintiff’s detention in the sense discussed in Lim. That is sufficient to remove the basis for the plaintiff’s reliance upon what was said in that case.12

An interstate agreement between sovereigns has orchestrated a carceral fiction. Nauru, a relatively poor Pacific island nation to which Australia forcibly transports boat migrants, is held to be the operative agent detaining M68. Even that detention is obfuscated by the fact that after the commencement of proceedings in this case, the government of Nauru threw open the gates of the detention center. Detainees can now roam “freely” on the small island—a vexed “freedom” in a context where women and children are regularly subject to sexual assaults. The boat migrant’s body has become the site of sovereign exchange and dis-attribution: M68 is “detained” by Nauru, but the incidence of such detention is brought into being by the Australian government. Her body is an archive of a new nomos offshore. For Ernst Kantorowicz the sovereign has two bodies—a finite natural body, and a political body with perpetual life.13 In relation to boat migrants detained on Nauru, there are two sovereigns acting upon and through a Page 59 →single subjected body. M68 is resignified and localized offshore. She is enisled on Nauru against her will by the actions of the Australian government, which then asserts that she is no longer in their control. This movement of bodies from sovereign to sovereign casts her out. However, exclusion is also an inclusion in a carceral economy. The migrant body, distributed across islands, cannot then be seen or heard as a subject who demands recognition of her status as a refugee by Australia. As a terrain of sovereign contestation, her body is resignified, re-signed, and reassigned. Before examining the regimes for signifying bodies as forms of life, let’s consider the vicissitudes of carceral emplacement in more detail. What is a carceral “place”? The question might be seen as a variation of what is at stake in the writ of habeas corpus. With that ancient power exercised by judges to demand the production of a detained body before a court, the law can be seen to mediate incarceration. The body of the prisoner is produced in court so it may be identified, and the conditions and reasons for detention established. In Australia’s new nomos offshore, bodies circulate across territories in ways that enable the state to deny they have caused the detention (as we saw in the case of M68). There is then no responsibility to produce the body, to account for the conditions of detention, or justify the reasons for it. The migrant body inhabits a border—indeed, it becomes the border. The capacity to effect the movement and placement of bodies offshore becomes the ultimate expression of sovereign authority. The body placed offshore is then as significant as raising a flag to mark the edge of your territory. The body signifies the border. The body as border may be enisled and mobile at the same time. In regimes of legal signification of place, courts are reduced to determining the scope of an indefinite article (what is “a place”?) in deciding the extent of bodily mobility in sovereign hands. The scope of a carceral place might then be addressed by asking what it means for a body to be enisled. Is a boat sailing the high seas an island? Is it “a place” and what kind of place is it? These questions were at the heart of an Australian case, CPCF v Minister for Immigration and Border Protection, involving the apprehension, detention, expulsion, and transportation of 157 passengers in an Indian flagged vessel intercepted by an Australian border protection vessel.14 Section 72 (4) of the Maritime Powers Act of 2013 (Australia) conferred powers on “maritime officers” to detain persons and take them “(a) to a place in the migration zone; or (b) to a place outside the migration zone, including a place outside Australia.” The Indian vessel had become unseaworthy en route to the Australian territory of Christmas Island. On 29 June 2014, the passengers were taken on board the Australian vessel while in Australia’sPage 60 → contiguous zone (extending up to 24 nautical miles beyond the territorial waters of a state). On the direction of the National Security Committee of the Australian cabinet, the Australian vessel began sailing toward India. The detained

passengers were not made aware of their destination. Australia was implementing its controversial policy of “turning back the boats”—intercepting and forcibly removing boat migrants who are traveling to Australia with the intention of migration or seeking asylum. The plaintiff, a Sri Lankan national of Tamil ethnic origin, claimed that Australia was bound by the principle of nonrefoulement under Article 33 of the Refugee Convention, and similar obligations under the Convention against Torture and Other Cruel and Inhuman or Degrading Treatment or Punishment, as well as limits on the use of executive power under the Australian Constitution. The majority of the High Court of Australia found in favor of the Australian government’s actions. The dissenting judges usefully pointed out that the plaintiff could only be removed to a place that “at the time the destination is chosen, the person has the right or permission to enter” (per Justices Hayne and Bell, para. 104). As a Sri Lankan national, the plaintiff had no right to reenter India although they had departed from there. Moreover, when the Australian vessel sailed in the direction of India, and then anchored on the high seas while diplomatic negotiations unfolded, it was not clear what the outcome or the ultimate destination of the vessel would be. Construing the powers granted by section 72 (4) more narrowly, Justice Kiefel (dissenting) pointed out that the power was to expel a person, and it “would not be consistent with that limited purpose for a person to be taken on a voyage of the high seas when the length of the person’s detention was unknown” (para. 321). She also construed the provision as requiring a person to be taken to “a вЂplace’ in or outside Australia” (para. 317). “A place” implies specificity. It cannot mean any undetermined place. This is the narrow jurisdictional corner to which Australian judges have been consigned. Even at her most beneficent, the judge is reduced to saying “you must expel to a specific place.” This brings us back to the problem of the modes of representing the boat migrants and their captors on the islands excised from Australia. Australia refuses the visibility of the boat migrant. They are not visible for the purposes of migration or refugee status. The entire continent is excised for the purposes of arrival, or as a place of sovereign seeing. Sovereignty partly involves this “visive power”—one that Australia only exercises with a view to expelling the refugee.15 It is the action of an all-knowing sovereign who knows in advance, who claims absolute knowledge about the queue-jumping refugee who wants to gain an “unfair advantage.” Australia has Page 61 →established a respatialization of sovereignty, a new nomos. On Nauru, Manus Island, and boats intercepted and turned back at sea we observe a sovereign distribution and mobilization of bodies. This body is a sign of a state’s aspiration for sovereign solitude. The refugee body is also a sign of its abandonment. In this sense the body is an archive of sovereign violence. To return to the question posed above, what would it mean for the refugee body to be a sign of itself, and what is at stake in that signification?

Refugee as Sign “In the first place,” Hannah Arendt wrote in 1943, “we don’t like to be called вЂrefugees.’”16 She had escaped Germany, survived the French internment camp in Gurs, and was living in the United States. For Arendt, “there is not and never was any club founded by Hitler-persecuted people whose name indicated that its members were refugees” (110). The concept of a refugee was already out of time: “We ourselves call each other вЂnewcomers’ or вЂimmigrants,’” she asserted. Arendt was writing before the adoption of the 1951 Refugee Convention definition of refugees as persons with a “wellfounded fear of being persecuted.” A fearful person in need of a state’s benevolence and protection was far from what Arendt had in mind when she reflected on the people who had lost homes, friends, occupations, and languages. Informed by her narrow sense of the political, a refugee was a person who sought refuge because of some act they had done or radical political opinion they held. They had acted in the world—a key feature of being political for Arendt. Their actions had exposed them to threats and dangers from which they had to flee and seek refuge. But the meaning of refugee was changing. People fleeing Europe during World War II were not “political” in the sense Arendt valorized: “We committed no acts and most of us never dreamt of having any radical opinion.” The “refugee” was becoming the person “so unfortunate as to arrive in a new country without means and have to be helped by Refugee Committees” (110). Arendt’s defiance continues to resonate in a contemporary world replete with so-called refugee crises. For

instance, in the summer of 2015 European nation-states, where internal movement had become a characteristic and condition of economic, political, and cultural union, began to re-erect border controls to block the movement of people who had entered Europe via the Mediterranean. The US-Mexico border is heavily securitized with walls and fences to prevent the entry of migrants.17 And Australia has become a harbinger of the most extreme forms of militarized control to exclude “unlawful non-citizens” by excising islands from its territory and Page 62 →creating internment camps in neighboring countries to detain those who arrive by sea. The refugee crisis points to the nation-state as vulnerable. It also raises the question of the nature of a political community and its relationship to its others. On several accounts, these developments point, paradoxically, to a decline of the nationstate. Arendt, Agamben, and Wendy Brown have all made this argument. The paradox lies in the refugee (the archetypal vulnerable being) becoming a “form of life” that serves as an archive of the sovereign state’s vulnerability. Arendt’s 1943 polemic was vastly expanded in her later study of stateless persons between World War I and World War II. In The Origins of Totalitarianism she examined the post–World War I peace treaties that had made a mockery of a system of nation-states, and exposed the paradoxes of inalienable human rights tied to nationality and natality.18 The juridically significant relationship between a citizen’s place of birth, their rights, and the nation-state fell apart. The post–World War I redrawing of the map of Europe created vast populations of national minorities whose safety and security within the nation-states depended on Minority Treaties (269–76). There were also populations who had become “undeportable”—people who were stateless because “there was no country on earth in which they enjoyed the right to residence” (276). Arendt observed that sovereignty is nowhere “more absolute” than when it concerns “emigration, naturalization, nationality, and expulsion” (278). All this led her to conclude that the key paradox of modern politics is the rise of the “inalienable” character of human rights proclaimed by well-meaning idealists when the reality was that these rights were only enjoyed by the “citizens” of “prosperous and civilized countries” (279). For the displaced person, the internment camp had become not the exception but the norm. The French Revolution and its Declaration of the Rights of Man and Citizen had purportedly marked the emergence of a Man emancipated from nature, God, and social position. Henceforth Man himself would be the source of rights: “Man appeared as the only sovereign in matters of law as the people were proclaimed the only sovereign in matters of government” (291). A circularity united Man and people—for the people’s sovereignty was divorced from prince and God and also rested on Man. This led to the “inalienable rights of man” being tied to the peoples’ right of sovereign self-government: “man had hardly appeared [В .В .В .В ] when he disappeared again into a member of a people” (291). A “form of life” had emerged: the universal rights-bearing “Man.” But it was a life whose fate would be inextricably linked to the sovereignty of the nation-state and its Page 63 →people. To be excluded from the “people” was to be excluded from the “rights of man.” The situation remains the same today. For Arendt the political equality of humans could only arise from membership in a political community or collective. The public sphere of action and opinion was the site of a mutual recognition of political beings. Once a human lost such a place in a community, they would have to fall back on their “mere existence” as human (301). The “single, unique, unchangeable” qualities of our mere existence can be recognized by the “unpredictable hazards” of friendship, pity, or love—where, as St Augustine said, “Volo ut sis” (I want you to be) (301). But this is not the sphere of justice: “We are not born equal; we become equal as members of a group on the strength of our decision to guarantee ourselves mutually equal rights” (301). This was yet another deployment of Arendt’s attachment to the classical Greek division between private and public life. The private sphere of necessity was opposed to the public sphere of action, opinion, and mutuality of citizens. As both Agamben and Jacques RanciГЁre have elaborated, the classical Greek opposition between zoД“ (biological or physiological life) and bios (a form of political life) was at the heart of Arendt’s critique of the rights of man as a collapsing of bios into zoД“.19 With the figure of the refugee, natality (birth) and nationality (citizenship) no longer act to mediate the political status of being. The refugee becomes a form of life where fact and law, necessity and right, become indistinguishable: “The flow of refugees in the twentieth century would

have split up that identity and made the nakedness of bare life, stripped of the veil of nationality, appear as the secret of the Rights of Man” (300). As RanciГЁre puts it, Arendt’s analysis of the Rights of Man leads to a void or a tautology. Human rights are either asserted as the rights of those who have no rights—in which case they are a hollow assertion, a void—or they are the rights of citizens of states where rights are enforceable, the “rights of those who have rights,” in which case they are a tautology (302). RanciГЁre sets out to break this bind by suggesting a third possibility: “The Rights of Man are the rights of those who have not the rights that they have and have the rights that they have not” (302). This tortuous formulation is explained through the actions of a woman during the French Revolution, Olympe de Gouges, who famously asserted that if women can be condemned to the scaffold they are entitled to be elected to the National Assembly (303). RanciГЁre’s point is that the right to equality, although not substantively enjoyed by subjects or citizens, can frame a political dispute about the difference between one being and another.20 Even when the Page 64 →political assertion cannot be heard, it can be enacted as a “wrong” (304). This wrong is the event of “dissensus”: not just a conflict of “interests, opinions or values” but a “dispute about what is given, about the frame within which we see something as given” (304). There is an element of the “as if” in RanciГЁre’s claim that “subjects have the rights that they have not.” On this account, the subject denied a right is not in a void, but should proceed as if they have the right; as if life can be mediated by the right that has been denied to them. By extension we might say that the refugee should cross borders before their status is determined as if they have a right to do so. This enacts what RanciГЁre has elaborated as the performativity of the assertion of rights. Dissensus enables disputing what is given. As with the example of Olympe de Gouges, women could dispute the rights that they are denied, but also assert that they have the rights that they are being denied. For RanciГЁre this acting as if is world-forming—putting two worlds (or a contradiction embodied therein) in one world (304). Politics involves staging, by naming, such a dissensus. There is then no need for a particular, nationally situated, subject of the Rights of Man. Politics is the movement between the first inscription of a right and the “dissensual stage on which it is put to test” (305). Such rights can then belong to the refugee or the populations in camps because they can invoke them to “construct a dissensus,” to confront the denial of rights (305–6). Human rights become, with RanciГЁre drawing on Jean-FranГ§ois Lyotard, “the rights of the other.”21 The essence of this involves rethinking rights by rethinking the “Wrong” (307). Lyotard’s conceptualization of what he calls the “Inhuman” is one way to extend this further and consider an absolute and “infinite wrong.” There are situations of acute human suffering that can be called inhuman; but these might be the consequence of another “Inhuman”—a “good” Inhuman: that is, “Otherness as such” (308). Otherness as such is what we do not control: birth, infancy, the unconscious, Law, and what might be called God. It is an “irreducible otherness” (308). Absolute evil or the infinite wrong is a denial of that otherness. We must both “announce” this other, and recognize our incapacity for announcing it. All that is possible is “resistance,” being faithful to the “law of otherness,” and ruling out “any dream of human emancipation” (308). Dissensus, staging the wrong, and disputing what is given finally gives over to the other: a wholly inaccessible other! Australia’s sovereign border protection measures are wrought upon the body of the refugee. A claim made as “refugee” no longer serves as a sign adequate to the task of invoking mediation through a regime of rights. Arendt’s account of the efficacy of human rights as contingent on being a Page 65 →citizen of a nation-state willing and able to enforce them is certainly borne out in the experience of refugees. In one sense these are people who do indeed act as if they have the right of movement and resettlement. Their bodies are the archives of sovereign limits, and the extremes of neglect and cruelty. But staging dissensus as RanciГЁre has suggested hardly offers relief to the migrant at sea or in camps, as we have seen. The act of defying such limits stages the wrong, and brings Otherness as such into view. It is an archival gesture. Here the refugee body serves as archive of its own Otherness. We should now consider the scope for moving beyond staging the wrong or dissensus. A significant contribution to distinguishing the range of possibilities for addressing the sovereign conditions that produce the abject body has been thought with reference to a “form of life.” What is at stake in

characterizing the refugee’s body as a “form of life”? In what sense is the refugee-body a sign that serves an archival function as a form of life?

Form of Life as Archive We observed a range of terms such as “unauthorized maritime arrival,” “unlawful non-citizen,” and “offshore entry person” deployed in Australian migration law. These signifiers mark out the refugee body as outlaw. The legislative terms indicate new spatialities and temporalities in carceral practice. Bodies are moved, enisled, and subjected to indefinite detention. They become carriers of the memory of a sovereign encounter. Contemporary political theory accounts for the substance of this encounter through the form of life that is regarded as emerging from it. The form of life is thus a bio-graphy—both a story of a life determined by sovereign constraint and a sign of that life. Is any designation of a form of life adequate to the task of being the sign of what it signifies? Can a body be a sign of itself, and what are the limits of such signification? The signifier of a form of life indicates the extent to which it is regarded as part of a political community. Such forms of life are characterized through distinctions such as human/animal, citizen/subject, migrant/refugee. Agamben’s elaboration of homo sacer or bare life served as an important point of departure for contemporary articulations of this relationship between law and life. While much that is critical can be said about the veracity of an abject life’s purported “bareness,” these juridical and philosophical discussions signal a turn to the category of a “form of life” as central to the theoretical optics of recognition. It would thus be useful to first set out the wider political context in which reference to “form of life” emerged. Page 66 →Conflict and antagonism in a range of political landscapes—postcommunist, postcolonial, and postconflict—were characterized as a problem of the political as such. The intellectual currents that informed attention on the political include Arendt’s work on plurality and concern to distinguish various modes of productive and political life; the left’s revival of Schmittian decisionism and the friend/enemy distinction as a useful critique of liberalism and deliberative democracy; and a largely poststructural tendency to imagine “community” beyond communitarian essences after the totalitarian excesses of fascism and communism. The “political” became a key focus of democratic theory at a moment when the autonomous liberal subject had been rendered illusory by social and political movements such as postcolonialism, feminism, and critical race studies. Power also ceased to be treated as the overdetermining action of a centralized sovereign or the state. Foucault explained how power was at once constituted and resisted within the body of the subject. The subject came to be regarded as individuated through biopolitical modes of power. The concept of the “political” emerged in this context as the space in which a variety of sovereign antagonisms would be played out. Sovereign power has been characterized as constituting itself through the production of forms of life (e.g., bare life, biopolitical life, precarious life). The constitution of a sovereign border through a form of life is mediated by law—whether that be by legislative script or political neglect. Agamben’s thought attempted to bring together Foucault’s theorization of subjection, Schmitt’s thought on sovereignty, and Arendt’s critique of rights and examination of the conditions of totalitarianism. According to Agamben, Foucault’s attempts to de-emphasize the questions “what legitimates power?” and “what is the state?” removed the theoretical privileging of sovereignty but failed to explain the point of intersection between “techniques of individualization” and “totalizing procedures.”22 Agamben’s characterization of the inclusion /exclusion of “abandoned being” or “bare life” from the political and juridical order did much to complicate the relationship between politicized life and sovereignty. We were thus left with the concept of the “political” as the central site where life was regarded as either mediated or unmediated by profane or divine law. A life mediated by law is one sign of inclusion in a political community. Indeed, this is fundamentally what is at stake for life in the new nomos offshore. Migrants in detention camps seek a life mediated by law: but a law that is capable of recognizing their vulnerability and precarity while providing the conditions for sustaining a fulfilling life. What they have encountered is a highly circumscribed jurisdictional divide between executive (sovereign)Page 67 → and judicial power whereby their bodies can be moved across vast distances to produce an

enisled life they cannot bear. What scope is there for thinking a more liberated form of life as a “form of life”? To put it another way, what is the potentiality in thinking life through its forms? If all normative orders are created through an exclusion of a form of life from the relevant political community, then the task of critique and politics is to identify and respond to this constitutive abandonment of being. The response to excesses of sovereign power has seen political and ethical demands made on the basis of charting the conditions of inclusion/exclusion from a realm of plural existence. While some are content to deploy arguments for the strategic use of rights or a demand for the relevant kind of enfranchisement or recognition, at the heart of the treatment of the political as an ontological category is the realization that “abandonment” and not some utopian notion of plurality is its fundamental condition. However, the realization that creating an abandoned being is the originary act of sovereignty leaves little by way of a political program that can sustain an escape from the creation of an abject form of life as the fundamental condition of a juridical and political order. The alternatives have been obscure. Famously, by way of a new political horizon, Agamben left us waiting, at the end of his book Homo Sacer, for the beautiful day of zoД“ to arrive: zoД“ would need to become a form of life “wholly exhausted in bare life and a bios that is only its own zoД“.”23 This new politics would require a shift, for Agamben, from “form of life” to “form-of-life.” The distinction Agamben draws between “form of life” and “form-of-life” is key to his thinking on the relation between sovereignty, law, and politics. The former denotes the ostensible facts of human life that are often expressed through the separation of “naked life” (nuda vita or “bare life”) from the various forms in which it is represented or identified—usually citizen or subject.24 It is this separation that is manifested in an abstract signification that Agamben seeks to avoid. The abstract recodification of life can be seen in a litany of social and juridical categories such as “voter, worker, journalist, student, HIV positive, transvestite, porn star, elderly, parent, woman,” and so on.25 It is not that these categories are abstract as such. It is rather that political form and naked life are separated in the structure of representation of such categories. A “form of life” is then a human life mediated by politics and political orders. Such a “form of life” is politicized by submitting itself to a sovereign (as in the Hobbesian compact), or by being forcibly assimilated in states of exception or biopolitical modes of power. The “refugee,” recognized as such or abandoned in a camp, is one such “form of life.” Page 68 →What Agamben is expressing through the notion “form-of-life,” on the other hand, is not simply facts of existence but the possibilities of life. Gesturing toward a “nonstatist politics,” “form-of-life” is “a life for which living itself would be at stake in its own living.”26 As Agamben goes on to explain: Only if I am not always already and solely enacted, but rather delivered to a possibility and a power, only if living and intending and apprehending themselves are at stake each time in what I live and intend and apprehend—only if, in other words, there is thought—only then can a form of life become, in its own factness and thingness, form-of-life, in which it is never possible to isolate something like naked life.27 (original emphasis) “Form-of-life” and “naked life” would not be distinguishable. This is what Agamben has in mind, when, in the closing stages of Homo Sacer he gestures toward a shift in conceptual paradigm that would lead to “the constitution and installation of a form of life that is wholly exhausted in bare life and a bios that is only its own zoД“.”28 In the passage cited above Agamben refers to a “thought” that would be a precursor to a “form-oflife.” In relation to “thought,” Agamben says: Thought is form-of-life, life that cannot be segregated from its form; and anywhere the intimacy of this inseparable life appears, in the materiality of corporeal processes and of habitual ways of life no less than in theory, there and only there is there thought. And it is this thought, this form-of-life, that abandoning naked life to “Man” and to the “Citizen,” who clothe it temporarily and represent it with their “rights,” must become the guiding concept and the unitary centre of the

coming politics.29

The kind of “thought” that is at stake here is always a “common” thought. Agamben does not intend this commonality in any communitarian way. Rather, it is the commonality that is inherent to the communicability of language: “communication not of something in common but of communicability itself.”30 The instance at which the potentiality of signification passes into the actuality of a signifier as the re-presentation of a “thing itself” becomes an instance of the openness and possibility that only exists in and through language: “The thing itself is not a thing; it is the very sayability, the very openness at issue in language, which, in language, we always presuppose and forget, perhaps because it is at bottom its own Page 69 →oblivion and abandonment.”31 Language is the presupposition of all appearance, institution, and tradition: The presuppositional structure of language is the very structure of tradition; we presuppose, pass on, and thereby—according to the double sense of the word traditio—betray the thing itself in language, so that language can speak about something (kata tinos). The effacement of the thing itself is the sole foundation on which it is possible for something like a tradition to be constituted.32 The constitution of the political, “people,” “we civilised people who respect human rights,” is the becoming actual of a potentiality that at bottom presupposes language. What is expressed about “form-oflife” through commonality, thought, and communication is potentiality. The Aristotelian conception of potentiality and actuality presents the aporia of the “presence of absence.”33 Aristotle articulated this problematic in De anima as the question of why there is no “sensation of the senses themselves”; “in the absence of external objects, the senses do not give any sensation, although they contain fire, earth, water, and the other elements of which there is sensation.”34 Bearing in mind the unsustainable dichotomy between anima/animus, what animates the “potential” of the senses is the coming into contact with the principle of its own animation, its becoming or its passing into actuality. Although we know that sensation is the actualization of the potential of the senses, the senses exist “in the absence of sensation.”35 Agamben reposes this opposition of potentiality/actuality as the distinction between potentiality/impotentiality. Impotentiality is potentiality (the capacity to be something else) experienced as its own capacity to not be. Impotentiality is potentiality at the point of its privation. All potentiality must also be impotentiality. Potentiality must be experienced as the capacity to not be, to be its own lack. As Agamben puts it, the kind of potentiality that interests Aristotle is not the generic potential of a child to acquire knowledge. This is the potential to “suffer an alteration.”36 The “potential” that does interest Aristotle, however, is the condition of already having something as a capacity, but then not bringing it to actuality. This is the capacity for a potentiality to maintain itself in its own privation.37 The implications of this latter type of potentiality for a study of being, subject, or form of life are considerable. There are multiple figures and visions of politics that Agamben invokes Page 70 →through the notion of impotentiality. “Whatever being,” a figure that is developed in The Coming Community, and Herman Melville’s scrivener in “Bartleby” are among the key ones.38 Distinguishing potentiality from “will,” and impotentiality from “necessity,” Agamben argues that Bartleby’s response, “I would prefer not to,” to a request from the man of the law, leaves the former dwelling obstinately in the “abyss of potentiality” without any intention of leaving it.39 This refusal or withdrawal is a repudiation of sovereignty and violence as a means. However, refusal and withdrawal is hardly what is possible for the refugee. In what other ways might recourse to a “form of life” enable possibilities other than an abyssal destruction as in the actions of Omid Masoumali? Sign, form, and the substance of bodies are all in play when examining how sovereign violence is mediated through legal categories. But before we get to that, it would be useful to consider other recent interventions concerning the relationship between the sign and substance of life. For Judith Butler recourse to a “form of

life” is a means of recognizing the body as having a social ontology that renders it “precarious.” The body is exposed to “social crafting and form,” and that is what makes the ontology of the body a social one.40 Butler attempts to orient an ethical and political response to differential distributions of precarity by encouraging new alliances that cut across existing communities or identities: Precarity cuts across identity categories as well as multicultural maps, thus forming the basis for an alliance focused on opposition to state violence and its capacity to produce, exploit, and distribute precarity for the purposes of profit and territorial defense. Such an alliance would not require agreement on all questions of desire or belief or self-identification. It would be a movement sheltering certain kinds of ongoing antagonisms among its participants, valuing such persistent and animating differences as the sign and substance of a radical democratic politics.41 In Butler’s account the body is crafted and given form by social relations. Sustaining opposition to state violence despite political differences and antagonisms is important. However, my focus is on the related but distinct concern with the “form” and “sign” of the body in these political and juridical discussions. Butler does of course address schemas of representation. In Precarious Life she discusses the “face” of the other in Levinasian terms, suggesting that neither “image” nor “personification” can capture the human subject.42 Instead, we must proceed with an understanding of how “schemas of intelligibility” efface certain lives and their deaths.43 This Page 71 →effacement can take place either through occlusion or by modes of representation.44 What is at stake in the “sign” of the body is the mode of intelligibility and structures of representation that contribute to exposing certain bodies to precarity. How is precarity made intelligible? Addressing this question is one reason for paying sustained attention to the “sign” of the body in “forms of life” deployed in archiving sovereign violence. One condition of precarity is that structures of representation in a political community have failed to be adequate to the task of recognizing and protecting precarious life. This is partly a problem of making precarity intelligible without collapsing into the already divisive modes of identity politics, or the very limited human rights discourse examined above. One possibility might be that reflecting on the difficulty accessing our own precarity might help to realize what is involved in accessing the precariousness of the stranger. It might be retorted that there is no shortage of self-centered enterprises to care for the self. More focus on the self, it might be said, will not generate access to the precarity of the other. What may be helpful, however, is to reflect on how our own experience of self involves forms of estrangement. That is, grasping how we are strangers to ourselves would provide a way of structuring knowledge about the strangeness of the neighbor. It is a line of inquiry that pushes at the question of how “life” is represented. These concerns have been taken up, albeit in different registers, in the work of Eric Santner and Catherine Malabou. Santner characterized the oeuvre of the German writer W. G. Sebald as an “archive of creaturely life.”45 Santner’s formulation of the notion of “creaturely life” elegantly draws together elements of eros and thanatos, love and death, that circulate in relations with the other as neighbor. It also invokes yet another “form of life”—and is thus evidence of the growing tendency to conceptualize the relation of self/other in these terms. Drawing on Franz Rosenzweig’s Star of Redemption, which elaborated the challenges of neighbor-love when faced with a split subject whose desires, fantasies, and other qualities are never transparent to themselves—and combining it with Freud’s notion of the uncanny—Santner delves into what makes the other strange to herself. Rosenzweig had promoted a kind of solidarity with the other that would respond to a “creaturely expressivity that makes the other strange not only to me but also to him- or herself.”46 This “internal alterity” as a means of understanding the “neighbor” and the “stranger” helps to displace the sense of the other that is usually cast in terms of her spatial exteriority.47 The other is not only external to me. It is not only spatial separateness that matters. Santner is interested in developing a way of being attuned to the “too much of pressure” generated by the Page 72 →“uncanny presence of my neighbor.” He suggests that we are not sufficiently open to how, in our everyday life, this pressure generated by the uncanny is in the “midst of life.”48 In Santner’s work accessing life beyond its abstract forms of mediation and representation would involve being open to the splits within the subject rather that what is readily apparent in the other as a “spatial” exteriority. The other’s internal split takes place at the level of the

unconscious, albeit with palpable manifestations in everyday life. More recently Malabou has suggested that sovereignty is not fully deconstructed until the symbolic register of representing “life” is fully materialized. This new materialist thinking asserts that the “structural meaning of the empirical [body]” can be found “within the empirical itself.”49 The symbolic, then, no longer needs to serve as supplement, surplus, or excess of the real. The real empirical body (or at least its neurons) can respond to the environment or traumatic events without abstract mediation. This is worth exploring for my purposes as Malabou also gestures toward life being a sign of itself. Malabou develops her arguments on the material body with reference to Foucault, Derrida, and Agamben. She impugns each of them for failing to adequately deconstruct sovereignty. The problem for her lies in the persistence of a symbolic structural element that determines, situates, or sustains the material or empirical element. Malabou’s argument sits among an influential vein of “new-materialist” thinking. She seeks to explain what a “real” deconstruction of sovereignty would look like. Malabou makes much of references to “more” or “less” materiality when confronting the hitherto failed attempts at deconstructing sovereignty. Foucault’s characterization of his task in The History of Sexuality as providing a “history of bodies” that seeks the “most material and most vital” leads Malabou to suggest that this means there must be a “less material and less vital” aspect of bodies (38–39).50 Can there be a material body outside the symbolic body, she asks? Agamben’s assertion that “bare life” is not confined to a particular place or category but now dwells “in the biological body of every living being,” Malabou suggests, means that “bare life is not reducible to the biological.” Bare life must then be something “more than” the material, biological body (39). Derrida, in his essay “Faith and Knowledge,” had been explicit about the value of life consisting in the quality of something “more than life.” Life is sacred, holy, infinitely respectable only in the name of what is worth more than it and what is not restricted to the naturalness of the bio-zoological Page 73 →(sacrificeable)—although true sacrifice ought to sacrifice not only “natural” life, called “animal” or “biological”; but also that which is worth more than so-called natural life. Thus, respect of life in the discourses of religion as such concerns “human life” only in so far as it bears witness, in some manner, to the infinite transcendence of that which is worth more than it (divinity, the sacrosanctness of the law).51 As with Kant, life has “dignity,” and is an end in itself, because it is more than bio-zoological life. As with the “religiosity of religion,” or the communicability of language, the “dignity of life can only subsist beyond the present living being” (87). But it is worth emphasizing that this discussion of the value of life takes place in the context of an exploration of religion and the multiple ways in which life is sacred or sacrificial. The essential plurality or dignity having to subsist beyond the living being is one aspect of the infinite transcendence that sustains the valuing of (human) life. However, this needs to be reconciled with Derrida’s account of the other as “wholly other.” For Malabou these statements by Foucault, Agamben, and Derrida demonstrate that deconstruction continues to hold on to the “old relationship” between the biological and symbolic that can be traced back to the “King’s Two Bodies”—a reference to Ernst Kantorowicz’s influential study of medieval sovereignty.52 The king’s two bodies referred to a natural body that withered and died, and a political body that lived in perpetuity: “The King is dead, long live the King!” For Malabou, where something “more than” a material body is invoked, sovereignty is not fully deconstructed. The “more than” points to the persistence of the symbolic level (nonmaterial or transcendental and thus beyond the biological). In the idiom I have deployed above, it suggests the persistence of an archaic form of sovereignty that sits above and beyond the materiality of bodies. It also suggests that a thorough or “true” deconstruction will do away with this transcendent or symbolic level. What would this entail? Can the body or biological life, as I have been asking throughout this chapter, be a “sign of itself”? What would it mean for the body to be rid of the symbolic and yet be a sign of itself?

For Malabou the answer is to be found in epigenetics. Epigenetics concerns processes of change within DNA. These changes, or the brain’s capacity for neuronal plasticity, can be both chemical and environmental (43). The anatomy of a brain can be both genetically determined and responsive to external conditions and experiences. It is in this sense that we can be the “authors of our own brains” (43). On the basis of the capacity of brains for epigenetic plasticity, Malabou asserts that biology and history can be Page 74 →viewed as a dialectical couple where change or difference is marked within biological life itself (44). In this sense, the “structural meaning of the empirical” can be found “within the empirical itself” (44). The symbolic no longer needs to serve as supplement, surplus, or excess of the real (45). In the idiom I have used above, the assertion is that life (in its neuronal substance) can be a sign of itself. Or, to put it another way, and now more critically, Malabou seems to displace homo sacer with homo cerebrality. How does this escape a system of symbolic representation? Can any referential system exist without supplement, surplus, or excess? The novelty and significance of Malabou’s project is that it seeks to do away with signs as the representation of the material body. Life is no longer more or less than what it is—that is, to the extent that “what it is” is neuronal plasticity. The human subject (already an excessive sign) inhabits a world of stimuli. These stimulants interact with this creature at a chemical level—at the level of transformations in DNA. If the body is an archive, then it is a neuronal archive. What then of ethical relations and political formations? Jettisoning a sovereign determination of life—of life as the border, or life as outlaw—will not be brought about by adjustments in the relationship between the symbolic and material level of life. The symbolic level can determine the value of life. Centuries of struggle for legal equality (even at the symbolic level) are not without material consequence. But if the body is to be a sign of itself, the elemental reduction of it to the neuronal or chemical is not going to deconstruct sovereignty without “more.” More than a new sign for the materiality of biological life will be needed. The attention to “forms of life” that we have considered in this section open new archival possibilities. Changing the registers of intelligibility and representation can expose modes of subjection as well as how sovereign violence is distributed. If being a “refugee” is a redundant “sign,” then the attempt to open a way of thinking about “forms of life” that cut through governmental schemes for distributing identities to focus on ethical and political responses to our shared precarity and creaturely character can be useful. For instance, a sense of a self split from the outset, as Santner has explained, may help to dislodge the certainty that the subject is singular, transparent, and capable of being assembled in territorially distributed national groups. Pluralizing “forms of life”—that is, moving away from the hegemonic categories of citizen /subject—might open new and different archives of bodies. Being abandoned, being enisled, and being alone are forms of being an archive of sovereign violence. How are these bodies apprehended (both conceived and confined) as a sign? Page 75 →

Body as Sign of Itself A body that is encountered as an “unauthorized maritime arrival,” “unlawful non-citizen,” or “offshore entry person” is already cast and confined as an object. These are signs of the body devoid of the forms that command respect or appear worthy of empathy or recognition. Butler, Santner, and Malabou have each offered an account of a “form of life” as a move toward a new basis for having knowledge of the human subject with a view to confronting excessive and archaic manifestations of sovereignty. Each has attempted a deconstruction of sovereignty or the unitary subject with a view to revealing, accessing, or recognizing a life that has been neglected. However, the move to think life as one or other “form of life” needs to address the production and reproduction of sovereign formations such as the border or the security of the nation-state. These formations are constituted through the expulsion of particular bodies, and so the link between life and sovereignty requires further attention. What kind of knowledge is necessary to inaugurate a thinking of the body as a sign of itself—that is, a body that is unassimilable to the vicissitudes of sovereignty? As Peter Goodrich has suggested, sovereignty is a visive power.53 Sovereignty casts a gaze. What the sovereign

sees and claims to know will determine the fate of bodies in its control. An unseaworthy vessel carrying migrants can be seen as worthy of rescue, or as an opportunity to perpetuate a sense of invasion by virulent bodies. A sovereign power differentiates bodies from life worthy of a protected status. Schmitt’s decision on friend/foe continues to be the existential calculation at the heart of the visive power of the sovereign to see expendable bodies rather than neighbors, guests, or fellow creatures. How might we shift what the sovereign sees? Derrida’s final seminars on the Beast and The Sovereign contain some of his most ardent reflections on sovereignty, its constitutive distinctions, and relation to visive power. He begins his examination of the difference that marks the sovereign from the beast with emphasis on the marginalization that inheres in these terms. Their French nomenclature already denotes a feminine/masculine difference between the beast and the sovereign, la bГЄte and le soverain. In addition Derrida points to the different pronouns attributed to the beast and the sovereign—the former a what being, and the latter a who being.54 So much follows from the pejorative pronoun attributed to a being: what or who. The distinction between what/who, between beast and sovereign, grounds ethical and political relations. Knowledge, theory, and ontology are arranged through these types of being. In deconstructing sovereignty, Derrida sets out to problematize the separations of Page 76 →what/who, beast /sovereign, feminine/masculine. He suggests that the disruption has to begin at the level of knowledge, of what it means to know, see, cast one’s gaze, have access to an object known, seen, and graspable: “knowledge is sovereign” (280). The opening scene for this deconstructive encounter with the sovereign is an archaic spectacle. It is the autopsy or anatomical dissection of an elephant conducted in front of Louis XIV in 1681 (277). The dismemberment of a beast, the elephant, the “precision with which its parts were examined,” manifests the macabre conceit of absolute knowledge. The sovereign seeks this knowledge—an omnipotent seeing of all that he commands extended into the anatomy of the beast. It is an event that follows a combat—what Derrida calls an unconsciously amorous and narcissistic seduction, hunt, and capture (281). It is a phenomenological event in that the elephant appears as an object before the “Sun King’s” gaze—an appearing before the light of the king’s knowledge (281). The King “owns” and knows, possesses and has knowledge of the beast for pleasure. This knowledge is mediated by institutions—the anatomy lesson unfolds under the authority of the French Academy of Sciences created by the monarch. Derrida argues that this “knowing-power, power-toknow, knowing-how-to-see, and sovereign being-able-to-see is not, fundamentally, revolutionized by the French Revolution” (282). The sovereignty of nation or people in the modern international system is a new form of the same structure. At the heart of the matter is sovereign mastery over the beast. The absolute knowledge of the sovereign also extends to history—the sense that everything is known in advance (288). Derrida draws on Louis Marin’s book The Portrait of the King to express the as if, the simulacrum effect or fiction of the sovereign spectacle. “Absolute knowledge” means that everything happens “as though it were known in advance,” and thus like a “marionette,” programmed and “providentially prescribed” (288). This historiography of the sovereign creates in the reader-spectator “the simulacrum, the illusion, that he is the one who is pulling the strings of the marionette of history” (288). This is the “as if” central to sovereignty: Sovereignty is this narrative fiction or this effect of representation. Sovereignty draws all its power, all its potency, i.e. its all powerful nature, from this simulacrum effect, this fiction- or representationeffect that is inherent and congenital to it, as it were co-originary. (289) That means giving the reading or watching subject the illusion of “himself pulling sovereignly the strings of history or of the marionette.” All this Page 77 →means that sovereignty does not exist as such. Sovereignty is an economy of distribution of simulacrum effects. Notions such as “transfer, translation, transition, tradition, inheritance, economic distribution” are the site of the division, transaction, and negotiation of sovereignty. These are the productive sites for dividing the assertion of absolute sovereignty or sovereign borders. The fiction of excising Christmas Island from Australia is one such simulacrum effect of sovereignty. It is to treat space and the boat migrants as marionettes. Seeing and marking bodies as “unauthorized maritime arrivals,

” “unlawful non-citizens,” or “offshore entry persons” represents them as “what beings.” In the name of sovereign Australia, an absolute all-seeing, all-knowing knowledge is claimed. The people arriving in boats are already deemed “economic migrants” rather than people fleeing persecution. But how might bodies in these excised spaces be differently discernable? What structures of representation will be drawn on to access people in small boats? These questions can be addressed by considering the signs and markers of intelligibility that structure the difference between boat migrants as “who” or “what” beings. Breaking the regime of sovereign knowing and representation of “who and what” means that being might be approached by conceptualizing the other as “wholly other.” The “wholly other” was taken to its radical limit in the work of Derrida. In contrast to many other continental thinkers of the problem of Being, Derrida can be singled out as the philosopher who persistently asserted that the other be regarded as “wholly other.” As J. Hillis Miller points out in his illuminating essay “Derrida Enisled,” for Derrida the “other” remained absolutely irreducible to any conception of community.55 Hillis Miller identifies a number of influential albeit distinct thinkers of community with reference to whom he compares Derrida: Martin Heidegger, Bernard Williams, Jean-Luc Nancy, Giorgio Agamben, Alphonso Lingis, Jacques Lacan, Maurice Blanchot, and Emmanuel Levinas. Derrida might also be regarded as a thinker of the problem of community—but he is, for Hillis Miller, distinct among these thinkers in his insistence that, when it comes to the “other,” “there are only islands” (120–21). The relationship between Being and community can be located in Heidegger’s assertion that Being as “being there” (Dasein) necessarily involves a being-with (Mitsein or Mitdasein). On this account, “вЂbeing together is a primordial feature of Dasein” (105). Jean-Luc Nancy developed the most influential account of this ontology of being as being-with. As Nancy put it, one cannot “be alone being alone.” The finitude of being, the limits of Page 78 →existence, can only be experienced in community. The experience of death (that which most properly belongs to any singular being) is encountered in community. One does not say “I am dead.” One sees other beings—plants, animals, humans—cease to exist. So “I” am only aware of my own being (and its limits) by being with others. Derrida challenges this influential account of the ontology of being. Hillis Miller usefully compares Derrida’s thought on community to Levinas’s account of the ethical relationship to the other. For Levinas, to put it briefly, it is the “visage,” the unique face of the other, that demands a response. Levinas emphasized the “face-to-face” demand for responsiveness and responsibility as “outside of being, not something that rests on an ontological relation” (111). The relation to one other, any other, would reach toward “infinity” (115). To that extent Levinas is not explicitly interested in community or the collective. But Levinas asks, “To what extent is the relation to the other or the collectivity—which cannot be reduced to understanding—a relation with the infinite?” (115). Hillis Miller suggests that the addition of collectivity seems like an afterthought. But for Derrida it is central. The inability to respond to all others “betrays all the others” and thus fractures community (115). At the same time, the claim to sovereign solitude is also a claim to protect community—at its best an assertion that no community can absorb an infinite number of immigrants. Infinite openness will destroy the very conditions that enable hospitality.56 Returning, then, to the other’s body with which this chapter opened: a body enisled to the point of destruction, beyond the limits of what is bearable, Omid Masoumali’s body. We might tentatively approach Omid Masoumali’s body and life with the reflection that “[t]here is no world, there are only islands.”57 Omid Masoumali was alone—but terrifyingly, he was alone with others, he was alone with “us.” Omid Masoumali was alone having had his status as refugee recognized by the Australian state. Fixed by the gaze of an all-knowing sovereign, standing with others, he was utterly alone. The status of “refugee” will always be out of time by coming after the act of defiance that compels people to move to a better and safer life. One need not have radical opinions to seek refuge. To refuse internment at the borders of Europe; to want more for your children than charity; to risk everything by crossing seas and land borders—these are all political acts. The newcomer and the migrant are a constitutive force. They venture

toward a future in which the label “refugee” is always already redundant. It always comes too late. If the refugee is out of time and out of place, how might the condition of exile open political possibilities? Page 79 →Edward Said addressed this question in his essay, “Reflections on Exile,” cautioning against romanticizing exile: Is it not true that the views of exile in literature and, moreover, in religion obscure what is truly horrendous: that exile is irremediably secular and unbearably historical; that it is produced by human beings; and that like death, but without death’s ultimate mercy, it has torn millions of people from the nourishment of tradition, family and geography?58 And yet, pitching exile against nationalism in a dialectical struggle akin to Hegel’s master and servant, Said drew out the elements of solitude and loneliness of exile that may present an “alternative to the mass institutions that dominate modern life.”59 The moral imperative, as Theodor Adorno put it, is “not to be at home in one’s home.”60 Said embraced the sense that the only “home” that is truly available is in writing. This need not only be the exalted privilege of the intellectual, for inhabiting language and culture contrapuntally is the experience of all exiles. Can the exile be housed in language? Reflecting on home, exile, and statelessness, Judith Butler in her book Parting Ways: Jewishness and the Critique of Zionism considers the possibility of a poem as a home or homeland that puts an end to exile: One might wish the poem could become a home or homeland that puts an end to exile, but the poem is no place, its borders are not closed. It is in this sense utopic, opening out to a plurality that is called forth by the scene of its address.61 Butler is reflecting here on a poem by the Palestinian poet Mahmood Darwish, “Who Am I, without Exile? ” What, Darwish asks, would it mean to live in a time where there is no thought without exile? Darwish’s poem points to a liminal place without a road (nowhere to go, no direction), or home (nowhere to stay, dwell, be): There is nothing left of me but you, and nothing left of you but me, the stranger massaging his stranger’s thigh. O stranger! What will we do with what is left to us of calm and of snooze between two myths? And nothing carries us: not the road and not the house. Was this road always like this, from the start, or did our dreams find a mare on the hill Page 80 →among the Mongol horses and exchange us for it? And what will we do? What will we do without exile?62 For Butler, “Exile is the name of separation, but alliance is found precisely there, not yet in a place, in a place that was and is and in the impossible place of the not yet, happening now.”63 The refugee as sign of itself inhabits this impossible place that along with Said we might call exile. For Darwish nothing carries us, “not the road and not the house.” This nonplace yields an important counterpoint: this is not the road, this is not the house. People who courageously crash through borders, scale walls, dig tunnels, and sail on boats to find new routes to their future know this. They recognize the difference between “no road, and no house,” on the one hand, and “this is not the road, and this is not the house, ” on the other. They embrace the space this difference creates. That is the thought of exile: a thought, a sign,

and a counterpoint. We can then embrace exile as a space of action and thought—that is, as the political par excellence. There remains, however, a sovereign solitude that I have alluded to at several points in this chapter. Australia, I have argued, seeks an impossible sovereign solitude. It is not alone in this fiction. The problem arises from another archive: the archive of the sovereign state purporting to give itself its own law by its own means. Addressing that conceit will be the task of the next chapter.

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3. Facts SOVEREIGNTY IS NOT A FACT. Sovereignty is the destruction of facts. Nonetheless, the fact of sovereignty is central to the establishment and formulation of legal norms. Where the sovereign facts that account for the establishment of a legal order involve genocide, the relationship between sovereignty, law, and facts is especially pertinent. When the facts that establish a system of legal norms are also “fictions,” these narratives, modes of representing violence, and forms of judicial recognition destabilize law as archive. If these “facts” are then revised and adjusted over time, the role of law as an archive of destruction becomes a highly contested field. Australian law is such an archive of destruction. When the High Court of Australia was asked to determine the constitutionality of genocide in 1997, it reduced the matter to a question of law. The case was Kruger v Commonwealth of Australia—the first “Stolen Generation” test case to consider the constitutional validity of legal provisions that enabled the systematic removal of Aboriginal children from their families.1 For nearly a century Aboriginal children deemed half-caste, quadroon, or octoroon in colonial classifications of race were removed and detained in reserves and missions, or adopted by white families. Incarceration, assimilation, violence, and abuse were hardly deniable elements of this brutal scheme. Many of these children lost connections with their families, their language, and traditions and customs. But was it genocide? This is a question that arose in Kruger and other cases that we will consider shortly. My opening assertion “sovereignty is not a fact, it is the destruction of facts” repeats the gesture by Marc Nichanian: Genocide is not a fact. Genocide is not a fact because it is the very destruction of the fact, of the notion of fact, of the factuality of fact.2 Page 82 →This claim condenses the insight that what is unique about genocide is that, among other horrors, it may involve the destruction of the archive that attests to its occurrence. The archive is both fact and sign. Indeed, genocide presents the question of whether it is a fact or sign. Genocide is an event that destroys or throws into question the possibility of its representation as a fact or sign. Famously, Lyotard proposed that “with Auschwitz, something new happened in history (which can only be a sign and not a fact).”3 According to Lyotard, Auschwitz is an event that is only equivalent to its proper name or sign, and is thus not comparable with other events. In this proposition Auschwitz is emblematic of an event that presents the limits of language and representation. Determining whether state violence is representable as fact or by a proper name (sign) is the problem that Nichanian confronted in relation to the Armenian genocide. He was building on Lyotard’s proposition that goes to the heart of what it means for something to happen in history: “something has occurred in history that may not have occurred as fact. Or worse: that something has occurred as the very negation of the fact as such.”4 Put another way, Lyotard and Nichanian raise the question of the meaning and “sense” of a historical occurrence. What is the meaning of acts of violence perpetrated by a state, its officials, or other individuals? Where the acts in question involve the foundation and perpetuation of the legal system, the nature of the sovereign “event” goes to the heart of law as an archive of violence. We will consider this problem with reference to the Australian High Court’s decision in Mabo v Queensland (No 2) and the ensuing problems associated with the archive as both fact and fiction.5 What makes an event a fact? Nichanian posed this question in his engagement with disturbing responses to the Armenian genocide by a number of historians in the 1990s. The extermination of Armenians in the Ottoman Empire in 1915–16 was a matter brought before a French civil court when Bernard Lewis, prominent historian of the Ottoman Empire, contested the existence of the Armenian genocide.6 Lewis had questioned whether there was “proof of a decision or of a plan on the part of the Ottoman government regarding the extermination of the Armenian nation.” Was it instead a deportation that had “turned out badly” due to elements such as “famine, sickness, abandonment, and weather”?7 In relation to the Armenian genocide and the

“interpretation of events” referred to in Nichanian’s book, it was the French law prohibiting the denial of genocide that ultimately determined the outcome of the particular controversy. But this was not because the court usurped what is apparently the historians’ task of determining the “fact” of the Armenian genocide. The historian had Page 83 →asserted that no “serious proof exists of the Armenian genocide.”8 In doing so he was found by the court to have been “occulting the elements contrary to his thesis,” and lacking in his “duty of objectivity”: “the defendant has not proven the lack of proof.”9 But this intervention by French law did not make the event of the Armenian genocide a fact. Genocide as the destruction of the archive remained in place. This “historiographical perversion” that Nichanian points to is also the object of this chapter. It concerns the manner in which a sovereign event or act of violence can fail to be a fact. Nichanian suggests that we need new ways to think about the genocides of the 20th century, and that there is a crisis of representation in relation to genocide.10 Drawing from his important work we can begin to frame a series of questions regarding the archive of sovereignty to be addressed in this chapter. Is sovereignty an event or a fact, and what difference does this make? There is an undecidability of sovereignty as event or fact especially as the difference or distinction between the two only becomes cognizable as law engages in its memorial practices over a period of time. Both law and history play a role in “interpreting” acts that have no archive in the form of documents or witnesses precisely as the event itself involves the destruction of records or persons that may bear witness to it. In recognizing that such events have taken place, law both inscribes and confines the contours of the event. We will see below how colonization as a process of genocide is elided in this legal technique. Even where events are witnessed or otherwise evidenced, their meanings require interpretation and are thus contested. The nature of testimony and witnessing are then thrown into question. This is not to say that the event is not a fact. We then face the problem of distinguishing and determining events from facts. Will the drawing of that distinction be a matter for historiography or law? What is the relationship between the inscription of events, facts, and claims for justice?

Fact of Law The law in question in Kruger was the Northern Territory Aboriginal Ordinance of 1918. The ordinance made the chief protector of Aborigines the legal guardian of every Aboriginal and “half-caste” child in the Northern Territory “notwithstanding that the child has a parent or other relative living, until the child attains the age of eighteen years.” The chief protector could at any time take into his “care, custody, or controlВ .В .В . any aboriginal or half-caste, if, in his opinion it is necessary or desirable in the interests of the aboriginal or half-caste for him to do so.”11 It was an offense to resist or Page 84 →otherwise impede removal or detention.12 Of the six plaintiffs in Kruger, five alleged that they had been removed pursuant to these laws, and one that she was the mother of a child who had been so removed. The removals were alleged to have taken place between 1925 and 1960. Kruger was not determined on the facts. No evidence was taken or heard about the removal and incarceration of these children. Instead, legal questions about the constitutional validity of the ordinance were reserved for determination by the Full Court of the High Court of Australia. The majority of the High Court found the ordinance to be constitutionally valid. Much turned on “intention”: whether the ordinance had the purpose and intention of inflicting harm, destruction of a group in whole or in part, and thus amounting to genocide. The majority found that such purpose and intent to commit genocide was lacking. And even if standards of reasonableness were to be applied, Chief Justice Brennan was of the view that such “[r]easonableness can be determined only by reference to the community standards at the time of the exercise of the discretion and that must be taken to be the legislative intention.”13 This could not be judged “if the unreasonableness appears only from a change in community standards that has occurred since the step was taken.”14 He did not explain how such “community standards” were ascertained or determined in the absence of evidence. Notwithstanding the failure to elicit facts, the process of removing children from their families was now found then to be reasonable—as a strained historiographical formulation we will soon examine would have it.

There is a strong historicity asserted in Chief Justice Brennan’s reference to “community standards of the time” as a basis for determining the reasonableness of laws—especially those under scrutiny for authorizing genocide. As Valerie Kerruish put it in her incisive critique of the High Court in Kruger, this historicity is especially strained when the “facts” that are so central to the method of the common law are not made part of the inquiry.15 A distinct feature of the common law is that it determines a claim case by case with recourse to its specificity. Instead, in Kruger the High Court manufactured a form of reasonableness in which—as Kerruish also pointed out—distinctions of law/fact, law/nonlaw, and law/state “interact, merge, and overlay each other to create both the distinctive texture of common law thought and to constitute its form of reasonableness as supreme.”16 This formulation, combined with the absence of a clear theory of the state (a Rechtsstaat) in common law thought, lead to a lack of constitutional constraint.17 Law was given a form of dominion over facts such that the state, Page 85 →although not separate from law, was allowed a range of exceptional and discretionary action. The law was interpreted as beneficent—the wording of the ordinance, “in the best interests,” was said to avoid any suggestion of genocidal intent. As we will see in the discussion that follows, the task of separating a version of the past from the autonomy and perpetuity of the state is a central aspect of the historiographical perversion. If the fact of genocide will not be heard, can the law at least place genocidal behavior beyond the realm of legal possibility? The Convention on the Prevention and Punishment of the Crime of Genocide adopted by the UN General Assembly in 1948 was ratified by Australia in 1949. However, in order for the provisions of this international treaty to be effectively enforceable, Australia needed to pass legislation implementing the substance of the Genocide Convention. The matter was considered in Kruger, and more extensively addressed in Nulyarimma v Thompson.18 The latter case involved two separate applications that were joined as they both turned, or so the judges believed, on a single legal question: whether genocide was cognizable as a crime in Australia. The case, which we will discuss shortly, prompted a private senator’s bill19—the Anti-Genocide Bill 1999—but this did not mature into a statute, and was overtaken by amendment to the Australian Criminal Code in 2005 following Australia’s ratification of the International Criminal Court Statute.20 As Jennifer Balint notes, while genocide has become a criminal offence in Australia, and is now prosecutable—and indeed, named—it is up to the Attorney General to bring prosecutions, with the decision final and no challenges allowed. This has had the effect of Australia continuing to fail to prosecute genocide.21 The veto power of the attorney-general was revealed when an indictment was filed in the Melbourne Magistrate’s Court in 2011 against the visiting president of Sri Lanka, Mahinda Rajapaksa, on allegations of war crimes and crimes against humanity. The attorney-general effectively ended the investigation by not supporting the matter.22 Although the law has changed since the court in Nulyarimma (1999) found genocide not to be cognizable as a crime in Australia, it is worth giving attention to this case in order to appreciate the archival role of courts in relation to colonial sovereignty and genocide. The applicants in Nulyarimma had requested that warrants be issued for the arrest of the prime minister, John Howard; the deputy prime minister, Timothy Fischer; and two other parliamentarians, including Page 86 →the leader of the right-wing One Nation party, Pauline Hanson. The conservative government of Howard was at the time promoting the “Ten Point Plan,” which had promised “bucket-loads of extinguishment” of native title. The “Ten Point Plan” contained the policies diminishing the recently recognized native title that had been found to coexist with other proprietary interests on pastoral leases (examined more fully below). The Plan was consolidated in the Native Title Amendment Act 1998, and the applicants were campaigning to stop that legislation. In the second application, Buzzacott v Hill, the applicant Kevin Buzzacott of the Arabunna people sought civil remedies and an injunction to compel the Commonwealth minister for the environment and the foreign minister to include the lands of the Arabunna people, including Lake Eyre, on the World Heritage list. He claimed the failure to do so constituted genocide. Before the facts of either case could be determined, the courts addressed the question of law: whether genocide was a crime in Australia. The answer from the majority in the Full Federal Court was that genocide was not (at the time of decision in 1999) cognizable as a crime in Australia: The existence of a particular intent is a matter of fact, and the facts of the present cases have yet to be

investigated. However, even if it is possible for them, in their respective cases, to demonstrate genocidal intent, neither the appellants nor Mr Buzzacott would, in my opinion, be entitled to succeed. Although I agree with both my colleagues that genocide is a crime under international customary law, like Whitlam J but unlike Merkel J, I do not think that, in the absence of appropriate legislation, it is cognisable in an Australian court.23

The facts on genocide had not been fully presented or contested. There was thus not enough to show genocidal intent, but too much history for the judge to avoid making an expression of remorse and regret for a crime of genocide that was nonetheless not punishable (at the time) by Australian law: Leaving aside for the moment the matter of intent, it is possible to make a case that there has been conduct by non-indigenous people towards Australian indigenes that falls within at least four of the categories of behaviour mentioned in the Convention definition of “genocide”: killing members of the group; causing serious bodily harm or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to Page 87 →bring about its physical destruction in whole or in part; and forcibly transferring children of the group to another group.24 And then there is a considerable expression of regret, for the past, but also for what is taking place now: Many of us non-indigenous Australians have much to regret, in relation to the manner in which our forebears treated indigenous people; possibly far more than we can ever know. Many of us have cause to regret our own actions. As the recent report of the Human Rights and Equal Opportunity Commission, “Bringing them home,” reminded (or taught) us, the practice of removing children of mixed ancestry from Aboriginal communities was not something confined to the distant past; it continued well into the 1960s in some parts of Australia. There must be many people, still in their 30s and 40s, who were taken from their mothers as infants.25 Justice Wilcox tells us that “there is conduct” that falls within the categories of the Convention’s definition of genocide. This is a form of violence at large—the unspecified conduct of “non-indigenes.” There is much to regret, we are told, about the past and the present. And the suffering is still being endured. The “victims” are present, but not accounted for. No such taking into account or accountability is possible if the law would not cognize the crime of genocide. Here the law is like a fact—its incidence does not follow from the peremptory norm or the international convention that prohibits genocide. The fact of the law can be acknowledged—it is a norm, it has regrettably been breached, the victims are present. But all these facts of transgression do not constitute the law in Australia. Sovereignty and genocide: two phenomena, not reducible to each other, but appearing together, and at times inseparable. Sovereignty as fact or event, and genocide as fact or event, presents the same archival problem. Sovereignty may be a genocidal formation—that is to say, it can take place by way of genocide. When the law established by this sovereign formation (of Australia) says that genocide is “not cognizable” in that jurisdiction, the archive of that sovereign formation is destroyed. The fact of genocide is expunged. It is not that the violence is denied, although sometimes there is that too; but more commonly the meaning of that violence, the meaning or “sense” of the fact, is denied. There is sovereignty, but no genocide, the courts claim. What is the meaning of this denial? What is made to be uncognizable, a fact or an event? What difference does this make, and who will decide, the judge or the historian? Page 88 →

Fact of Sovereignty The ability to distinguish the foundation of a colonial legal system from current law is seen as a central aspect of responding to the injustices of the past. Of course there is never consensus on whether the past can or should be adjusted. Many of the debates about histories of colonial violence concern what knowledge and responsibility

current generations can attribute to the past. The “history wars” have been a site of this contestation. Which “truth” of the past should govern the call for recognition and justice in the present? This is a site, I argue, where the tension between the “as such” (a constative) and the “as if” (a performative) presents itself. This tension also marks the sovereign reign of “law asВ .В .В .”26 Rival historiographical methodologies pose different questions to the past. Some posit law’s account of history as a redemptive narrative that seeks to address past wrongs. In such accounts the legal historian, judge, or official is to identify what was “missed” and put things right now. Others believe that history is the “uncontrollable consequence” of contingent political struggles in a specific time and place. What are the differences and implications of these rival historiographical methodologies? The law attempts to grasp the fact of colonial sovereign violence, isolate it, and thus disavow it “as such.” However, in the process of inscribing this violence “elsewhere”—as being a fact in and of another time and place—colonial sovereignty proceeds to be reiterated through a conceit: law proceeds as if its origin is legitimate and beyond question. The interplay of law “as such” and law “as if” points to the centrality of narrative, analogy, and fiction for how law goes about accounting for the past. An example from Australia, a society struggling to archive colonial sovereignty and inaugurate a postcolonial legal order, will illustrate how attempts to renew a law after histories of colonial violence manifest the “historiographical perversion” identified above. In 1992 the High Court of Australia decided Mabo v Queensland (No 2).27 For the first time since the imperial occupation and usurpation of Aboriginal lands by the British Crown in 1788, Mabo recognized that Aboriginal and Torres Strait Islander peoples’ antecedent property rights, or “native title,” survived the colonial acquisition of sovereignty. This decision gave an account of the basis for the British Crown’s acquisition of sovereignty over Australia, the reception of the common law of England in the territory, and its consequences for the proprietary rights of Australia’s indigenous people. The colonial acquisition of sovereignty was based on the “barbarian Page 89 →theory”—the notion that the Australian territory was acquired by the British Crown, and the common law of England became the “law of the land,” because the natives were “barbarous and without a settled law” (36–39). The High Court gave a retrospective account of how an inhabited territory was nevertheless regarded as “unpeopled” or terra nullius. This is the “as if,” the fictive trace of the inscription of sovereignty, at the heart of Australian law and society. The High Court came to acknowledge that the entire edifice of the Australian legal system was built on the monstrous fiction that the native inhabitants were barbarians without a settled law. The fact of sovereignty was, by law, deemed to be a fiction. The Mabo decision adjusted the common law in 1992 in order to recognize the antecedent property rights of the indigenous people. Two hundred and four years after the colonial invasion the courts came to the conclusion that the natives were not lacking in social organization, and that they held proprietary rights in land and water from the outset of colonial settlement. These rights and interests, or native title, were retrospectively recognized to be a burden on the “radical title” (sovereignty or imperium) of the Crown. While the Crown’s sovereignty remained putatively unassailable, the common law would now recognize that native title is a species of title that is (and would always have been) a burden on the radical title of the Crown. The court was thus recognizing the fact of dispossession. This takes us to the heart of the matter of doing justice to the past. Historical injustice “juts manifestly and fearsomely,” as Benjamin put it, into the present. In another register, the declaration that indigenous rights in land were always a burden on the radical title of the Crown was the moment of colonial sovereignty being “divided” or separated from a colonial past and oriented toward a future “postcolonial” sovereignty and law. Sovereignty could no longer be regarded as an absolute monistic plenitude (nor could it ever have been). The fact of sovereignty is reinscribed, but now in a manner that can distinguish it from one moment in time to another. The division of sovereignty becomes another fictive fact.

The sovereignty of the state in Australia was always a historiographical perversion. Sovereignty was an event that was not a fact. Sovereignty was based on assertions that are now, and were previously, known to be untrue. The demand for justice is partly about addressing the past sovereign assertion that does not, and could not, hold true. This sovereignty was always already fragile and divisible. The Mabo decision thus becomes an important instance of law archiving sovereign violence by way of instituting both a memory of past sovereign force and exercising a creative act of forgetting “now-abhorrent” colonial assumptions and practices. Page 90 →In Mabo the colonial assumption that sovereignty resulted in the Crown acquiring “absolute title” was distinguished from a “new” conception of sovereignty giving rise to two different forms of title. The divisible trait of sovereignty was found in the distinction between radical title (the colonial sovereignty of the state) and beneficial title (various private interests in land). There was, however, a hierarchy of interests in land to be reinstituted. A variety of Crown grants in land and other actions would effectively extinguish native title. Many indigenous rights would be regarded as “washed away by the tide of history,” as Justice Brennan put it. Moreover, native title would only be recognized if it were found to be consistent with the claimant’s traditional laws and customs. Those laws and customs needed to have continued unbroken from the time of colonial settlement if native title is to be recognized. Given the systematic destruction of Aboriginal society wrought by colonial governmental practices such as the coercive removal of Aboriginal children from their families, Christian missionary activity, and transformations in economic and cultural practices, it was difficult for indigenous communities to establish rights in land that would accord with their erstwhile traditional laws and customs. In recalling Australian law’s origins, the court inflicted new conditions for memory and forgetting on indigenous people. The fact of genocide would come to feature more heavily in determining the facts and concomitants of sovereignty. Indeed, nothing could more clearly point to Australian sovereignty as a genocidal fact. The fact that the court was able to alter the concomitants of the colonial sovereign assertion points to how colonial law both sustains and disavows its fictions. The “barbarian theory” on which the legal system and two centuries of dispossession were built retained its reach over time. An “as if” was preserved “as such” (the constative assertion). But the court was also able to render this sovereign assertion more malleable and subject to transformation over time. The “as such” was retained and converted. It was the fictive character of sovereignty purported to exist “as such” that enabled this malleability. Later, in the 1996 decision of the High Court in Wik v Queensland—a case concerning whether native title and rights under pastoral leases could coexist on the same land—Justice Gummow reiterated that the gist of Mabo lay in the holding that the long understood refusal in Australia to accommodate within the common law concepts of native title rested upon past assumptions of historical fact, now shown then to have been false.28 Page 91 →This is a profoundly confessional moment for the Australian legal system. It is the admission that the law is built on fictions and falsehoods. It is also a highly unstable speech act disclosing an uncertainty about whether the error of fact or falsehood is enacted “now” (the iteration of the “barbarian theory” in Mabo); whether it is the memory of what has happened “back then” (the account now of past facts and assumptions); or whether it is the recovery of something missed or forgotten back then. The historiographical perversion is situated in the undecidability of the “fact” now deemed false. What is the event of this fact? It is not clear if the event of the false fact is now or in the past, especially as the now discredited fact continues to be deployed to explain the foundation of the legal system. Bemoaning the lack of an “established taxonomy” to regulate “uses of history in the formulation of legal norms,” Justice Gummow wondered whether the gesture to “shift the foundation” would be regarded as a “rhetorical device devised to render past reality into a form useful to legally principled resolution of present conflicts” (183). This signals the pragmatism of the common law, which cannot be trusted with facts. Rendering the past in a manner that is useful for the resolution of present conflicts collapses the difference between legal principles and contingent facts. The sovereign event is then neither fact nor fiction. The sovereignty of the Australian state is a perversion built on false facts that continue to be expedient in the “formulation of legal norms.”

Justice Gummow wished for an “established taxonomy” to regulate history. This is the language of legal realists, anti-metaphysicians, and social scientists. Judges have become accustomed to taxonomies, hierarchies, and irrefutable facts that buttress law-as-calculation. But no such taxonomy exists, and no such facts exist. The law confronts its past and becomes, for a moment, lost in time. The court is disorientated by its own past fictions, which it must continue to rely on and disavow at the same time. The speech act “now shown then to have been false” moves the common law of the 1990s back to its historical antecedents, but only within law’s own rhetorical gestures and textual inscriptions. The judges write this past and in the process become uncertain whether they are discerning past facts hitherto ignored, or whether “the past” (history) is determining what they do now. There are multiple moves here of inscribing, preserving, and disavowing the colonial sovereign foundation. The assertion of terra nullius as the basis for dispossessing Aboriginal people of sovereignty over their lands is then a falsehood propounded “back then,” and a convenient means of accounting for that dispossession today. It is a historiographical perversion par excellence. Page 92 →The instability of the fact of the sovereign event is at the center of debates concerning rival historiographical methods. Put simply, is the work of the historian a redemptive one—that is, concerned with the construction of narratives that would offer an account of how past misrecognition can “now” be adjusted (in Justice Gummow’s terms this would involve “now” recognizing that an error or falsehood was performed “back then”)? Or is it rather one of placing past injustices in a social and political context that can be discretely “contained” in a time “now past”? The problem here is the uncertainty of whether law as archive of the past, and the historiographical rendering of it, is a projection of the present into the past, or a retrospective recognition of what was always there to be discovered. The question I explore in more detail below is whether this is merely a problem of rival historical methods, or a wider metaphysical problem of law’s fictions that needs to be posed differently. In what follows I examine rival approaches to whether past injustices can be addressed now, and how that can be done. Later I suggest that the ungraspable character of colonial sovereignty—its apparent malleability—is better addressed as a problem of the ontology of sovereignty. For now let’s consider debates among the historians.

Historicity A telling exemplar of rival historiography about colonial sovereignty is presented in Ian Hunter’s account of the problem of political, rights-oriented, and redemptive history.29 He associates this with the work of the influential Australian historian Henry Reynolds. Reynolds’s oeuvre is widely associated with the progressive historical revisionism of the 1970s and ’80s in Australia.30 This latter historiographical method is credited with the Australian High Court’s belated recognition of indigenous land rights in the form of native title in Mabo v Queensland (No 2). The fact of this “belatedness,” this “coming after what should always already have been known,” is itself at the heart of the historiographical dispute. Reynolds later went on to argue that indigenous Australians should be regarded as a sovereign nation at the time of the first colonial encounter, and that their sovereignty was now capable of recognition.31 The Australian High Court has steadfastly refused to countenance Aboriginal sovereignty in a series of cases.32 Nonetheless, Reynolds’s history, as with other social historians, seeks a perfectibility by way of adjusting past misrecognitions that are now judged to be capable of being done differently “back then.” For instance, Reynolds has argued that judged by the standards and principles of natural Page 93 →law and the law of nations of the 19th century, Aboriginal peoples should have been recognized as sovereign nations. This past nonrecognition is then regarded as redeemable by recognition now. Hunter’s critique of Reynolds is based on a historiographical dispute about the archive of natural law and the law of nations in relation to Aboriginal sovereignty. Reynolds’s claim for the recognition of Aboriginal sovereignty is not based on a “weak” form of recognition within Australian constitutional law, but on a “strong” claim that it is a time-immemorial right rooted in the cultural and ethnic identity of the Aboriginal “nation.”33 Aboriginal sovereignty is not dependent on recognition by the Australian state, but is rather capable of recognition as a universal right in natural and international law—the jus naturae et gentium.34 Reynolds locates the failure to recognize Aboriginal sovereignty in the judgment of Justice Burton in R v Murrell (1836). On Hunter’s account, Reynolds has posed a moral and metaphysical question—“were the

Aboriginal tribes sovereign?”—and determined the answer on the arguments of an 18th century Prussian philosopher. Christian Wolff’s Jus Gentium, Reynolds hopes, would render Aboriginal sovereignty a fact or phenomenon that existed at the time of first contact, and one that was capable of recognition by the juridical science of the time. The fact that Wolff’s text was not translated into English till the 20th century is the key problem for Hunter. Reynolds deals with this on the basis that English lawyers of the 19th century would have encountered Wolff’s work via Emer de Vattel.35 However, and now the dispute ranges into speculation about conclusions that may have been reached, Vattel is not helpful as he distinguished dominium from imperium. Nomadic ownership was equated with the former, and so sovereignty would not follow from having dominium over land. Thus, Hunter’s critique of Reynolds is that the latter has to drop the historical argument for a philosophical (moral and metaphysical) one: Reynolds appeals to the law of nations in order to establish the normative standpoint, common to us and our colonial forbears, within which Aboriginal sovereignty is rightfully recognizable, and in relation to which its denial (by Burton and the courts) constitutes a manifest injustice. In silently dropping his historical claim that the colonial jurists did indeed share this normative law-of-nations standpoint, however, Reynolds tacitly treats this standpoint as timeless and universal. In fact he treats it as grounded in the time-immemorial “ancestral rights” of the Aborigines themselves and their recognition by the timelessly rational jus gentium. In Page 94 →this regard, he reactivates one of the programmatic imperatives of a particular tradition of the jus naturae et gentium: namely, to subordinate the positive law of the state to a higher timeless moral law. (143) For Hunter, subordinating the positive law of the state to a universal moral law is associated with antistate social history—a move away from the level of law and the state, and to reliance on a theory of the ideological determinants of society (143–44). For Hunter the Reynolds-type “redemptive historiography” rests on the idea of a “moral nation” that has fallen from its “high moral destiny” (138). It is a historiography, on Hunter’s view, that shares a “presentism” with the common law: the view that past actors were governed by the same norms and purpose as their present counterparts—which permits the law to function as the trans-historical frame against which the moral history of that nation can be judged. (139) Modern revisionist redemptive historiography is then compared with common-law revisionism (we saw this unfolding in Gummow’s judgment in the Wik case). Redemptive historiography and the common law both “view the law as historically grounded and timelessly present, in the sense that its past defects can be judged and corrected in accordance with present norms that are treated as timelessly available to its original architects” (139). Hunter contrasts Reynolds’s social history of the law with the rival Cambridge school of analytical historiography whose ambit is the “history of historiography” (138) (a school of historiography that Hunter goes on to associate with antimetaphysics). Eschewing the “moral-nationalist historiography,” the analytic historiographers reconstruct the “context-specific вЂlanguages’ of political thought” (138). The redemptive history that seeks resolutions to historical exclusions is associated with the “revisionist historical sense of the common law” (138). In contrast to this Whiggish history of immemorial rights “permanently present to reason,” the contextual approach of J. G. A. Pocock is relied on. This is seen as giving an account of public law arising from the “governmental will of a sovereign or state and is thus anchored to a particular time and place through the contest of political forces” (140). This focus on context and contingency is a modernist obsession that Christopher Tomlins characterizes as a postEnlightenment philosophical position:

Page 95 →Historicism’s roots lie in post-Enlightenment, particularly German, scholarly discourse, in the relativist proposition that all social and cultural phenomena, as well as the categories to which they belonged, the truths they were understood to convey, and the values that might be generalized from them, were comprehensible only by an examination of the historical context in which they occurred, an examination rigorously detached from any evaluative criteria belonging to the historian’s present that might distort comprehension.36 This brings the antimetaphysical historiographical approach into sharper focus. On Hunter’s account the rights of Aborigines, including their right of sovereignty, was determined in the mid-nineteenth century by a conflict unfolding between frontier settlers and the Colonial Office in London (161). The settlers preferred a plural legality, a localized common law jurisdiction that sometimes opportunistically asserted that indigenous people had not been conquered. The colonial Crown, in contrast, asserted a unified jurisdiction over the territory in order to secure a stable and unified claim to sovereignty over the territory. Both claims were inchoate, and wrought at the expense of indigenous peoples. For Hunter the variegated story about contested jurisdictions in colonial Australia emerges from a contextualized historiography—one that eschews the metaphysical moral claims about the rights of Aboriginal nations, or indeed the moral perfectibility of a fallen colonial Australian nation (166–67). Hunter promotes a rival historiographical approach to public law and constitutionalism that views the state not as an agent responsible to and for the moral history of the nation, but as one whose normatively ungoverned actions—including colonization—give rise to history as their uncontrollable consequences. If this is a historiography from which no moral guilt may be ascribed to today’s Australians, then it is equally one from which they may draw no moral comfort. (167, emphasis added) This is a history, for Hunter, without the possibility of guilt or legitimacy. If colonial history is understood to invariably raise the question of the justice of being-in-place over time, then a contextualized historiography is incapable of providing a normative response. A position apart from the contextual and contingent forces on the ground is rendered unimaginable. Indeed, the place of the imaginary—the significance of narratives, fictions, and images for producing history—is devalued. It is a historiography with no place for justice. Page 96 →Significantly for my purposes, Hunter’s assertion is that history is an uncontrollable consequence. The fact in question—Aboriginal sovereignty—is to be determined by historical context now known to be putatively true about a colonial mind-set. In addressing the question of colonial sovereignty, there are no other competing facts. On the contextualist approach, the various colonial impositions are normatively ungoverned, and certainly not governed by the standards of legitimacy and justice that may now be brought to bear on past events. It is this tension between a historiography of redemption and contextual history that I seek to displace with an account of the ontological problem of sovereignty that places colonial and postcolonial sovereignty inextricably in contact with law and normative frameworks. My point is not to suggest the possibility of a redemptive outcome—on that I am closer to Hunter than I am to Reynolds. It is rather to counter the antimetaphysical tendency to displace the problem of justice. The claim of Aboriginal sovereignty must then be heard on the facts—a hearing that Australian courts have steadfastly refused to provide. The archive of Aboriginal sovereignty is then maintained under erasure. My approach to archiving sovereignty offers a way beyond the rival historiographies we have been considering. It pays attention to “law asВ .В .В .”: to the metaphors and fictions that sustain the sovereign assertion that is nowhere absolutely present. The fact of sovereignty is not yielded by the context of its assertion, but sustained through its various fictions. What requires attention, then, is the “asВ В .В .В .” that sustains the presence of colonial sovereignty. Michael Naas puts it well when he argues that Derridian deconstruction, before being a critique of phono-centrism and logocentrism, before even being a critique of the “metaphysics of presence,” is a “critique of the as that makes all presence possible.”37 Before being a critique of analogy, sovereignty, or the event,

deconstruction is a critique of the “as,” the “вЂas such,’ and the вЂas if’ that make all comparison and analogy possible.” Deconstruction is a critique of the “authoritative or sovereign “as.”38 What Derridian deconstruction sought to undo was the “sovereign reign of analogy.”39 We should thus seek the point of contact between philosophical accounts of the “birth to presence” of phenomena and historiographical problems.40 In sum, we should explore the relationship between ontology and history. As I set out in the introduction to this book, Derrida takes the problem of the “as if” back to Kant. We have seen that law shares the “conditions of its possibility with the literary object.”41 The “as if” introduces narrative and fiction to the core of legal thought.42 There is no history, genesis, or Page 97 →derivation of categorical authority. The narrative or fiction of the law takes the place of an uncertain origin. The implications of this approach to the being of law reach beyond a critique of the rival histories of natural law in colonial Australia. The antimetaphysical account of the state is central to debates in contemporary jurisprudence and constitutional theory. The autonomy and reach of the public law of the state is challenged by rival jurisdictions in postcolonial settings. The political consequence of the contextualist historiographical approach—while delivering freedom from moral guilt and the absence of moral comfort—is the autonomy of law and sovereignty. The fiction that sustains colonial sovereignty remains in place. That is, the law proceeds with its foundation: acting as if Australia was unpeopled and without a settled law at the time of colonization. The courts act as if the colonial assertion of sovereignty reached a level of plenitude after its original violence. With this tenuous foundation, law asserts its autonomy. The question that comes after the recognition of “law asВ .В .В .” is whether human relations, including relations between rival laws—rival jurisdictions43—can be represented as autonomous, as constitutionalists and public lawyers are prone to do. That is precisely what is at stake in attempts to renounce metaphysics and theology in accounting for the ethics of judges, officials, and their rival jurisdictions. In what follows I will focus on the work of Martin Loughlin, the influential constitutional theorist who has attempted a systematic account of the autonomy of public law. He has done so by drawing on Ian Hunter’s account of a rival Enlightenment.44 It is an approach to accounting for public law, which, as we will see, continues to rely on the “as if.”

Autonomy According to Loughlin, sovereignty expresses the basic features of the modern state: “internal coherence, external independence, supremacy of the law.”45 Political power, he argues, is independent of material factors—it is generated by the “living together of people” (77). Drawing on Arendt, Loughlin claims that power becomes authority, a form of government, when it is manifested in an institutional form. Public power is political power “harnessed” in order to give it institutional form. It is only by way of a “relation,” society, that public power is sustained. This relation can give rise to a system of rules. The system is only sustainable by the “opinion” and “belief” that the system reflects the being-together, the being civil, by consent and choice, of equal individuals. This account of public power as Page 98 →the “action” of autonomous beings, the coming-together of equal individuals, is drawn from Aristotle via Arendt (78). The political is explained by the fundamental quality of plurality, one that is expressed through action and speech. As we will see later, this version of plurality is not able to sustain the autonomy of the political as I argue that the logic of “each one” is undone in modern democracy (in the “dis-position of beings”). For Loughlin, sovereignty is a representation, a re-presentation of the relation between individuals. In the colonial setting, or in any polity with rival claims to sovereignty or autonomy, the commonality of sovereignty is far more contested than Loughlin will allow in his account of public law. For Loughlin, sovereignty is a function of the being-together of individuals united by common action. Sovereignty is thus vested in the state. But how do we reconcile the relationship between the authority exercised by the office of the sovereign and the liberties of individuals that this office may curtail? In other words, how do we explain the relationship between authority and liberty? Loughlin, drawing again on Arendt (On Revolution), explains it through the Latin root of authority,

auctoritas—which is drawn from the verb augere (to augment). Those in authority must augment the foundation—they must realize that authority is based in the “past,” that is, in “tradition.” However, as we observed above, that past is a contested one: there are rival pasts, and rival approaches to extracting its truths and traditions. Loughlin understands tradition as a correlate of the people (82). But the people, from Rousseau and beyond, must proceed as if. The “people” is staged.46 The “people” of all social contract theory proceeds with the paradox that the freely contracting individual subject enters into relations with an entity (the city or the state) that is only formed after the act of contracting. The authority exercised by a sovereign is conditioned on the autonomy of the rights-bearing autonomous subject. The tension between authority and liberty/freedom doesn’t undo the “presence” attributed to the unity or commonality of people, tradition, and so on. The “past” or tradition can only be a “placeholder” of what in fact is an “empty place”—the empty place of power identified by Claude Lefort.47 The sovereignty of the nation-state, as we saw in the discussion of Mabo and Wik above, is contested, unstable, and subject to revision. The past does present problems of authority and authorization. These can usefully be thought through the root of auctoritas. But augmentation is less likely to supply a stable unity, and more likely to expose the fragility and precariousness of the sovereign claim. Loughlin does, however, agree that sovereignty as an expression of a political relationship is relational. It is impossible, he says, to conceive of Page 99 →sovereignty as an exercise of public power without considering the sovereign as a re-presentation of a political relationship, or as a person, organ, or office authorized to act on behalf of the political community (82–83). Sovereignty is the relationship between “ruler and ruled.” It is an expression of this political relationship and is not a “thing” that belongs to one person or group. Sovereignty for Loughlin is thus both “legal” and “political.” As an expression of public power, in its institutional official form, it is legal. As the expression of a political relationship, let’s say between ruler and ruled, it is also political (84). From this is derived the assurance (and the assumption) that “[s]overeignty divided is sovereignty destroyed” (84). But how, then, is sovereignty both political and legal?48 One way to approach this question is to consider whether it would be useful to approach sovereignty, law, and the political as ontological problems (a matter I turn to in the next section). Loughlin seems to collapse all three into one. In this way what is asserted to be a relation is returned as a monism—the monism of sovereignty as the representation of a relation between ruler and ruled, and indeed as the re-presentation of the political and the legal as one. Loughlin too readily associates sovereignty with law. He does this by arguing that the general will is given institutional expression through legal arrangements. Hence the sovereign will is not arbitrary and absolutist but legal (87). The sovereign may have the authority to make the law—in positivist terms law is the command of the sovereign. But, for Loughlin, the “constitution of authorityВ .В .В . is conditioned by law” (88). He starts from the position that sovereignty is an expression of the autonomy of the political. This autonomy manifests a political relationship that might be given an institutional/legal inscription in law. As with Hunter, what drives Loughlin’s analysis is a disavowal of any metaphysical grounds of law or sovereignty. Loughlin’s account of public law is heavily influenced by Hunter’s antimetaphysical move. The key figures in Hunter’s account of a rival Enlightenment are Samuel von Pufendorf and Christian Thomasius.49 His is an account of the state without recourse to a transcendent theological position, or to the post-Kantian position of a moral, ethical, or normative order independent of the state. Pufendorf is the guiding figure for theorists who promote an antimetaphysical and post-theological sense of public law. For Loughlin, drawing on Hunter’s scholarship, Pufendorf makes the “decisive break by severing natural law from theology and ethics.”50 This enables “politics” to be identified as an “autonomous realm” and “natural law is transmuted into droit politique” or “political right” (140). Departing from the Hobbesian primacy of positivePage 100 → law as the emanation of the sovereign will, Pufendorf’s natural law and Montesquieu’s fundamental law are seen as conditioning and maintaining an autonomous political realm (142). In determining the relationship between politics and morality, the autonomy of the political is given primacy: “Moral life cannot exist without economic and political life having first being established, and the ethical spirit is a vital aspect of political life” (145). Rejecting the Kantian categorical imperative as a transcendental law that can guide governmental authority and ensure civil peace, Loughlin sees public law as an

“expression of the immanent precepts of an autonomous discourse of politics” (145). The lack of an authoritative transcendental morality means that there is no resolution of incommensurability—between peoples, jurisdictions, or between ruler and ruled—to be found outside public reason. What then is the source of unification? In the end, and somewhat surprisingly, Loughlin reaches for the imaginary. We will have to proceed “as if” after all! It is “image” and “metaphor”—for instance, the image of NiccolГІ Machiavelli as the mapmaker for the prince—that takes the place of metaphysics. Moreover, this is an account of “public reason” as “reason of state.” Much is optimistically expected of raison d’état. It must promote the public good, have due regard to morality and justice, and prudentially adhere to law (149). If politics is guided by neither science nor metaphysics from where does the “prudential method” derive content? Politics is a practical activity whose judgments involve “analogical reasoning and a form of casuistry”: Although casuistry today has lost much of its respectability in certain circles, it remains an effective method of dealing with practical problems, especially those that involve conflicting obligations. Casuistry operates by applying old illustrations to new problems—a dialectic between paradigm case and novel circumstance—and creates a type of knowledge that is not easily generalizable. In so doing, it replicates politics itself. (152) Applying “old illusions” to “new problems,” the centrality of image and metaphor—all point to something other than the material, mundane, and contextual determining the outcomes of legal and political conflicts (recall Hunter’s point about colonial violence above). However, this is difficult to sustain when the overall orientation is away from metaphysical determinations. This antimetaphysical approach can be compared to critical legal history and critical legal studies. As Tomlins has put it, they are both forms of Page 101 →skeptical antimetaphysical modernism that adapts Weberian wheels to non-Weberian purposes, a disenchanting mode of historical analysis, that “strips [law] of its metaphysical dignity, unity, and coherence by exposing law as the outcome of mundane and profane processes and interests.”51 So antimetaphysicians like Hunter and Loughlin face a contradiction. They disavow metaphysics in order to get closer to “reality.” This is done to reveal the true determination of experiences, decisions, and events. But a metaphysical ghost haunts the contextualist. The fictional assertions of the sovereign remain inchoate. The imagery and symbolism of sovereignty assert a unity that is nowhere to be found. What law sees and does not see, what it recognizes, misrecognizes, or excludes becomes a problem of what there is in relation to law. This is an ontological question concerning the existence and relation of law and sovereignty. There persists, then, a need to account for the being of the sovereign authority that faces the problem of legitimation, and the being of the political community without which the singular subject would be a logical contradiction (you “cannot be alone being alone,” as Jean-Luc Nancy has put it).52 When Justice Gummow in Wik v Queensland was reaching for a taxonomy to account for the “shift” or transformation of the foundation of Australian law, what lay behind his anxious query was the being of colonial and postcolonial sovereignty. Was sovereignty capable of being altered, repositioned or reposited? The account that existed of colonial sovereignty before the Mabo decision had, it seemed, been altered. How is such an alteration possible when a fulsome foundational sovereignty is supposed to be immovable and indivisible? In what follows we will examine how the historiographical problem of law and sovereignty gives rise to an ontological question concerning the relation of sovereignty and law.

Undoing Sovereignty The first task in elaborating the being of sovereignty is to tackle its purported singular presence and plenitude.

Sovereignty, as we have observed above, is regularly expressed as wholly autonomous, indivisible, and illimitable. Sovereignty apparently gives itself to itself (ipseity). What traces of sovereign appearance and alteration provide insights into the ontological relation of sovereignty and law? In the opening pages of Rogues: Two Essays on Reason, Derrida refers to Page 102 →“The Wolf and the Lamb,” a poem by Jean de La Fontaine.53 This poem expresses the question “who has the ability, right or power to decide on the law,” and with what force. Derrida puts it like this: But just who has the right to give or take some right, to give him- or herself some right [droit] or the law [droit], to attribute or to make the law in a sovereign fashion? Or to suspend the law in a sovereign way?54 Schmitt has one of the most influential responses to this question in the modern tradition. He gives an account of the secularized theology of sovereign power, drawn from the “outer most sphere” of limit situations, as he called them. For Schmitt it was the sovereign exception that grounds and conditions a normative order.55 Sovereignty is a creature of the limit situation. Sovereignty determines limits, but is in movement within and outside a frame. In constituting a legal order, sovereignty is in movement toward a frame of reference, a normalized political condition. The illimitable sovereign thus moves toward and by way of a limit. It could also be said that the illimitable exists in and through a limit. As Derrida puts it, once the indivisible is divided, and the illimitable has been limited, sovereignty as the “undivided” and “unshared” becomes an impossible possibility. This is in contrast to the singular plenitude of sovereignty that is often asserted: Is it not the very essence of the principle of sovereignty everywhere and in every case, precisely its exceptional indivisibility, its illimitation, its integral integrity? Sovereignty is undivided, unshared, or it is not. The division of the indivisible, the sharing of what cannot be shared: that is the possibility of the impossible.56 What is crucial here is the insight that whatever divides—and the sovereign limit divides—also “shares itself” in this partition.57 The singular plenitude of the sovereign decision thus deconstructs itself at the “frontier” of the division it cuts.58 For Derrida sovereignty is at once indivisible and unconditional. As the indivisible it is absolute, complete, a sovereign plenitude. This sovereign plenitude is first figured as the “I” of the “I can”—or ipseity. In a moment I shall return to the undoing of ipseity, or the autotelic subject at the heart of the demos and its representation as sovereignty/democracy. As the unconditional, sovereignty is neither “as such” nor “as if”—neither constative nor performative. Derrida affirms the unconditional renunciation of sovereignty, but an unconditional renunciation of sovereignty that needs another Page 103 →sovereignty, perhaps. The unconditional is heterogeneous and rebellious but irreducible to law, power, or any “economy of redemption.”59 Ipseity is akin to auto in Greek. It is from ipse that one extracts the possibility of giving oneself law, or asserting self-determination. Democracy can only be imagined with the assertion of this ipse/auto—the autonomous, selfsame subject. Ipseity is also the condition of “being-together,” “living together”—because before the plural will exists, there needs to be the possibility of the singular—the auto or ipse of the self. This ipseity is at the heart of liberal ontology, and this is what is called into question by Derrida and Nancy. The possibility of an “I can” by myself, that is, this ipseity, is named in order to call it into question. This involves calling into question the “assembling” of the “resembling ensemble,” the simulacra of resemblance, the simulation that is the act of making similar (11). To say “I can” is the key condition of many liberal/modern concepts/practices (and some of these of course self-identify as having a classical Greek pedigree): possession, property, power, husband, father, son, proprietor, seigneur, sovereign, host, or master. Think, also, of the possessive individual from Thomas Hobbes and John Locke. There can be no sovereignty, no liberal democracy, not to mention all those social contract theories, without this notion of ipseity (11–12).

In modern accounts of democracy the individual, autonomous being becomes one with a “people”/nation, authorizes subjection to a sovereign, or holds sovereignty as one-of-the-many. Democracy is a force, a force in the form of a sovereign authority (as reason and decisiveness), and representation of the power and ipseity of a people. It is in this sense that Derrida’s trope of the “wheel,” at once violence, torture, and return, applies to democracy (13). In democracy power is not held by any one person, it is held by “everyone and no one.” But this “everyone” cannot be “anyone.” Recall the calculations the “who counts?” in all friendship and democracy.60 This demand for openness to “everyone” will come to undo democracy (as with democracy’s many auto-immunities, which I will not pursue here). The demand of “everyone,” as equal worth and freedom, is always already the undoing of democracy. The authorization of the exercise of power in modern democracy must constantly return to its source, its authorization. While the axiomatic of democracy as circle, sphere, ipseity, autos of autonomy, symmetry, homogeneity, semblance, and similarity, and God (which is the analogy in the American Declaration of Independence) are all ways of expressing the autonomy of the political, Derrida identifies the double bind within this tradition of democracy. Each of these elements are incompatible with, and clash with, the “truth of the Page 104 →democratic,” namely the other, heterogeneity, dissymmetry, multiplicity, the anonymous “anyone,” the “each one” (14). Sovereignty as the ipseity at the heart of democracy represents a stilling of an infinite order of time (even as patricide, regicide (17)). But this ipso-centric order, this autonomy of the political as democracy or other formations of community, undoes itself. The double bind of ipseity, the clash of the “I can” with the autonomy of “everyone”—in other words, the problem of “being-singular-plural”—can be taken up as the problem of all finitude through the work of Nancy. To recall our discussion above, the autonomy of the political is asserted by theorists like Loughlin as the manifestation of a political/legal relationship. Sovereignty is the re-presentation of this autonomy—one that in a Schmittian mode can be conceived as the preoccupation with the political and juridical limit of sovereignty. But sovereignty is neither a bounded unity nor an illimitable institution. I have transposed this question of the sovereign limit and the autonomy of the political into the internal undoing of all autos or ipseity in the democratic demand itself. Ipseity is both the condition and undoing of self-determination. I will elaborate this undoing of autonomy through Nancy’s thought on the finitude of being. In “The Inoperative Community” Nancy calls into question the possibility of an “absolute,” atomistic subject, as individual or state, which exists entirely “for-itself.”61 According to Nancy, the individual subject or “total State” cannot be “perfectly detached, distinct or closed.”62 Nancy sets out to establish that every finite, atomistic being, whether that is the individual subject or a state, implies a relation in its separation: A simple and redoubtable logic will always imply that within its very separation the absolutely separate encloses, if we can say this, more than what is simply separated. Which is to say that the separation itself must be enclosed, that the closure must not only close around a territory (while still remaining exposed, at its outer edge, to another territory, with which it thereby communicates), but also in order to complete the absoluteness of its separation, around the enclosure itself.63 The “limit” that marks the separation of a being (let’s say of an individual or state), in order to be absolutely separate, would have to be so thoroughly and “purely” enclosed that it would not communicate on its outer edge with the subject, territory, or space beside it. Such an absolute separation, Nancy argues, is impossible: “to be absolutely alone, it is not enough that I be so; I must also be alone being alone—and this of course is contradictory.”64Page 105 → The idea of a finite being violates itself to the extent that this finitude implies a separation that is at once a “communication” “withВ .В .В .” One cannot say what is “beside” (“withВ .В .В .”) finitude precisely because of the impossibility of “being alone.” In asserting its separateness, the absolute is undone by the “relation” (communication, community) to which “it” is exposed.65 The “relation” that this “communication” implies violates the “essence” (as “absolute”) that an “absolute” finite being asserts for itself. Finitude is impossible because being finite implies communication and relation. It is therefore in the “logic of the absolute” that “community comes perforce to cut into” the subject/being/state.66 It is this critique of

finitude that I wish to bring to bear on the “ipseity” of sovereignty as a discrete “event” that was discussed above. The critique of finitude elaborates the undoing of democracy, for instance, as the sharing of plural beings—the “everyone” cuts into the autonomy of the political built on the “each one.” For Nancy, “finitude itself is nothing.”67 It is not a ground, essence, or substance.68 Finitude is always a sharing. Nancy persistently makes the point, in several texts, that there is no “original or origin of identity”69 that takes form through “exclusion.”70 Rather than a self-sufficient being, or a being constituted by exclusion, Nancy proposes the original “dis-position” of beings.71 For Nancy, the “origin” of being is a “dis-position.”72 There is no purely delimited “outside” that grounds or constitutes being. I will briefly set out what Nancy means by original “dis-position.” Nancy approaches this question through an account of the origin that refuses an essential ground of being-incommon through reason or humanity—the appeal to “one-origin.”73 Instead, he proposes an ontology of origin where access to an origin is refused by its concealment in multiplicity.74 “We” can’t identify ourselves in or as the origin—“we” can only identify with it. Nancy refers to this as “originary coexistence.”75 To hazard putting this simply, I am a singular being among a multiplicity of other singular beings. I and each other “I” are originarily singular, but it is a singularity that is at once plural: the Latin singuli means “one by one.”76 The other of a singular being-origin is not the “essential stranger who is opposed to what is proper,”77 as in many constructivist accounts. The other of being-origins is “one of the two.”78 This “other” “is вЂone’ among many insofar as they are many; it is each one, and it is each time one, one among them, one among all and one among us all.”79 Each one is the other origin of us all because we cannot “be alone being alone.” I am, we are, singular plural. In this way the “beingwith” is never secondary to an origin.80 The origin itself is a coexistence of origins. The “origin” is not to be found “outside”Page 106 → being. This is essentially what is expressed in the phrase “being singular plural”: “The plurality of beings is at the foundation of Being.”81 Finitude appears, is exposed, and thus exists as communication.82 Finitude “co-appears,” “compears.”83 That is, finite being always presents itself together, for finitude always presents itself in being-in-common and as this being itself, and it always presents itself at a hearing and before the judgment of the law of community, or, more originarily, before the judgment of community as law.84 A finite, singular being (one that I take to be indicative of a monistic sovereign—that is to say, also indicative of the impossibility of such monism) presents itself, according to Nancy, before the “law of community” and “community as law.” What is this “law of community” before which finitude presents itself? What does it mean to say that finitude is “more originarily” presented before the “judgment” of “community as law”? The “law of community” connotes the ontology of “being-incommon.” Being-in-common is how finitude always presents itself. “Community as law” is the presentation, or the originary co-presentation, the co-presence, of finitude. There is no One origin. Nancy confirms this in a later reflection on the “The Inoperative Community,” when he claims that there has been, already, always already, a “work” of community, an operation of sharing out that will always have gone before any singular or generic existence, a communication and a contagion without which it would be unthinkable to have, in an absolutely general manner, any presence or any world, since each of these terms brings with it the implication of a co-existence or of a cobelonging.85 The origin is always already a co-origination. This is the law of community that Nancy refers to in “The Inoperative Community.”86 The “presence” of sovereignty is always already a co-appearance. Sovereignty is a relational concept that involves a “sharing” across limits. This offers one approach through which the “presence” of sovereignty can be called into question. Indeed, the very “place” of

sovereignty as unity and essence must be undone. Sovereignty is neither readily limitable nor is it infinite and illimitable. Sovereignty is in constant movement in relation to a frame or limit. That frame or limit is law. In our discussion here that limit has been marked by the difference between colonial and postcolonial Page 107 →law. Colonial law never achieved the plenitude and presence that had been asserted in its name. Law’s capacity to alter the account of the foundation of Australian law drew attention to the narrative and fiction—the “as if”—that grounds law. The formulation “now shown then to have been false” manifests the complexity of law’s archival function. Law inscribes its own history by narrating and reiterating the “as if” that grounds its jurisdiction. In the process, a contested colonial sovereign assertion—an origin of law that never took place as a singular event—is divided and altered. But it is only one account after all—yet another dissimulation of sovereignty that will return again to haunt the law. In that sense colonial legal history is not amenable to a redemptive account, or to a contextual account untroubled by contemporary ethical and political demands. The work of assembling the history of colonial violence requires more than a pragmatic assemblage of what can be usefully known or admitted now. The latter continues to form the limits of how courts deal with colonial sovereignty—shielded by the common law’s practice of deciding only what is before the court at a particular moment in time. Such a memorial process will inscribe forgetting along with the act of remembering. This is law’s “act of literature”—its “as if.” Assembling the archive (law’s memorial practices and history-work) opens new fissures and gaps that will in turn require a new imaginary edifice, new “as ifs” to be constructed. As soon as law remembers there will, it seems, be an impetus to forget. This forgetting will drive law’s archival future.

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4. Belongers ON 16 AUGUST 2012, the South African Police Service opened fire and killed 34 striking mineworkers at the Marikana platinum mine near Rustenburg in northeast South Africa. Over 70 striking miners were also injured in the shooting. Many miners had been shot in the back, and some a long way from police lines. The killings have been compared to the Sharpeville massacre of 1960, and the bloodiest episodes of police violence unleashed by the apartheid state. A police force controlled by a black-majority government of the African National Congress (ANC) unleashed deadly force on its people. The mineworkers had been striking with a claim for higher pay and better conditions. The National Union of Mineworkers, allied with the ANC, and the Association of Mineworkers and Construction Union, had also been vying for control of striking workers by using intimidation and violence. The National Union of Mineworkers was formed in the 1980s to fight apartheid labor laws. Its leader was Cyril Ramaphosa, the erstwhile ANC labor leader. At the time of the massacre Ramaphosa was a member of the board of Lonmin, the UK-based company that owns the Marikana mine. This combination of state violence, a political elite implicated as stakeholders in a privately owned mining industry, the interests of multinational mining corporations, and the post-massacre ANC statements to calm investors has left little to distinguish the “postapartheid” political order from the racial state of the 1980s. A “form of life” as citizen, worker, and striker whose equality, dignity, and right to life were laudably established in the post-1994 constitutional dispensation seemed all too readily extinguishable.1 The Marikana massacre highlights the extent to which black lives and political freedoms have been destroyed after a black economic and political elite had secured the reins of governmental power. The post-1994 constitutional order was meant to inaugurate an era of Page 110 →nonracial social and economic change. The political challenge in the early 1990s was to hold together a racially and economically divided society that had been founded on over three centuries of colonial violence and dispossession. The legal framework structuring this immense task was constitutional supremacy. This constitutional model of government was chosen in preference to parliamentary supremacy, which had been used and abused by the apartheid state. The tension between law and the political manifested in this decision on constitutional orientation continues to inform questions on what freedom and decolonization mean in South Africa. Parliamentary sovereignty had been associated with the excesses of the apartheid era. For this reason it was set aside and the expression of the sovereign will of “We, the people of South Africa” was contained and commanded by the Constitution. The majoritarian danger of political sovereignty was curtailed by constitutional supremacy with the intention of protecting minorities. However, the problem of what it means to decolonize sovereignty, the state, and its institutions did not retreat. The newly democratic Parliament of South Africa was at its inception emasculated by design.2 That this was a pact drawn up by an emergent black elite and their partners in the outgoing apartheid regime was criticized by those who sought more radical transformation. The new dispensation rapidly suffered from a crisis of democratic legitimacy. The complaint was easily made that at the very moment of democratization, a black-majority Parliament would have to subject its “sovereign” will to the Constitution and its guardians—the judges of the Constitutional Court.3 However, framing the problem as a choice of constitutional orientation can be a convenient distraction from the fact that a black political and economic elite failed to use the legal and political means at their disposal to bring about deeper transformation. Critics of constitutional supremacy need to point to redistributive initiatives that were actually curtailed or scuppered by the Constitutional Court. A less palpable reality is that a black political and economic elite eagerly joined the ranks of the dispossessors. Nonetheless, the post-1994 constitutional dispensation requires further discussion and interrogation. As with other constitutional orders, a founding fiction or constituent myth was given a prominent place in the Preamble of the South African Constitution and the jurisprudence of the Constitutional Court. The long struggle against apartheid and the 1996 constitutional dispensation were oriented by the assertion that “South Africa belongs to all who live in it” (emphasis added). This was an aspiration drawn from the ANC Freedom Page 111

→Charter of 1955. It was written into the Preamble of the Constitution of the Republic of South Africa in 1996. This postulate—this as if—was the basis for the nonracial compact that the ANC was keen to see inaugurated in South Africa. Instead of the alleviation of poverty, or the nationalization of the mines and a radical redistribution of property, a constitutional order was introduced that would seek to guarantee the equal citizenship of all South Africans. A bill of rights, which included the guarantee of social and economic rights, served to juridicalize political demands for equality and transformation. Above all, however, a mythic assertion of belonging was central to disavowing the past and inaugurating the future. The Marikana massacre should stick in the craw of anyone who asserts that “South Africa belongs to all who live in it.” South Africa, it would seem, still belongs to mining companies and their investors. A state governed by a black-majority government has shown that it will use lethal force against labor activists and demonstrators. The laudable phrase “South Africa belongs to all who live in it” seems like a “degenerate myth” in the sense explained by Frank Kermode—that is, a “ritualistic statement” or convenient fiction in the face of a state apparatus that is dealing death to others.4 However, as we will shortly see, the work that this essential myth or fiction of belonging must do has not ceased. The “as if” that “South Africa belongs to all who live in it” was central to archiving colonial sovereignty after apartheid in the sense we have been exploring: the fiction enabled the preservation of the fruits of violence in the hands of a minority, and the disavowal of oppression and dispossession at the same time. As we have seen already, archiving sovereignty involves this double move. The question remains, however, whether the constitutional mode of archiving the past can inaugurate new forms of social and political belonging. Belonging is by no means benign, and South Africa is not the only state grappling with race as the mediator of gradations of membership in a polity. In this chapter we will consider how the problem of belonging is being posed and addressed in the multiple registers of law, politics, and literature in South Africa.

Archiving Belonging Who is a belonger?5 A belonger is a person who may have a right such that they cannot be excluded from a territory by an act of sovereign will. Cognate terms might be “indigenous” or “native”—but “belonger” lacks the latter’s character of being from time immemorial. Belonger nonetheless captures a relation of time, memory, and place. It expresses the normative Page 112 →claim that a person who is a belonger should not be excluded or exiled from the territory to which they belong. The status of a belonger was addressed in the Chagos litigation examined in chapter 1. The Chagossians had contended that they could not be excluded from the territory of the Chagos Archipelago because they were “belongers.” In English common law, or so it was asserted by the Chagossians and accepted by a number of judges, a belonger has a right not to be subjected to immigration control.6 Lawyers for the Chagossians attempted to trace the right back to Article 29 of the Magna Carta. They argued that a belonger should be immune from exile or deportation. This line of argument was not ultimately successful in the Chagos litigation, but it did yield some judicial recognition of the status of a belonger. Belonger is a concept that I extend here to a range of questions concerning the archive of colonial sovereignty in South Africa. South Africa is grappling with who is a belonger and the juridical and political conditions of that belonging. Archiving the past and inaugurating the future is, as we will see, a pressing legal and political problem. From the Marikana massacre to the anticolonial demand that “Rhodes Must Fall,” the conditions of black belonging and white belonging remain in question. The urge to decolonize South Africa has outgrown its “postapartheid” containment in the Constitution. Nonracialism is teetering on the brink of collapse. Whether in anti-immigrant xenophobic violence, or rhetoric that white South Africans don’t really belong in South Africa, a racial logic of belonging is threatening what was always a fragile political compromise. The postapartheid transition was built around memorial practices. The constitutional dispensation and the Truth and Reconciliation Commission were, in this sense, both archival instruments that attempted to gather the past in order to inaugurate a future. The assertion that “South Africa belongs to all who live in it” attempted to

gather different communities with a conflicted past into one people. The colonial antecedents had not receded. The relationship between memory and belonging continues to be a terrain of contestation. In this chapter we will consider the juridical, epistemological, and ontological archive of belonging. What would it mean to become a belonger? What are the archives of belonging? “South Africa belongs to all who live in it” was a constitutional and political premise that became the subject of spirited contention in the recent case of City of Tshwane Metropolitan Municipality v Afriforum.7 The case is symptomatic of the new constitutional dispensation: a legal order cathected through symbols—where little else but signs seem capable of decisive change. In Afriforum the Constitutional Court considered the Page 113 →constitutionality of an urgent interim injunction that restrained Tshwane Municipality in Pretoria from removing street signs. The signs in question bore the names of what Chief Justice Mogoeng (with whom the majority of judges agreed) described as colonialism and apartheid’s heroes and heroines (para. 4). The municipality had removed and replaced interim signs that bore crossed-out old street names alongside new street names, replacing them with new signs bearing the names of the “heroes and heroines of our struggle for justice” (para. 7). Afriforum, a nongovernmental organization specifically focused on advancing the rights of Afrikaners “as a community living on the southern tip of the continent,”8 complained that due process and consultation had not preceded the change in street signs. Moreover, the removal of the old signs, Afriforum claimed, infringed their constitutionally protected right to “culture” in accordance with section 31 of the Constitution.9 Culture, belonging, and their “signs” were thus put in direct relation and contention. Afrikaner “culture” cannot be reduced to the names of the jacaranda-lined streets of Pretoria. Nonetheless, what was at stake in this case was whether the Afrikaner minority, with a history steeped in colonial dispossession and apartheid oppression, should continue to have a place in South Africa. That law can be a tool for cultural contestation—and sometimes an overused one—cannot be doubted. The Afriforum case, as Justice Cameron (in dissent) pointed out, involved no less than 19 judges from the High Court to the Constitutional Court declaring judgment on the names of street signs.10 While the South African Constitution guarantees the right of all cultural, religious, and linguistic communities to belong, what aspects of the “history” of each community will be preserved or permitted to continue? The Preamble of the South African Constitution expresses the intent that it should function as an archive of colonial and apartheid violence.11 The preamble is itself an archival device, serving as memorial of the past and command and commencement of the future.12 Recognizing and eschewing the injustices of the past, and aspiring to a more just future, the preamble asserts that South Africa belongs to all who live in it. “We the people” intend to proceed “united in diversity.” But what aspects of this “archived” past must be preserved or disavowed in satisfying all this aspiration? For Chief Justice Mogoeng in Afriforum the path ahead was clear. The new society that South Africa aspired to be required that the signs, symbols, and celebration of the oppressive and colonial past needed to be removed. This was the only way for society to move ahead. The removal of Page 114 →the disavowed past would also enable the celebration of the struggle to overthrow apartheid: We also need to take steps to breathe life into the underlying philosophy and constitutional vision we have crafted for our collective good and for the good of posterity. That would be achieved partly by removing from our cities, towns, “dorpies,” streets, parks, game reserves and institutions, names that exalt elements of our past that cause grief to other racial groups or reopen their supposedly healing wounds. Also, by removing even some innocuous names that give recognition only to the history, language, culture or people of one race, so as to make way for the heritage and deserving heroes and heroines of the previously excluded. (para. 8) Steps taken for the “collective good” and the “good of posterity” would, as we will see, be objected to by the dissenting judges. Chief Justice Mogoeng also made it explicit that “belonging” involved the embrace of the underlying philosophy of ubuntu in the Constitution. The place of ubuntu in the new constitutional dispensation is contested. But no such ambiguity is permitted in Chief Justice Mogoeng’s judgment:

All peace and reconciliation-loving South Africans whose world-view is inspired by our constitutional vision must embrace the African philosophy of “ubuntu.” “Motho ke motho ka batho ba bangwe” or “umuntu ngumuntu ngabantu” (literally translated it means that a person is a person because of others). The African world-outlook that one only becomes complete when others are appreciated, accommodated and respected, must also enjoy prominence in our approach and attitudes to all matters of importance in this country, including name-changing. White South Africans must enjoy a sense of belonging. But unlike before, that cannot and should never again be allowed to override all other people’s interests. South Africa no longer “belongs” to white people only. It belongs to all of us who live in it, united in our diversity. (para. 11) In these opening paragraphs of Chief Justice Mogoeng’s judgment a central conflict around belonging is set out. History’s villains (the Afrikaners), as well as its “heroes and heroines” (blacks and whites who struggled against apartheid), are it seems known to the municipality. The municipality will be the “judge” of the past and what is good for “posterity.” That there were white heroes and heroines of the struggle is certainly recognized. But decolonization has racial fault lines. A white Page 115 →colonial history and its symbols must be removed to make way for the celebration of a black struggle, and a polity to which everyone belongs—provided, that is, that they are celebrating a constitutionally sanctioned history. The Afriforum group did their cause little favor by referring in their founding affidavit to the municipality’s change of signs as an attempt to address “so-called вЂhistorical injustices of the past.’”13 Afriforum claimed that the street signs they were seeking to protect from removal celebrated “historical figures of Pretoria, artisans, business people, surveyors who played a central role in the layout as it currently exists” (para. 120). The destruction of facts was in full swing when they suggested that these were “prominent figures in history (most have made their contributions long before the so-called apartheid) city fathers and legal practitioners (including attorneys, advocates, magistrates and even a judge)” (para. 120). While Justices Froneman and Cameron disagreed with Afriforum’s version of history, they nonetheless took the view that “Afriforum members’ sense of belonging, place and loss” were protected by the Constitution (para. 123). They argued that the “Constitution creates scope for recognising an interest or right based on a sense of belonging to the place where one lives, rooted in its particular history, and to be involved in decisions affecting that sense of place and belonging” (para. 124). For these dissenting judges, Afriforum’s sense of belonging, place, and loss are no less real, and no less worthy of constitutional protection (para. 123). The question of belonging raised in the Afriforum case gives constitutional expression to a wider political crisis concerned with decolonization in South Africa. The language and sentiments expressed by the majority judgment resonate with the arguments issued in favor of removing the statue of Cecil Rhodes from the University of Cape Town. Rhodes was a rapacious colonial ideologue. His statue seemed to reiterate the continuing power of the white gaze. The “Rhodes Must Fall” movement, which successfully campaigned for the removal of the statue at the University of Cape Town, saw in it a symbol of continued white privilege and domination. “#Must Fall” resonates beyond the issue of the Rhodes statue. What is sought, it seems, is the end of whiteness in South Africa. As Achille Mbembe put it, bringing Rhodes’ statue down is one of the many legitimate ways in which we can, today in South Africa, demythologize that history and put it to rest—which is precisely the work memory properly understood is supposed to accomplish.14 Page 116 →On Mbembe’s account putting “history” to rest is also a memorial act—an archival work. But what kind of memory is created by “putting history to rest”? Demythologizing history might be understood, as Chief Justice Mogoeng did, as diminishing white power. Removing the symbols of that power is one approach. The slated street signs of Pretoria and the Rhodes statue can be removed. But what in fact is undone by the removal of a statue or sign? An artifact of history and the power it represents can be wiped out. The danger, however, is that this political spectacle can come to take the place of decolonization. Rather than demythologization, a new mythology of the image is ushered in.

South Africans might more productively ask what it would mean to archive the images of violence by preserving them under erasure. The Rhodes statue might have been boxed-in, walled-up, distorted, encased in a countermonument or work of art. Colonial street signs might continue to exist, but with a line struck across them to symbolize memories and their continued inscription and adjustment. These erasures would not be a forgetting. Destroying archives repeats the gesture of securing sovereignty. To destroy the archive, as we observed in the previous chapter, is to forget the fact of violence.

Forgetting to Belong Forgetting is a dialectical process where something can be set aside (be filed away), preserved, and recalled at the same time. Belonging, being-with, involves the work of sharing these memorial practices. The Truth and Reconciliation Commission of South Africa (TRC) and its processes for issuing amnesty for political crimes were another mode of reinstituting belonging, being together, after a shared history of violence. However, rather than treating the archival function of amnesty as a form of memory under erasure, the Constitutional Court has shown signs of forgetting that its own foundation is in these memorial practices. Judgment, to the extent that it organizes and disciplines the relation of cause and effect, responsibility and reparation, is yet another site of the archive. The fact of punishment, or indeed amnesty, does not bring the problem of memory to a close. In cases of amnesty, pardon, or mercy law cannot fully contain the excesses of the original decision. The past stubbornly defies its disavowal and delimitation. Moreover, not all violence is aptly judged by law. The ripples of violence can return long after a sentence is declared or amnesty is granted. Judgment is thus a transhistorical problem. Law’s archival role is disclosed in the eternal return of the imperative Page 117 →to judge past actions or omissions. The South African Constitutional Court’s decision in relation to Robert McBride gives us an opportunity to consider the relationship between judgment and law’s archival of violence.15 In the 1980s Robert McBride was a member of Umkhonto we Sizwe (Spear of the Nation), the armed wing of the African National Congress. On 14 June 1986, he and other operatives carried out a car-bomb attack on Magoo’s Bar and Why Not Restaurant located on the beachfront in Durban, South Africa. The attack killed three young women and injured 69 others. They were all civilians. The attack was a departure from the ANC strategy of attacking inanimate targets such as strategic infrastructure or security and military facilities. McBride was convicted of murder and sentenced to death for his part in these attacks. In 1988 he lost an appeal against his death sentence. He later received a reprieve and was released from prison in 1992. As South Africa moved toward transition from apartheid, it confronted the problem of political crimes. Decades of state-sponsored brutality and violent resistance to apartheid had left people traumatized. Without knowledge of what happened to disappeared relatives and loved ones, the polity could not have a future beyond violence and retribution. The apartheid state, the ANC, and other combatants reached a compromise. It was a pact for peace that remains contested to this day. Rather than vengeance and retributive justice, South Africa attempted to become “reconciled” to its past—the verb more aptly describing what is at stake in “reconciliation.” In exchange for information about the “truth” of violent events, perpetrators would be granted amnesty provided the violence was shown to be politically motivated. The Promotion of National Unity and Reconciliation Act 1995 was a central instrument of that process. Section 20 (10) of that Act provided that once a person has been granted amnesty for an offence committed with a political objective, the conviction would be deemed not to have taken place: Where any person has been convicted of any offence constituted by an act or omission associated with a political objective in respect of which amnesty has been granted in terms of this Act, any entry or record of the conviction shall be deemed to be expunged from all official documents or records and the conviction shall for all purposes, including the application of any Act of Parliament or any other law, be deemed not to have taken place. (para. 49) McBride applied for amnesty in 1997 and was granted it in April 2001. In 2003 he became a candidate for head of

metro police in Ekurhuleni, one of South Africa’s largest municipalities. Page 118 →The Citizen newspaper opposed McBride’s appointment. In September and October 2003 it published articles contending that McBride was unsuitable for appointment as head of the police because he was a criminal and murderer, and had in 1998 been arrested on suspicion of gunrunning. An editorial of the newspaper read in part: Robert McBride’s candidacy for the post of Ekurhuleni Metro Police Chief is indicative of the ANC’s attitude to crime. They can’t be serious. He is blatantly unsuited, unless his backers support the dubious philosophy: set a criminal to catch a criminal. Make no mistake, that’s what he is. The cold-blooded multiple murders which he committed in the Magoo’s Bar bombing put him firmly in that category. (para. 10) McBride sued for defamation. South Africa has had to confront what many “transitional” societies face—the problem of judging past acts of violence as either contingent to the conflict and conditions of the past or foundational of the present and future. In what register, and from what perspective, will past acts, omissions, mistakes, or errors be judged in the present and future? What is at stake in characterizing McBride as a murderer and criminal? President Thabo Mbeki weighed in on the controversy. On 17 October 2003, he wrote to point out the nature of McBride’s actions as a form of revolutionary counterviolence: I do not know whether Mr McBride was ever or is interested to be Chief of Ekurhuleni Metropolitan Police. I do not know whether he has the competence to serve in this capacity. What I know is that it would be fundamentally wrong that he is denied the possibility to be appointed to any position, simply because of what he did during our struggle for liberation, for which he apologised and for which he was granted amnesty. (para. 13) Once McBride was appointed as police chief, the Citizen newspaper repeated its views in a manner that McBride claimed was defamatory and injured his reputation: We believe we performed a civic duty on September 10 by alerting readers to the possibility that Robert McBride could be named Ekurhuleni’s Metro Police chief. We said he was not the right person for the job. We maintain that view, as do a great many readers. But obviously a decision had already been taken. President Mbeki even devoted one of his lengthy Internet messages to Page 119 →defending McBride and attacking The Citizen. The bomber has support in high places, but that doesn’t detract from the evil of his multiple murders, or make him a suitable policeman. His appointment speaks volumes about the ANC’s attitude to crime. God help Ekurhuleni. (para. 17; portions alleged to be defamatory in italics) The law of defamation allows for the defense of “fair comment.” Was it a fair comment to call McBride a “criminal” and a “murderer” when the Reconciliation Act had specified that the grant of “amnesty,” at least in the South African setting, would see convictions “expunged for all purposes” and the “conviction would be deemed not to have taken place”? Is calling McBride a “murderer” true or false, is it a claim of fact or a (fair) opinion or comment? Much more is at stake in these questions than whether to adopt a literalist reading of a statute. Judging the concomitants of amnesty is in more than one sense a problem of archiving violence. Amnesty is a juridical form of state-sanctioned indemnity.16 In The Citizen v McBride the Constitutional Court of South Africa faced the problem of judging the limits of this indemnity. McBride had expressed regret for his actions and had been granted amnesty by the TRC. What was now at stake was how the law would retrospectively judge an act of counterviolence, one that the perpetrator had acknowledged was a mistaken one.17 The fact that the “event” of judgment had returned by way of an action on defamation was itself an indication of the fragility of the archival process. While McBride was not being retried for the crime in this instance, determining the consequences of

amnesty needed to consider the nature of that act in the context of the state system that was being challenged at the time, and the new state that was being inaugurated through the amnesty process. How are we to judge the political status of an act of violence? Does amnesty alter the status and character of the act of killing, or the perpetrator who committed it? For Justice Cameron the truth is a “compilation” of “collective memory” (para. 61). The interpretation of the statute urged by McBride hampers this collective compilation of the “truth” of the past. If the family of the victims and wider society are unable to characterize McBride as a “murderer,” then the reconciliation process, the truth of events gathered through the amnesty process, freedom of expression, the dignity of the bereaved, and the integrity of their memory would be undermined (para. 62). According to the Khulumani Support Group, a victims’ advocacy organization that intervened as amicus curiae in the defamation proceedings, the ability of victims and others to call McBride a “murderer” is central to Page 120 →the existence of “victims” and “perpetrators,” and to the fact that a “crime” took place: Khulumani has joined this case because the implication, if McBride wins, is to nullify the struggle of thousands of Khulumani’s members in telling the truth about their experiences during apartheid. It would mean that no one who received amnesty may be called a “murderer” or a “torturer.” Hence, members of Khulumani would no longer either be “victims” of crimes that no longer “exist”—just as the perpetrators would no longer be identified as “perpetrators.” This is silly, insulting and false. A killer is a killer, and the crime remains the crime. The fact that a perpetrator received amnesty cannot deny the very fact of the act. Amnesty simply means that the person’s conviction is removed, and he or she is no longer guilty in terms of the law. It cannot mean that the act never happened and that therefore the person is no longer a killer.18 It is true that amnesty does not result in the undoing of the act of killing, or the pain, injury, suffering, and death that it has caused. The question, however, is whether the fact of suffering and injury, including the status of “victim,” are heterogeneous to the crime and its moral and juridical status. McBride’s assertion that he should not be called a “murderer” is not dependent on denying that the car bomb he set off caused death, injury, and suffering. No one can deny that the crime happened or that victims exist. What are the conditions of victimhood? It would be too comforting to think that victimhood is a condition that has a single author.19 For the court, McBride was convicted for committing the crime of murder. But curiously, the meaning of “murder” does not depend, on the court’s view, on a criminal conviction. “Murderer” is an appellation of ordinary language that attaches to particular facts—although it also carries a technical meaning in law. Justice Cameron resorted to “ordinary language” to characterize murder as the unlawful intentional killing of another. Intentional killing as counterviolence in the context of apartheid did not feature in judging these actions as aptly characterized as “murder” or not. Instead, the court was keen to hold on to the reach and potency of amnesty—that it is not only convicted killers, but the secret operatives of the “deep state” that were lured to give information about unlawful killings. Convicted killers could not be given a benefit (of not being called a “murderer”) that was not afforded to those who were not convicted of a crime (who would, on this reasoning, be equally deserving of the appellation “murderer”) (para. 71). Page 121 →The implications of section 20 (10) of the Reconciliation Act had already been addressed by the Constitutional Court in Du Toit v Minister for Safety and Security.20 In that case a police officer who had received amnesty for a conviction asserted that he should be exempt from a statutory provision that would deem him to be discharged from the Police Service if convicted of a crime. The court held that amnesty “does not obliterate all the direct legal consequences of conduct in respect of which amnesty is granted.”21 Judgments in the Du Toit and McBride cases assert that there is no stable and uniform meaning to “amnesty.”

Justice Cameron in McBride surrenders the capacity to pass judgment on the “truth” of the past. His judgment emphasized the instrumental role of amnesty in the South African setting. Amnesty was granted to perpetrators of violence so as to extract the truth that victims and their families would need to engage in “national transition and reconciliation” (McBride, para. 55). Amnesty becomes the lure or enticement for truth-telling: The two decisions [AZAPO and Du Toit] set up signposts to the main questions before us. Each emphasizes the instrumental role of amnesty—it was not an end in itself, but a means to the end of national transition and reconciliation. They establish that truth-telling, as a means to these ends—and hence the offer of amnesty—lay at the base of the moral and operational structure of the TRC. They further establish that amnesty has no necessary meaning or intrinsic effect: its operation depends on history, context, and statutory wording. (para. 55) “Truth” is taken to be the “fact” of McBride’s conviction. If he committed acts of violence that resulted in a conviction of murder, that is the fact that constitutes the “truth.” This is the “true statement” (McBride is a “murderer”) that Justice Cameron sets out to uphold: “In addressing the legal consequences of conviction only, section 20 (10) does not presume to have linguistic effect, or to govern the discourse that arises from the conviction” (para. 60 and 73). But acts of violence that result in a conviction of murder are not simply historical facts with a stable linguistic meaning. There is indeed a wider discourse regarding a conviction for murder than what is literally stated in the statute on amnesty. That wider discourse must surely open the problem of judging past events as counterviolence and not simply as “murder.” Amnesty is a form of state-sanctioned indemnity. While Justice Cameron concedes that the operation of amnesty depends on history and context, he forgets that it was more than the instrumental nature of the statute that he Page 122 →was called on to interpret as a judge in this case. The judge is also an archivist. At stake in the McBride case was the archival of the process of violence and counterviolence that helped to usher in the postapartheid constitutional dispensation. Wider critiques of the TRC process can too readily dismiss it as an excessive concession to perpetrators; that it was driven by religious sentiments of forgiveness and redemption; and that it presented a distracting spectacle or “theater” to absorb the nation while justice was being ignored. There is some substance to each of these observations. But the TRC is not one thing. Despite the flaws of the TRC, it has been deployed as a “paradigm” of “transitional justice.” Critics of the TRC, however, rarely confront the fact that it was not only high-profile apartheid state-operatives that came in search of indemnity and redemption. There were also the unlikeable and discomforting revolutionary fighters who had done indefensible and regrettable things in the name of liberation. They too applied for amnesty. McBride was one such individual. A thorough critique of the TRC can be found in Adam Sitze’s The Impossible Machine.22 Delving genealogically into the juridical forms deployed in the TRC’s amnesty process, Sitze traces the roots of this power to Diceyan jurisprudence. A. V. Dicey’s theories of parliamentary sovereignty were transported throughout the colonies. “Indemnity” was the power to “legalize illegality” and the “kernel of incipient incoherence” that enabled the English Constitution’s embrace of the rule of law to be reconciled with imperial violence.23 At the time Dicey gave his lectures, indemnity had only been used in the colonies—from the Irish indemnity of 1798 to the Jamaican indemnity of 1867.24 As Sitze puts it, indemnity was not only a way of reconciling “sovereignty of law and the law of sovereignty”—it was also a “technique for reconciling imperial violence in the colony with liberal legality in the metropole.”25 Indemnity, where “necessity” is the amorphous measure for defying the prohibitions of ordinary law, is usually retrospective. The exception is explained after the event. But in apartheid South Africa the exception became the norm, and indemnity was prospective.26 The indemnity in the form of amnesty offered by the TRC is then “an indemnity to end all indemnities”: On this read the truly daring function of the TRC as a “mechanism” will have been its attempt to render a prior machine inoperative: not only will the TRC have explicitly condemned the apartheid state’s radicalization of the indemnification convention (which it did by criticizing the

“culture of impunity” that emerged within the apartheid state), but it also will have used the indemnificationPage 123 → convention against itself, displacing it with a new discourse on the desirability of extending forgiveness in the name of ubuntu.27

As Sitze remarks, the TRC may also have achieved none of this, and in fact may have relaunched apartheid-era indemnity jurisprudence.28 The future perfect will not have occurred. Sitze critiques the manner in which discourses of “catharsis,” tragedy, and juridical forms were melded into a “disjunctive synthesis of incomplete repetitions and insufficient differences, as an unstable composite of incommensurable epistemic demands” in the Truth and Reconciliation Commission of South Africa Report.29 The disjunctive synthesis is also traced through two literary texts, Antjie Krog’s Country of My Skull, and Greig Coetzee’s play, Past Imperfect.30 Sitze offers a reading of Country of My Skull as moralistic, deploying extramarital interracial sex as an allegory for apartheid’s many crimes against humanity.31 By narrating the TRC with an “innermost norm” that is “tragic,” Sitze claims that massacres were understood to be caused by the police and the multitude alike.32 This mimics the epistemic strategies of the apartheid-era Tumult Commissions—but where the latter would explain the “necessity” of violence to maintain an unethical order, the TRC narrated a “break in time” and “founding legends” to create a “new order” in a revolutionary tradition.33 In contrast, the lesser-known play Past Imperfect is praised for depicting the “scatological” dirtiness and messiness internal to “historical catharsis.”34 In the play a multiracial cast is gathered at the site of an automobile accident. The whites are riding in a BMW, and the blacks in a dilapidated taxi-van. As they are driving along they crash into a massive brown pile: they have encountered the SHIT of colonialism and apartheid that now needs to be cleaned up.35 Framed as an inquiry into “this shit,” the play is an allegory of irreconcilability. For Sitze: Hidden in plain sight of Past Imperfect, despite or perhaps because of the brilliance of its displacement of TRC’s sacralised tragedy with the desacralized energies of comedy, we find “apartheid itself,” not so much “passed” or “past” as transubstantiated. No longer racial capitalism, no longer a set of grand or petty social practices, no longer a body of law, no longer colonialism of a special type, certainly not an epistemic formation, apartheid now refers to nothing more than a generalized vile substance.36 Apartheid is then materialized as shit—a vile, uncivil material. It is “matter out of place.” Apartheid may be “out of focus” and “intangible” but it has Page 124 →the same capacity to contaminate the community that sought to distance itself from its uncivility. Sitze then takes a dramatic leap in his analysis: the community encountered in Past Imperfect is given a specific name, “ubuntu.”37 What Sitze has in mind is the seemingly incongruous sense that ubuntu shares something with the “law of sovereignty” associated with the apartheid state. He points to the strong influence of Roman law on South Africa’s apartheid jurisprudence—and especially the uses and abuses of the logic of Cicero’s maxim, salus publica suprema lex esto (“the safety of the state is the supreme law”).38 On this account, salus publica resonates with the more communitarian translations of ubuntu such as “I am because we are, and since we are, therefore I am.”39 Placing the community before the individual would, on one reading, enable the safety and security of the community to take precedence over the rights of the person. Such concerns with ubuntu carrying the potentially demagogic excesses of communitarianism are common. Indeed, Sitze cautions against imperial philology and ethnophilosophies that too readily seek to draw from “African traditions” to usher in postapartheid jurisprudence. Nonetheless, ubuntu did play a significant role in the transition to postapartheid constitutionalism. The contestation around what ubuntu “demands” in the new constitutional dispensation has not ceased—as evidenced in the strong exchange between Chief Justice Mogoeng and the dissenting judges in the Afriforum case. Archiving the violence of colonialism and the antiapartheid struggle continues to orient social and political conflict in South Africa. What it means for “South Africa to belong to all who live in it, united in its

diversity” remains a pressing question. At least some of the resources for addressing this question can be found in the mythopoetic narratives offered by Antjie Krog. In the discussion that follows I offer my own reading of Krog’s richly layered work of literary nonfiction, Begging to Be Black, and set this alongside an examination of the onto-episteme of ubuntu in the philosophy of Mogobe Ramose.

Becoming Black Antjie Krog is a celebrated South African poet who was born in Kroonstad and grew up on a farm in the Free State. While her poetry has been translated into many languages, she gained significant international prominence among critical theorists following her work with a team that covered the TRC hearings for South African Broadcasting Corporation Radio in 1995. She later brought her formidable literary skills to bear on transmittingPage 125 → the power of the testimonies at the TRC to a wider international audience through her book The Country of My Skull.40 She conveyed something of peoples’ trauma in that book, but importantly also the limits of addressing this through testimonies before commissions, strained apologies, or seemingly cathartic spectacles of forgiveness. This was followed by A Change of Tongue (2003), which combined fact and fiction to explore how South Africans were living with the legacies of apartheid, its traumas, but also the beauty and anxiety in what has slowly emerged over time—the Afrikaans language, food, dramatic landscapes with layers of agriculture, and mixed and divided communities.41 The challenge of becoming different after apartheid is captured in the title A Change of Tongue. Language is one contested and complex site of becoming. The Constitution guarantees eleven languages, but English is in the ascendance. In some cases the rise of English only serves to sustain white enclaves, crowding out members of the coloured community who speak Afrikaans as their first language. The rise of English over Afrikaans, partly a result of globalization, is also due to the fact that few South Africans have bothered to learn Sepedi, Sesotho, Setswana, siSwati, Tshivenda, Xitsonga, IsiNdebele, IsiXhosa, or IsiZulu across the boundaries of their respective communities. Beyond language, what Krog has been concerned with is the question of what it means to become different across racialized lines of community when continued coexistence demands transformation. Addressing that question is at the heart of Krog’s book, Begging to Be Black.42 It is significant that the title of Krog’s book about “becoming black” carries the somewhat shocking title of “Begging to Be Black.” The title provokes varied responses: how can this privileged white woman pretend to cast herself in such a “needy” light; whites have everything, now they also want to be abject! Does the title appropriate an experience of oppression that white people can never know about; or is it a willed submission from a place of plenty, or “identity suicide”? I read the title more generously as invoking a passivity and necessity that moves away from a strong sense of subjectivity or judgment. Begging opens a relation of gifting. But as I suggest below, it is not an identity that is being sought, but rather it is an attempt to share an onto-epistemology of becoming. Begging to Be Black explores the possibility of white people becoming otherwise, belonging differently, in South Africa. The project of “becoming black” eschews any essentialist meaning to being “black/white,” colonial/postcolonial. Those who hold to a notion of race as a substance with presence in the world will tend to misunderstand this Page 126 →book. This is not to deny that racial logics produce real and actual consequences in the lived reality of those with racialized bodies. Nor is there a suggestion that a movement toward black can be (or ought to be) replicated with a move away from black. We should by now be well past the time when race is treated as having such a substantial essence. However, racialism is a stubborn formation, and not one that is redeemed because it is deployed in the name of black liberation. Begging to Be Black is a work of literary nonfiction. Krog weaves several narrative strands together: the murder of a gang leader shot by ANC cadre in 1992, her own involvement in the case after the killers hid incriminating evidence and the weapon in her home; an account of the Boer and English land grabs of the 19th century in what is now Lesotho told through the encounter between the Besotho King Moshoeshoe and French missionaries; Krog’s visit to the Wissenschaftskolleg (Institute for Advanced Study) in Berlin; more intimate reflections contained in letters to her mother while in Berlin; and Krog’s visit to Lesotho. Each of these strands is placed

in conversation with the other. Krog is experimenting with the genre of literary nonfiction where past and present, inner thoughts and outer events are folded into each other. While each strand of Begging to Be Black might be treated individually as the recounting of actual events, their being placed beside each other constitutes a mythopoetic narrative. The reader is drawn into that powerful imaginary space where characters and events across time and space speak to each other. Begging to Be Black is a mythopoetic narrative where a world is imagined where King Moshoeshoe, missionaries from the 19th century, Antjie Krog and her friends and colleagues, ANC cadre, the Deleuzian philosopher Paul Patton, Krog’s husband J., Nelson Mandela, Archbishop Desmond Tutu, and the ANC Youth League are placed in the same narrative space where they might intermingle. And this is done to respond to a crisis of the present—the difficulties South Africans face in grappling with the legacies of colonialism and apartheid, and the fact that there is a process of un-homing and re-homing that Krog feels white South Africans in particular need to think more deeply about. Although facts are recounted, the form of the text produces a powerful as if. The consciously false, the as if, is the composition of a conversation across time and space. Krog’s Begging to Be Black charts a disorientation brought about by a new political dispensation. This creates the conditions for drawing out insights and examining errors and failures of perception. She can then address moral and political dilemmas raised in the narrative Page 127 →to find that her own line of thinking needs to be altered in order to face up to a philosophical and existential un-homing. Each character, each position and perspective, is put into question in their intermingling with others. This approach to history takes seriously the fact that it is narrative that constitutes the relation between past, present, and future.43 The liminal space between a colonial order and a postcolonial future can only be grasped through the beings that occupy it. It cannot be opened by legislation, or inaugurated in a founding document such as a constitution, even though law and its origins might be born of this liminality. Liminality is a lived condition that presents itself in the everyday existence of ordinary and extraordinary people. Krog occupies this space herself when she confronts tough choices, dwelling in the in-between space of dishonorable safety (reporting to the police) and dangerous possibility (going beyond the humanism that has previously authorized critical judgment). But more important, she draws out this liminality through two other central figures who populate Begging to Be Black—King Moshoeshoe of the Besotho, and Petrus, a character in J. M. Coetzee’s novel Disgrace.44 Moshoeshoe’s story is drawn from the past to circulate in the present, while Petrus is here now (albeit in literature), but his story and the conditions for its telling are yet to come (I return to discuss Petrus below). Moshoeshoe was a Bosotho king who united numerous tribes to withstand the onslaught of Boer and English settlement, as well as the killing sprees of Shaka, Manthatise, and Mzilikazi. He enters the records of Western history in June 1833 when EugГЁne Casalis, a young missionary of the Paris Evangelical Missionary Society, arrives in his kingdom. The diplomatic strategies and techniques of government Moshoeshoe developed to unite his people, and to grapple with Boer and English land grabs, disclose flexibility and openness. Moshoeshoe’s struggle was to understand and inhabit the terrain of shifting sovereignties—to remain true to his own ancestral spirits and customs while preparing himself and his people for the colonial onslaught. Moshoeshoe occupied and negotiated a liminal space. By juxtaposing the stories of Moshoeshoe’s encounter with the missionaries and colonizers with her own encounter with the postapartheid transition, Krog confronts the dilemma of finding a new sense of being in a place that never was home. This is a relatively unique problem where the descendant of the erstwhile colonizer unhomes herself in the new dispensation rather than retreat to the safety and security of the European metropolis, or proceed to disavow the morality, ethics, and abilities of the Page 128 →new rulers. Canadian, US, and Australian settler-descendants can experience and learn from this enterprise of being un-homed, of becoming-minority. As Krog puts it: I want to be part of the country I was born in. I need to know whether it is possible for somebody like me to become like the majority, to become “blacker?” and live as a full and at-ease component

of the South African psyche. (93)

The conditions for this need not be a choice between African or Western philosophy. Krog sees it rather as a mingling or entanglement of roots—a “synapse” (95). However, philosophies are not so easily deployed or readily set aside. Krog moves between the story of Moshoeshoe, whose conversion to Christianity was the much-sought-after prize of successive missionaries in the 19th century, and her own personal dilemma of being un-homed in South Africa. Though she does not explicitly make the connection, Moshoeshoe and his people, and Krog and her people, the Afrikaners, confront the dilemma of living with an Other in power. Though Moshoeshoe never converted to Christianity, he encouraged his people to do so, and took advantage of the education about Western values and practices that the missionaries brought with them. Krog folds the story of Moshoeshoe with that of her own ambivalent support for ANC cadre in troubled and violent times. How is one to understand and figure the postcolonial present when one wants to appreciate both Richard Wagner and Moshoeshoe, the freedoms of the Berlin academy, and the mountains of Lesotho? Becoming minority, in a Deleuzian sense, is marked in both Moshoeshoe’s and Krog’s individual fates. Christianity, colonialism, liberalism, and ubuntu—each secures the limits of what one might become. But they also constitute the ground from which Krog is becoming otherwise. Let us turn, then, to the problem of becoming-minority, becoming black, as the possibility of the emergence of a critical being capable of challenging both African and Western philosophical and political paradigms. Beingbecoming is an epistemic and ontological problem at the heart of decolonization and transformative politics. Krog has responded to the urgent need to transform ways of being beyond juridical and institutional transformations by elaborating what it would mean for an Afrikaner woman such as herself to “become black” in multiple senses. Although she makes much of “interconnectedness” in Begging to Be Black, there are very few explicit references to ubuntu. And despite her disavowal of European Page 129 →philosophy, and being conscious of having a white, male philosopher as her primary philosophical interlocutor in the book, she relies very heavily on a Deleuzian theory of becoming. It is thus apt to provide some suggestions on ways of directly engaging ubuntu and the implications of this for anticolonial struggle and postcolonial thinking.

Past Perfect Sovereignty In Conscripts of Modernity: The Tragedy of Colonial Enlightenment, David Scott focuses on the narrative form in histories of anticolonial struggle—especially C. L. R. James’s treatment of the Haitian Revolution of 1791–1804 in his magisterial work, The Black Jacobins (1938). Scott makes many incisive observations—a key one being that narratives of the past are often told with the priorities of the present in mind. James’s account of Toussaint L’Ouverture’s heroic struggle against French imperialism and slavery was told with mid-20th-century decolonization as the near horizon. It was thus a work of anticolonial longing. Scott’s point of departure is that we should move away from anticolonial longing and examine the relationship between past, present, and future as historical conjunctures constituted by different “conceptual-ideological problem spaces.” The conceptual-ideological problem space of the anticolonial struggle is one that is concerned with sovereignty and national liberation. Mogobe Ramose’s philosophy of ubuntu is caught between this anticolonial struggle for sovereignty (as his conceptual-ideological problem space) and a postcolonial potential that his own account of the philosophy of ubuntu conveys and opens. The anticolonial longing is for the recovery of the “lost” sovereignty of the indigenous conquered people of South Africa. Nonetheless, his philosophy discloses a fluidity—the possibility of movement toward another, more just dispensation. The recovery of what I am calling past perfect sovereignty is Ramose’s condition for a new and just dispensation. However, the “conceptual-ideological problem space” presented by the problem of belonging and sovereignty—one that both Krog and Ramose confront in their own ways—is worth interrogating further.

Mogobe Ramose begins his essay “In Memoriam: Sovereignty in the вЂNew’ South Africa” with a prayer.45 For Ramose, speaking of sovereignty in South Africa is a requiem mass—a gesture that marks a death. He asserts the need to resurrect a sovereignty that has been buried, displaced, and misrecognized. Ramose refuses to allow the “lost sovereignty” of all peoples conquered in the “unjust wars of colonialism” to remain a memory. Recovery and restoration are claimed as the twin exigencies of justice and as the Page 130 →“necessary means to the construction of peace in South Africa” (311). The process of decolonization, in Ramose’s view, is not yet concluded, and certainly was not achieved through the elimination of apartheid and the guarantee of civil rights since April 1994 (319). While those who pushed a compromise in the early 1990s argued that they were averting a civil war, Ramose’s claim is that since colonization South Africa has been “practically in a state of war” (320). In his view it was gullible and misleading to think that apartheid was the fundamental problem. This is why freedom was reduced to the guarantee of fundamental rights (320). The morality and political legitimacy of the colonial “right of conquest” was left untouched by the post-1994 dispensation. Ramose thus challenges the reasoning that asserted, from the Freedom Charter onwards, that “South Africa belonged to all who lived in it.” We might then conclude that for Ramose decolonization involves the recovery of a past perfect sovereignty. A postconquest South Africa, Ramose argues, must attend to the failure to recognize that the sovereignty of indigenous communities has been deprived through an illegitimate war and usurpation. Abiding by community in African culture—the “interconnectedness” that Krog refers to—requires that the three dimensions of the living, the living dead, and the yet to be born are taken to be the critical ethical concern. Thus the survival of customary kingship, and the memory of the heroes and heroines who fought against colonialism, requires that parity—horizontality—be restored between the “indigenous conquered peoples” and that of the successors in title to the questionable “right of conquest.” For Ramose, the “reaffirmation” of such “horizontal reasoning” is a necessary condition for a genuinely autochthonous constitution (326). Here the challenge to Krog’s approach to becoming black is a stark one. It says that “if you want to establish genuine parity between yourself as colonizer and the indigenous population, then return sovereignty to the colonized.” The institutional expression of this would be parliamentary sovereignty rather than the constitutional supremacy that South Africa adopted in 1994. For Ramose the denial of parity and “authentic liberation” took at least two forms: the subordinate status accorded to Indigenous, Bantu, or customary law in the Constitution of the Republic of South Africa (1996), and the racial ideology that converted parliamentary supremacy to constitutional supremacy in the transition to a postapartheid legal order. For Ramose: UbuntuВ .В .В . represents the epistemological paradigm that informs the cultural practices, including the law, of the Bantu-speaking peoples. Excluding Page 131 →it from the constitution is tantamount to denying the Bantu-speaking peoples a place in the constitutional dispensation of the country. The current Constitution is, therefore, not the mirror of the legal ideas and institutions of the indigenous conquered peoples of South Africa. It follows then that a truly South African Constitution is yet to be born. On this reasoning, Act 108 of 1996 [the Constitution], has, perhaps inadvertently, set the stage for the struggle for a new constitutional order in South Africa.46 Examining the move to constitutional supremacy ushered in by the new Constitution of 1996, Ramose asks why the turn to “colour-blind” majority rule engendered fear of a black constituency. The reason behind the conversion from parliamentary to constitutional supremacy, despite the principle of antiracism in the constitution, is “racialist thinking”: “The fact that the conqueror considered the black majority as a race, coming into the constitutional process, was itself racialist thinking.”47 There was an irrational racialist fear that the putative “black race” would have unanimity on all matters and thus threaten all “other” interests if they were granted legislative or parliamentary supremacy. Parliamentary sovereignty—and the consequent threat of majoritarianism—was dealt with by the introduction of constitutional supremacy. Rather than signaling the return of sovereignty to the colonized population, the terms of the transition from apartheid to postapartheid is viewed by Ramose as yet another inscription of a colonial racial logic. The case that epitomizes the postapartheid constitutional dispensation is AZAPO v The President where the

families of victims of the apartheid state’s violence, including the family of Steve Biko, challenged the constitutionality of the TRC’s capacity to grant amnesty for political crimes.48 Why should the state avoid responsibility for tortious claims arising from the actions of its agents, as the applicants in AZAPO claimed? According to the court the state can either compensate the victims of killings, torture, and other violations of human rights or state funds can be directed toward the social and economic well-being of the living and of future generations. For the Court the negotiators who brought into being the Constitution could have chosen to saddle the state with liability for claims made by insurance companies which had compensated institutions for delictual acts performed by the servants of the state and to that extent again divert funds otherwise desperately needed to provide food for the hungry, roofs for the homeless and black boards and desks for those struggling to obtain admission to desperately overcrowded schools. They were entitled Page 132 →to permit the claims of such school children and the poor and the homeless to be preferred.49 The new democratic order, according to the Epilogue to the interim Constitution, would be a “reconciliation between the people of South Africa and the reconstruction of society.” It is worth paying attention to this account of reconciliation. This is not a reconciliation between previously conflicted polities, colonizer and colonized, or between the beneficiaries of apartheid and the disenfranchised of that system. It is not reconciliation of a fractured society coming together to form a unified whole. It is not a restoration of a lost sovereignty. To the extent that sovereignty is archived at the instance of transition from apartheid to postapartheid, it is the remembering, the reconstituting of a polity that did not exist. It is a case of becoming reconciled to what will be forgone when amnesty is granted for political crimes, when property rights are guaranteed despite the unjust conditions of accumulation, when redistribution will be balanced with social and economic stability. And so reconciliation must be understood through its verb—to become reconciled to a particular liberal constitutional project. It is not a reconciliation of the law of the conqueror and conquered, or of their respective and multiple philosophical traditions. Indeed, the status of ubuntu philosophy is such that it might even be said, as Ramose has argued, that the “struggle for reason” in Africa remains. If reconciliation is to be the restoration of sociality, then we must still ask, what is being restored? What is this sociality? Krog’s intervention in Begging to Be Black must be read in this contested setting where embracing “interconnectedness,” ubuntu, or being-becoming black is articulated in terms of recovering sovereignty as a mode of establishing political and epistemic parity. There is an anticolonial longing in Ramose’s thinking that is tied to concrete demands about democracy, customary law, and parliamentary sovereignty. Here the distinction that Scott draws between anticolonial longing and postcolonial becoming is a useful one. I want to suggest that becoming postcolonial cannot hinge on the recovery of a “lost sovereignty.” Nor can it be achieved by replacing imperial sovereignty with indigenous sovereignty in some past perfect form. I am interested in the fragmentation of the sovereign “I” or unity. My sense is that both Ramose’s and Krog’s thinking contain the resources for postcolonial becoming. What does it mean to “become black” in a terrain where a past perfect Page 133 →“original sovereignty,” as Ramose claims, is still in contention? In Krog’s work “becoming black” is a mode of contending with being colonial, being white, being Afrikaner. It adopts the Deleuzian orientation of “lines of flight” where a discrete subjective agent is undone by a being whose becoming is minoritarian. This process of becoming is signified by “becoming minor”—and, by extension here, “becoming black.”50 The discussion of Deleuzian lines of flight takes place between Krog and the Australian philosopher Paul Patton, while both are visiting at the Institute for Advanced Studies in Berlin. Krog sees writing as a process of “becoming towards” what she is trying to understand. Patton explains that this is akin to what Gilles Deleuze means by a “line of flight” (92). In a line of flight, [o]ne moves from an established known identity by transforming oneself. But transformation always moves in a particular direction and writing is often the best way to trace these directions. Expressed in

different words: the aim of good writing is to carry life to the state of non-personal power. (92)

Liminality, exposure at the margins, being in-between—all these terms explain the kind of understanding that Krog is trying to reach by exploring the possibility of “becoming black.” She is clear that she is neither seeking an essential identity nor a difference. What she seeks is a framework of understanding—acknowledging what she perceives as a shift from Western and European frameworks after the end of apartheid. The question is whether the “sanctity of whiteness” or its philosophical extensions can be undone at the level of “understanding”? And can the vulnerability of the “black body” ever be understood? Such an understanding, if it were possible, would be very distinct from living that vulnerability. In their discussions Patton explains to Krog that what she seeks might be achieved through the capacities of an affective being. Krog might become an “inter-individual assembly or assemblage” who has the capacity to affect and be affected by the “other side of the pact” (101). Listening to stories is the device that Krog suggests for moving toward such a pact: Stories have different characters and threads and plots; they leave space for variety. Stories are boundary crossings, making it possible to move, justifying different kinds of behaviour and also behaviour that is not necessarily justified—no single line holds things together, because the spaces contain contradictions in which one variety is as valid as the other. (101) Page 134 →In listening to stories in order to become Krog opens a liminal space. Liminality is the space of a movement, contact with an outside, un-homing and re-homing at the same time. Like a harbor, it is a space from which to depart and return. But in what language will these stories be heard and told? Krog reminds us of those powerful words from Coetzee’s Disgrace where David Lurie remarks that Petrus’s story cannot be told in English. Perhaps the deepest opacity of the South African condition is revealed in the story that is not yet told—Petrus’s story. The key to becoming a belonger in South Africa is for the space to be created for Petrus’s story to be told and heard. At present Krog’s book is dedicated to Petrus, it is for him—but it is still about Krog’s becoming rather than his. This is, then, the most opaque of liminal moments, a vanishing point at which Krog’s text deconstructs itself. Petrus may tell his own story in his language. These stories are already being told. The difficulty may be that the community that must share in this telling is circumscribed by the politics of language in South Africa. How will stories told by black people enable access to becoming-minor, generate the affective feelings across assemblages, if English dominates and becomes the medium for truth in South Africa? Despite these distortions, what Krog is starting to hear is the communal ethics that guides the actions of black South Africans. So there is not only a postcolonial voice but also a postcolonial listening in Krog’s book. Toward the end of her conversation with Patton in Berlin Krog is asked whether she is writing a novel. She insists that she is not. Why so, Patton asks, when she could explore the inner psyche of characters—imagine being black, for instance? Krog responds that she does not want to give up on the “strangeness” that can be preserved in nonfiction. It is a strangeness that is not invented: “The strangeness is real, and the fact that I cannot ever really enter the psyche of somebody else, somebody black. The terror and loneliness of that inability is what I don’t want to give up on” (267). She goes on to state that at this stage, for her, “imagination is overrated” (268). Krog then says that “to imagine black at this stage is to insult black. That is why I stay with non-fiction, listening, engaging, observing, translating, until one can begin to sense a thinning of skin, negotiate possible small openings at places where imaginings can begin to begin” (268). Krog’s objective is to draw on the onto-epistemes of Bantu, and Western philosophies, as well as oral and literary traditions. In a philosophical register, her inquiry is into ways of constituting a decolonizing “sense of being.” The verb “decolonizing” rather than “decolonized” is significant here. “Decolonizing” signals the ongoing, and possibly endless, task of undoing colonial legacies.

Page 135 →It is at this juncture that it is useful to read Ramose’s account of ubuntu against his anticolonial longing for a recovered past perfect sovereignty. It is clear from Ramose’s account of ubuntu that “wholeness” of society should not be read as stasis or fixity. If anything, what is clear about the concept of be-ing in ubuntu is that “Ubu-” is “marked by uncertainty” because it is “by definition motion involving the possibility of infinite unfoldment and concrete manifestation into a multiplicity of forms and organisms.”51 “Ubu-” expresses the notion of “be-ing in general,” the widest generality of being.52 “Umu-” shares a similar ontology, but is more specific. “Umu-,” joined with “-ntu,” umuntu, marks the emergence of homo loquens and in “common parlance means the human be-ing: the marker of politics religion and law.”53 The inquiry into being, experience, knowledge, and truth is conducted by umuntu—but this is “an ongoing process,” an “activity rather than an act.”54 Hence “ubu-” is regarded as “be-ing becoming.”55 This is crucial to our inquiry. It implies a notion of be-ing as incessant motion.56 Umu-ntu/ubu-ntu in incessant motion can then be expressed with the emphasis on the “verbal” rather than the verb “–ntu.” Ubuntu is then a “verbal noun”—that is to say, in grammatical terms, it is a “gerund” (“a form of verb functioning as a noun”—in English ending in -ing and used with a verb—OED).57 This is a disruption of the regular Western opposition between being and becoming. “Be-ing becoming” places the emphasis on motion, and is thus against the fragmentation of being.58 The association of “being” with order and “becoming” with chaos is broken by the “flow” (the Greek verb, rheo) of “be-ing becoming.” The general view is that the “apparent structure of language determines the sequence of thought.”59 As language breaks the silence of be-ing, “be-ing becoming” must be understood in and through the “rheomode” language.60 This has implications for how the legal subject is conceptualized, and can be explained at that more concrete level. The logic of ubu-ntu follows that of a rheomode language, which places emphasis on the gerund (the verb functioning as a noun—the “–ing” in be-ing), and opposes the “subject-verb-object” linguistic structure.61 Of course this linguistic structure, which privileges the name/noun as the acting moving subject, has been undone by many philosophers, including by Derrida in his work on the “trace” that marks and exceeds the appearance of all signification, as well as in his deconstruction of the metaphysics of “presence.” These insights are incorporated by Ramose.62 The “subject-verb-object” structure asserts an ontology where subject/object are distinct entities and the verb acts as mediator. It is in this way that what Ramose terms the “fragmentation of be-ing” takes place. It is through this ontologicalPage 136 → structure that Western legal thought attributes rights and duties to the “nounized legal subject.”63 Ramose’s account of law through ubuntu articulates a shift from the “noun” to the “verbal noun,” the gerund.64 This task is comparable to Derrida’s attempt to undo ipseity—the impossibility of the “self-same,” the “I can, ” or auto-nomy.65 The whole-ness that the philosophy of ubuntu is supposed to inspire is thus not the absolute “law of sovereignty,” community-as-law, or communitarianism. Rather, whole-ness through ubuntu is the recognition that be-ing is not fragmented as the subject/noun “be!” as it is in (some) Western ontologies.66 Ubuntu philosophy undoes the abstract human subject of Western legal thought.67 It does so by decentering the nounal subject from the fragmentation subject/object. African law is law without a centre since the legal subject here is an active but transient participant in the be-ing, that is, the musical flow of law.В .В .В . Ubuntu law is not only the ontology of the do-ing subject. It is contemporaneously the epistemology of the discern-ing subject continuously harmonising the music of the universe. In this sense, ubuntu philosophy of law is a dynamology. Law here is thus dynamic because it is in the first place rheomodic.68 The subject is then not obliged to live “within the law,” as with the Western legal subject, but to “live the law.”69 The object of law inspired by ubuntu is to maintain equilibrium.70 Ubuntu thus provides a mode of becoming otherwise that will not guarantee individual freedoms at all times as the liberal philosopher demands. According to Krog ubuntu promotes a mode of interconnectedness that is at the heart of the great deeds of men like Mandela and Tutu. The danger with interconnectedness and equilibrium is that the sense of community promoted through these discourses may be conflated with race. The challenge is to avoid a

new racialism when identifying with being black.

Literature as Archive The archive of sovereign violence that Krog and Ramose both seek might be understood to contain a form of nostalgia. Their various deconstructive, un-homing, and re-homing strategies may also be understood as counterarchiving gestures. To the extent that they don’t settle for accepting the current constitutional, ethical, epistemic, or ontological dispensations, Krog and Ramose take us to the limits of archiving sovereign violence. Indeed, in Karin van Marle’s words, we might say that they open the experiencePage 137 → of the counterarchive as “countering the archive, or archival countering.”71 How will such a counterarchive avoid the dangers of nostalgia as the recovery of past perfect sovereignty? Jacob Dlamini has explored the problem of nostalgia in South Africa. In Native Nostalgia, he argued that people are more certain of what they expect from the future than what is to be made of the past. The past is a time out of joint.72 Dlamini is highly critical of the “corruption of black history” and “nativism” that seeks to reductively treat all black South Africans as living, struggling, and suffering in the same way against apartheid. The line between resistance and collaboration during apartheid was a fine one. As Dlamini puts it, the “ANC anti-politics machine” is developing a highly homogenized sense of black South Africans with a “racial nativism” that glosses over local histories and lived differences under apartheid.73 Dlamini writes of a journey to recover the local, variegated, and nuanced history of Katlehong, the township in which he grew up. He is trying to hold on to the fact that despite the apartheid regime and all the indignities that it visited upon him and his family, he had a happy childhood. He is also trying to contend with the uncanny “nostalgia” of a black person who might say “things were better under apartheid.”74 There is an un-homing in the present when referring back to a past that was both homely and un-homely. Svetlana Boym’s excellent study of nostalgia considers how the concept combines the Greek words for “return home” (nostos) and “longing” (algia).75 Appropriate to the range of notions encapsulated in the term, it was a word constructed by a medical practitioner in the 17th century to deal with a range of ailments that were identified as presenting a “sickness” of missing home.76 It was not a word coined by the Greeks. Boym distinguishes between two types of nostalgia—restorative and reflective. Restorative nostalgia is focused on nostos and is constituted by notions of truth and tradition and is a transhistorical construction of a lost origin or home.77 A past perfect sovereignty resonates with this restorative sense of nostalgia. Reflective nostalgia, on the other hand, thrives on the algia, is ambivalent, and does not focus on arrival at a definite place. There is a rich tale of modernity folded in with these two senses of nostalgia.78 Modernity is inscribed through notions of “tradition” and “revolution.” “Tradition,” Boym points out, means both handing down (delivery) and betrayal. “Revolution” means both cyclical repetition and rupture: “Hence tradition and revolution incorporate each other and rely on their opposition.”79 Transformation in South Africa confronts this modern crisis: an ambivalence about whether the task ahead is to Page 138 →recover a past perfect sovereignty or produce a new formation. Recovering the past and departing from it at the same time is a consistent problem in archiving the past. Take the structure of Marlene van Nieker’s novel Agaat.80 There is no linear unfolding of time but a heterogeneous temporality that challenges any sense of “home” in that colonial formation called “a farm in Africa” (recall also Karen Blixen’s Out of Africa). Agaat is an epic novel traversing the era of apartheid from the early 1950s to the new constitutional dispensation in 1994. The narrative centers on two characters, Milla de Wet, a white woman who inherits a farm called Grootmoedersdrift, and her coloured servant, Agaat. Each chapter of the novel is structured like a triptych—moving the reader in time from the present to the past, and through several narrative voices. There is the first-person voice of Milla who initially presents as a sovereign “I.” But this consciousness present to itself is split (in that creaturely sense articulated by Santner) by the narrative voice that speaks of Milla in the second person. There is also the third voice of the poetic inscriptions in Milla’s diary.

This heterogeneous time is also spatialized. There is the liminal space of Milla’s death chamber. We first encounter Milla as she lies paralyzed from the motor neuron condition, Charcot’s disease. It is the time of transition to the “new South Africa.” It is also the time of transition in Milla’s farm. Milla is being cared for by Agaat, and unable to communicate other than by the movement of her eyelids. But there are other spaces on the farm as we are moved back and forth in time, and question each narrative voice. Each chapter moves us between Milla’s death chamber and a narrative that stretches back to 1947 when Milla meets and marries Jak. The period covered by the novel is roughly that of the duration of apartheid. The narrative is then a coemergence of Milla and Agaat as a product of colonialism and apartheid, but in the everyday intimacy of the sexed and gendered home on a farm denuded by the green revolution. Milla’s death chamber is also the space in which we encounter Agaat as the survivor and inheritor of the farm. We learn about Agaat’s character, her unsurpassable skills as a farmer, as manager of labor and of the household, and as Milla’s caregiver. Milla’s and Agaat’s fates have been intertwined, but with Milla’s death a new regime of life will commence—the farm and household with Agaat as head. The space of Milla’s death chamber is then a liminal space in which two beings co-emerge, and a new order is inaugurated in their co-belonging. It is their co-belonging and the centrality of liminality for the process of decolonization that I wish to explore further. Page 139 →Questions are often posed about what is imagined and disseminated in literature, and by whom, in the context of postapartheid South Africa. There is of course the question of whose inner life the reader has access to in this novel—is it the white farmer Milla, or is it also her servant, Agaat? And why are we even bothering with this particular colonial setting—the “not quite white” farm? What are the implications of these questions for the relationship between literature and politics? The regular objections include that literature is an elite form of art and expression; the most celebrated South African writers are white; why discuss a farm novel rather than a township novel? Why focus on the being and becoming of white characters when so many black South Africans live in abject conditions and make little or no appearance in literature? How are these objections to be addressed? In one sense Agaat might be regarded as yet another farm novel written by an Afrikaner author. The farm novel (plaasroman) was a genre in which the colonial and apartheid conquest of territory was imagined and mythologized. A key myth of Afrikaner nationalism was of the Boer farmer—masculine, hardworking, Calvinist—resisting British colonial expansion and rule by driving his cattle and people over forbidding mountain ranges and making an inhospitable land productive. The fact that this independence from the British, and conquest of territory, was achieved through the dispossession and slaughter of the indigenous populations encountered by the Boers is seldom a feature of the archetypical farm novel. It is in this respect that van Niekerk’s Agaat is a profound reversal of the classic farm novel. One mundane but nonetheless significant feature of this is the close focus on farming techniques; on how the industrial and mechanized farming methods of Milla’s husband Jak are observed to denude and destroy the land. Despite Jak’s ambitions and pretensions, his strength and athleticism, and despite his violence against Milla and hostility to Agaat, his will and vision are broken and flawed. The careful attention to farming techniques in the novel—those of Milla and Agaat contrasted with that of Jak—is a powerful metaphor that displaces one of the founding myths of Afrikaner nationalism and apartheid. It places women, gendered relationships, the strategies of agricultural mass production, and a diverse range of farming practices at the center of tensions on the South African farm. Most significantly, it is Agaat, the coloured maid, servant, and worker, who is at the heart of what unfolds between all other characters in the novel. Agaat is found by Milla in 1953 as a neglected and sexually abused Page 140 →child who can barely speak. She has a malformed arm, possibly caused by an antenatal injury. She is first brought into Milla’s home as a child—a substitute for the child that Milla and Jak have been unable to conceive. But when Milla later gives birth to her son Jakkie, Agaat is moved to the servant’s room and is assiduously trained as a maid and farmworker. But Agaat’s potential and powers surpass all Milla’s training and designs. Agaat becomes the friend and confidant of Jakkie—closer to him than his parents would ever be. She observes the truth behind Milla’s marriage—Jak’s violence, Milla’s contrivance, and the suffering of beings without love.

In the everyday recesses of farm, home, love, marriage, and parenthood, van Niekerk has opened the possibility of a deep reflection on the corporeal and material conditions that constituted the violence of the apartheid order. Agaat delves into the intimate crevices of an apartheid-era home, and charts the co-dependence and co-emergence of a white Afrikaner woman and her coloured servant. Despite the commanding ambitions of farm owners, agricultural production was only possible because of servants and workers. This is a trite observation in any colonial context. What is crucial, however, is that it is not only the production of vast material disparities through the extraction of the surplus value of labor that marked the apartheid-era farm. The farm was the site for the fashioning of forms of life. Humans, animals, soil, grasses, crafts, furniture, music, language, and writing were produced within the farm. There is no life fully graspable or sayable to be found in Agaat. There is no absolute abandonment, bare life, or a life that can be fully apprehended. In Agaat, in writing, is a trace, a memory of coorigination. That co-origination of Milla and Agaat is a fundamental challenge for a nation-state, a “people, ” that now grapple with what it means for colonizer and colonized to coexist. The communication and communicability that Agamben sees as the key to a “form-oflife”—“communication not of something in common but of communicability itself”—is at the heart of Milla and Agaat being-with each other.81 The dying Milla can only communicate through blinking her eyelids to iterate the letters of the alphabet. Milla clings anxiously to language, to her mutual history with Agaat, and to the potentiality of memory. Agaat reads the code. As Milla says (but only through Agaat’s reading): It’s going too slowly. I think too fast. I only get the odd word out. WВ·HВ·Y AВ·RВ·E YВ·OВ·U OВ·N TВ·SВ·CВ·EВ·NВ·E SВ·O SВ·OВ·OВ·N AВ·T EВ·VВ·EВ·RВ·Y DВ·IВ·SВ·AВ·SВ·TВ·EВ·R WВ·OВ·NВ·DВ·EВ·R AВ·BВ·OВ·UВ·T YВ·OВ·UВ·R TВ·RВ·UВ·E Page 141 →CВ·OВ·LВ·OВ·UВ·RВ·S SВ·IВ·CВ·K CВ·OВ·MВ·FВ·OВ·RВ·TВ·EВ·R FВ·IВ·RВ·E EВ·XВ·TВ·IВ·NВ·GВ·UВ·IВ·SВ·HВ·EВ·R SВ·LВ·IВ·MВ·E KВ·NВ·OВ·CВ·KВ·EВ·R DВ·IВ·SВ·TВ·RВ·UВ·SВ·T DВ·EВ·VВ·IВ·L (402) It is only possible for Milla to communicate because of Agaat’s reading of the movement of her eyelids. What is communicated is a questioning of Agaat’s true motives. What is at stake here is not commonality between Milla and Agaat, then, but the space of a traversal in which the past is reinscribed and questioned. This is also the space in which the present and future is invented through Milla and Agaat being so intimately with each other. What it means to belong in South Africa remains a highly contested problem. The constitutional compromise of 1994 is heavily strained under the weight of a resurgent identitarian politics. If anything is a sign of the homelessness of the protagonists, this is it. In this regard South Africa is not so different from many other postcolonial states in the world. The unresolved challenges of decolonization, democratic legitimacy, economic redistribution, and racial and gendered violence are too readily collapsed into one question: Who is proper to this place? As an approach to decolonization and justice, nothing could be more mistaken. Just as fictions have been central to sustaining legal formations, the novel can be a source of thinking of new ways of being with each other. Stephen Clingman draws attention to the way Tshepo, the main character in K. Sello Duiker’s novel The Quiet Violence of Dreams, who has lived a marginalized life, finds a home among the Makwerekwere, the term used by South Africans to refer to foreign Africans who face xenophobia and extreme violence.82 For Clingman, fiction explores the unresolved in what appear to be our resolutions; to that extent, it relays the degree to which our story is always an unfolding narrative. Fiction takes the boundary—between people, between peoples, between the self and itself—as the space of navigation, and among other things what is encountered there is the still unresolved, unfolding story of who we are and what we might become.83 There is then no definite time and place of belonging. The simultaneous emergence of self and other means that the narratives of being together must remain revisable and unresolved.

Returning to Agaat, as Milla approaches her death, her life is recounted, Page 142 →reassessed, relived. In the process of this re-treatment and retrieval another Agaat and another Milla emerge. They are not fully known or formed subjects. There are other stories to be written, other narratives to be told. For now what is crucial is that Milla and Agaat have shared, are sharing, a world. The co-inscription of communication is at the origin of this world. They are both, in and through each other, belongers.

Page 143 →

Epilogue Archival Futures IN THE PREFACE I set out my points of departure so it is apt that I return to the un-homing and reorienting of thought that has emerged in the course of this work. I returned to Sri Lanka in June 2009, a few weeks after the civil war had drawn to an end. It would take several visits to reorient myself in what had been my island home as a child. Several archival associations were opened to me in these journeys. There were the usual questions that may be posed through the discourse of transitional justice: How are the claims for reconciliation, reparations, restitution, and the return of displaced persons to be addressed? These are important questions, but they did not mature into my primary concerns. Instead, I reflected on how memory eludes us and how we are necessarily unclear about what is being buried, repressed, or postponed. With this realization came the feeling that it is still too early to understand the implications of the violence in Sri Lanka, just as we are a long way from apprehending the suffering of Chagossian exiles, or those incarcerated by Australia in its island-gulags. Something fundamental is at stake. I began to imagine what future generations would make of the extreme violence that had unfolded in Sri Lanka. What took shape on my return visits was the sense of a need to imagine an archival future—but one that resists the all too human desire to make another History. In one of the most evocative journeys I made after returning to Sri Lanka, I traveled overnight by bus from Colombo to Jaffna soon after the north of the country became more accessible. The railroad tracks destroyed during the war were yet to be relaid for the famous Yal Devi intercity train. The overnight buses had become the main transport link for people returning to Jaffna to visit family and friends. It was about 3 a.m. when the bus I Page 144 →was traveling in pulled up to the Vavuniya military checkpoint that served as a gateway to the heavily militarized north of the country. While soldiers looked over the passengers and their belongings, it became clear that I was the only person on the bus who was without Sri Lankan identity documents. While I waited outside in the makeshift building for the army officers to examine my documents, I listened for the engine of the bus from which I had disembarked to restart and leave without me. I was the only person to have left the bus, and could easily have been missed in the darkness of these early hours. Among an array of anxieties, I worried that the bus might be ordered by the military to leave, but I also imagined M, whom I was traveling with, intervening on my behalf. When I finally returned to the bus and made my way to my seat there were smiles and nods from otherwise stoic people. Their glances made me feel foolish, but also gave me the sense that other narratives were possible for this place. Yes, we had different official documentation but they were patient and concerned for me. I was a fellow traveler, removed from a bus by armed soldiers in the middle of the night. The bonds that opened up to me that night were not necessarily ones of history, identity, ethnicity, language, or community. Back in 1983 we had been saved by individual courage in the face of mob violence. And now there was this sense of shared compassion, concern, and care. What was evident to me that night was that a gesture, the ethics of waiting for the other, can renew social ties. Dawn broke over Elephant Pass as we continued our journey to Jaffna. A narrow corridor of land that opens to the Jaffna Peninsula, Elephant Pass is a place of tremendous beauty and the site of epic battles due to its strategic significance during the war. The morning light revealed signs on either side of the road warning of landmines. The tall palmyra trees came into view but they stood bereft like beheaded sentinels. I was told that these trees had their tops blown off as the army feared they would conceal snipers. Spindly trunks were all that was left of these iconic trees of the north. I wanted these trees to speak, and wondered how the memories of these bloody decades would be gathered. Thousands of Tamils from the north were detained in camps after the war as the Sri Lankan military attempted to “sanitize” the population of the rebels. How can tribunals or truth commissions address the suffering of those detained, tortured, or displaced by the war? A violent past without an archival future risks the persistence of individual pain and collective trauma. On that night bus to Jaffna I reread W. G. Sebald’s The Emigrants. It warns of what comes with silent suffering. At some point, even at a very advanced age, witnessing

and surviving can become too much to bear. Page 145 →In Archiving Sovereignty legal histories have been spatialized through dialectical images assembled from the Indian Ocean region. These fragments of law, sovereign violence, and time thwart the sense that there can be an end-time to imperial power. They reveal the need to chart another postcolonial “heading.”1 The political form of the postcolony has persistently been taken from a Euro-imperial formation of national sovereignty. As I have revealed in the studies in this book, the history-work of law in the Chagos Archipelago, Australia, and South Africa has not managed to depart from imperial sovereign formations and the conception of community through an exclusionary nationalist project. Now, as ever, another postcolonial heading is needed. The memory boom that I began with has seen a profusion of files, archives, and the history-work of law. The proliferation of contested pasts coupled with the persistence of archaic forms of sovereign violence suggests that we remain gripped by the power of the archive. An archival future is ever present and awaits us. The rise of right-wing populism is now a global phenomenon provoking a return to national sovereignty as the dominant juridical and political horizon. The conditions of nationalism redux are often attributed to a crisis of globalization: alienation caused by the rapid dismantling and relocation of industrial production to sites of cheaper and less regulated labor, the reassertion of cultural chauvinisms in response to “identity politics,” and the pluralism of cosmopolitan elites. The return to sovereign autonomy—or sovereign solitude as I have articulated in this book—is the key marker of yet another “crisis” discourse in law, politics, economy, and society. The assumption is that the ravages of global capitalism can only be brought to an end by a return to greater national control of sovereign borders. The sense of a pure, detached, autonomous, self-sufficient form of sovereign solitude as antidote to “end-times” is, as I have argued in this book, a phantasm. I have suggested we should eschew both the incessant assertion of “crisis” and the sense of a proliferation of “endtimes.” Every time the law asserts a linear unfolding of time, the past interrupts and persists. This is especially evident in the stubborn return of Crusoe and Friday in the Chagos cases. Law’s history-work turns out to be a reinscription of forms of violence that are supposed to be fading with time. Each attempt to wipe the slate clean—to “purify” sovereignty and law—produces another archival instantiation. Sovereign violence manifests itself through processes of legal iterability. The eternal return of sovereign violence and its legal inscription points to the nature of the relation between history and law’s archival function. The possibility of purification in law is a long-standing fable—an as Page 146 →if. As Cornelia Vismann pointed out, the apparent purification of the law was already under way well before modern laments about the passing of the scrivener.2 She reveals how recording technologies of late Roman antiquity, the move from scroll files to codex files, gives rise to a concept of law that is not a response to messy human problems with “unruly records,” but a “stable legal foundation” and “imperial inventory.”3 When in 535 Justinian orders the East Roman chanceries in the Greek-speaking communities to employ Latin as their language, he was seeking to codify Byzantine practices according to a Western heritage. He was chasing the “old jurist’s dream, ” as Vismann puts it, of “a closure of the law which puts an end to the volatile proliferation of files, the vision of the completion of the law in a single codex that once and for all regulates what is to be regulated and provides a complete overview over all the movements of files.”4 This is the phantasm of a pure law not disrupted by a multiplicity of memories, fragmentary inscriptions, and their respective files. In the final chapter of Vismann’s book she refers to Anselm Kiefer’s sculpture, The High Priestess, which is composed of a series of lead books on two large bookshelves named Euphrates and Tigris. As Kiefer’s books are so large, heavy, and made of lead, they are unusable: “The immobile tomes are their own tombs.”5 The symbolic power of Kiefer’s lead files, books, or tomes is that they bear the weight of the unbearable. They enact the inaccessibility and unspeakability of contemporary German history. Kiefer’s lead books are described by Vismann as “archaeological monument,” “aesthetic monument,” “unreadable tomes,” and “icons of writing and literacy.”6 This unusable archive is at once a monumental memory-sign as well as enacting a statement about the unpresentability of history. The sculpture opens the question of what might be entailed in a future unusable history. As a manifestation of unresolved

violence, it is a powerful image that at once manifests memory and foreshadows the demise of an archival future. In The High Priestess the past and memory are inscribed cartographically (with reference to the Euphrates and Tigris Rivers).7 A mythopoetic narrative starts to emerge where time-space is united.8 This sculpture offers a path to what has become inaccessible and unspeakable after catastrophic events. As Armin Zweite puts it, in the lead cases of books time is “held in suspension and transformed into a coordinate of space.”9 These files, books, or tomes are the site of a memorialization. As Zweite explains, Kiefer’s sculpture might be seen as Fig. 1. Anselm Kiefer, Zweistromland—The High Priestess (Mesopotamia—The High Priestess), 1985/1989. 500 Г— 800 Г— 100 cm. Approximately 200 lead books in two steel bookcases, with glass and copper wire. (Copyright Anselm Kiefer. Courtesy of Astrup Fearnley Museum of Modern Art, Oslo. Photograph by Uwe Seyl.) Page 147 →an attempt to trace time seen as history—laden as it is with human experience—back to eternal time, and indeed to abolish it. The metaphors of decay in the work, its tendency to translate time into spatial terms, its cyclic structure, and the way the lead books may go on forever, all seem to confirm this.10 The idea of History is abolished. This is a transition into posthistory. Kiefer’s revolt may be linked to a concept of an epoch when humanity, in order to ensure its survival, desists from any further “making of history” in the sense in which humans have made it from the beginning of the first empires.11 While the unification of time-space, and the abolition of a history immediately made present to the senses. is asserted, memory is nonetheless present and spatialized in Kiefer’s sculptures and epic landscape paintings. An artist whose work resonates with and extends many of Kiefer’s concernsPage 148 → by addressing the problem of history, memory, time-space, and the legacy of violence and displacement is the Sri Lankan Tamil artist T. Shanaathanan. In 2009 he worked with the Tamil community in Vancouver to create an installation titled Imag(in)ing Home. He engaged with a community usually identified as the “Tamil Diaspora.” “Diaspora” is a troubling term. It is derived from the Greek for “dispersion” or “scattering”—invoking the sense of being cast away from a central or ancestral place. Diaspora immediately invokes a loss of home, even though people have remade and inhabit homes, or treat “home” as a set of relationships or associate it with everyday objects and experiences. “Home” is then not a spatially or temporally secure object. This opens a question about the site and limits of home, and the objects and places that are identified with it. Shanaathanan pushes at the limit of these objects and places. The site of home is thus reimagined and reconfigured, disrupting the conventional nostalgia of “loss of home” as well as the constraints of being in the diaspora. In Imag(in)ing Home Shanaathanan asked over three hundred Tamils in Vancouver to identify an object that represents their narrative or idea of “home.” Each object was then displayed in a transparent container in rows of shelving. This placed the various objects in circulation with each other in a formalized space that resembled a museum or laboratory. Like Kiefer’s tomes this installation placed time in suspension in a “coordinate of space.” The objects representing home were placed in relationship to each other in a museum-like display. The objects in their plastic containers appeared frozen and isolated as if they were in jars of formaldehyde solution. Rather than restoring the memory of a time-past, they marked a traversal of space—invoking distance, inspection, surveillance, isolation, and being together, which are all markers of displacement. In Svetlana Boym’s terms, the artwork was an instance of reflective rather than restorative nostalgia.12 As Boym has explained, modern nostalgia is captured in Nietzsche’s idea of the eternal return and “Alpine forgetting,” as well as in Benjamin’s “angel of history.”13 What these poets of modernity tried to contend with was the fact that despite our self-creating modern subjectivity, we cannot move beyond memory and forgetting. Our will cannot recover the unfolding of time, the unrepeatability of experiences. We cannot stop the debris of history’s disasters accumulating, or intervene to put it right. There is a profound homelessness in this condition of modernity, and a nostalgia for a past that cannot be recovered. Instead, we must

go on, marked by fleeting encounters, able to recover stories and snapshots of the past, frozen, like Benjamin’s Angel, on the threshold of past and future.14 Boym’s suggestion is that rather than seek transcendence or linear progress, we adopt Page 149 →an understanding of time as heterogeneous. She suggests a notion of “off modern” art (thus not pre-/postmodern), which, through the adverb off, looks aside and offstage.15 The modern poets tried to disavow nostalgia as we entered the 20th century (though not fully or successfully). But for anyone who has lived through catastrophes or suffered exile, there is a crisis of home that calls forth a nostalgia and critical “off modern” modernity. This “off modern” modernity and attitude to nostalgia is a feature of Shanaathanan’s art. Fig. 2. T. Shanaathanan, The Incomplete Thombu. (Courtesy of the artist and Raking Leaves.) In The Incomplete Thombu (2011), we see Shanaathanan more explicitly deploying the file, book, or tome as the spatialization of memory. The Incomplete Thombu is an art book. The source of its title is explained as follows: “According to Winslow’s Tamil dictionary, also called the Maanippaay dictionary Thombu (Thoampu) is a public register of lands. The word Thombu is derived from the Greek word tomos, meaning a section, most likely of papyrus, which gave rise to the Latin word tome or large book” (back cover, The Incomplete Thombu). In creating The Incomplete Thombu Shanaathanan spoke to Tamil-speaking people who had been displaced from their homes from Jaffna and Page 151 →surrounding areas during the 30-year civil war in Sri Lanka. He began by asking them what “home” means to them, and encouraged them to draw a ground plan of their home while they spoke to him. On the face of it this begins to look like a recovery of memory—an ethnographic or bureaucratic endeavor to recover stories of displacement and loss. But it is far from that. The informant’s drawing of the ground plan of their home, farm, temple, bunker, or village becomes the event of spatialized memory. The registration of this memory is unstable as it moves across the overlay of architectural rendering, hand drawings of ground plans of home, individual narrative, and the artist’s representation of the informant’s story. Rather than contingency and context, the event of recounting a memory of home is staged in multiple representational forms that from the outset defy the possibility of a linear history. Page 150 → Fig. 3. T. Shanaathanan, The Incomplete Thombu. (Courtesy of the artist and Raking Leaves.) Fig. 4. T. Shanaathanan, The Incomplete Thombu. (Courtesy of the artist and Raking Leaves.) The narratives that Shanaathanan recounts in The Incomplete Thombu have no formal consequence. No governmental authority will respond to or compensate the displaced people who have given an account of their loss of home. The art book as register has no juridical consequence in the sense of a state’s land register. The drawings of floor plans are not like the cadastral maps that enable a market in land, and enable its governance and regulation. The house or home spoken of is not a recoverable object. The Incomplete Thombu points us in the direction of an archival future. The everyday stories point to harms and losses that cannot be hypostatized. Their retrieval is made possible by the creation of an “off modern” mode of representing topography and memory, space and time. My suggestion is not that formal juridical claims or demands for justice should be abandoned. It is rather that we seek an “off modern” position when assembling the archive. In concrete terms this means eschewing ethno-nationalism and sovereign autonomy when constructing and accounting for the empty place of power.

Page 152 → Page 153 →

Notes Introduction 1. Andreas Huyssen, Twilight Memories: Marking Time in a Culture of Amnesia (Abingdon: Routledge, 1995), 9, 14. 2. For a discussion of “end-times,” see David Scott, Omens of Adversity: Tragedy, Time, Memory, Justice (Durham: Duke University Press, 2014). 3. Svetlana Boym, The Future of Nostalgia (New York: Basic Books, 2002). 4. Michael Hardt and Antonio Negri, Empire (Cambridge: Harvard University Press, 2000). 5. Antonio Negri, Insurgencies: Constituent Power and the Modern State, trans. Maurizia Boscagli (Minneapolis: University of Minnesota Press, 1999), 1. 6. See Hannah Arendt, On Revolution (London: Penguin Books, 1990). Arendt’s comparison of the American and French Revolutions is the usual point of departure for examining the contrast between the institutionalization of constituent forces and the effort to maintain open rebellion. Arendt pointed to the violence and terror of the French Revolution in preferring the American compromise. Negri and others have criticized Arendt for celebrating the liberal consensus, and for her strong rejection of the problem of necessity in the constitution of social and political life. Social contract theory and constitutionalist thinking from Jean-Jacques Rousseau and Carl Schmitt to JГјrgen Habermas may be understood, then, as promoting a “sophism of sovereignty” masked by a definition of “constituent power as crisis” (Negri, ibid., 20). Negri draws on an alternative modern metaphysics from NiccolГІ Machiavelli, Baruch Spinoza, and Karl Marx to propose an account of constituent power that remains opposed to a concept of sovereignty as the end expression of democratic forces (ibid., 28–29). See also Emilios Christodoulidis, “De-politicising Poverty: Arendt in South Africa,” Stellenbosch Law Review 22, no. 3 (2011): 501–20. 7. See, generally, Avery Gordon, Ghostly Matters: Haunting and the Sociological Imaginary (Minneapolis: University of Minnesota Press, 2008); and Colin Dayan, The Law Is a White Dog: How Legal Rituals Make and Unmake Persons (Princeton: Princeton University Press, 2011). 8. Wendy Brown, Walled States, Waning Sovereignty (Brooklyn: Zone Books, 2010), 43. Page 154 →9. Ibid. 10. Robert Meister, After Evil: A Politics of Human Rights (New York: Columbia University Press, 2011). The following in-text references are to this text. 11. Scott, Omens of Adversity, 13. 12. David Scott, Conscripts of Modernity: The Tragedy of Colonial Enlightenment (Durham: Duke University Press, 2004). 13. Valerie Kerruish, “Responding to Kruger: The Constitutionality of Genocide,” Australian Feminist Law Journal 11 (1998): 65–82; Honni van Rijswijk and Thalia Anthony, “South Australia v Trevorrow: Can the Common Law Adjudicate Historical Suffering?,” Melbourne University Law Review 36 (2012): 618; Trish Luker, “Animating the Archive: Artefacts of Law,” in Law, Memory, Violence: Uncovering the Counter-Archive, ed. Stewart Motha and Honni van Rijswijk (Abingdon: Routledge, 2016), 70–96. 14. Irene Watson, “Buried Alive,” Law and Critique 13, no. 3 (2002): 253–69 at 254. See also Irene Watson, Aboriginal Peoples, Colonialism, and International Law: Raw Law (Abingdon: Routledge, 2014). 15. Jacques Derrida, Archive Fever: A Freudian Impression, trans. Eric Prenowitz (Chicago: University of Chicago Press, 1995). 16. Carolyn Steedman, Dust (Manchester: Manchester University Press, 2001), 6. 17. Ibid., 38. 18. Ibid. 19. Derrida, Archive Fever, 1.

20. Renisa Mawani, “Law’s Archive,” Annual Review of Law and Social Science 8 (2012): 337–65 at 357, 360. 21. Robert Cover, “Violence and the Word,” reprinted in Narrative, Violence, and the Law, ed. Martha Minow, Michael Ryan, and Austin Sarat (Ann Arbor: University of Michigan Press, 1995), 203. 22. Ann Laura Stoler, Along the Archival Grain: Epistemic Anxieties and Colonial Common Sense (Princeton: Princeton University Press, 2009). 23. Ibid., 3. 24. Verne Harris, Archives of Justice: A South African Perspective (Chicago: Society of American Archivists, 2007), 257. 25. Hans Vaihinger, The Philosophy of “As If”: A System of the Theoretical, Practical, and Religious Fictions of Mankind, trans. C. K. Ogden (Abingdon: Routledge, 1924). 26. I undertake a more extensive discussion of this constitutional fiction in chapter 4, “Belongers.” 27. For an early discussion of the South African Constitution as “archive,” see Karin van Marle, “Constitution as Archive,” in Law and the Politics of Reconciliation, ed. Scott Veitch (London: Ashgate, 2007), chap. 11. 28. See Claude Lefort, Democracy and Political Theory, trans. David Macey (Cambridge: Polity Press, 1988), 232. 29. Ibid. 30. See Bernard Flynn, “Lefort as Phenomenologist of the Political,” in Claude Lefort: Thinker of the Political, ed. MartГ-n Plot (New York: Palgrave Macmillan, 2013), 23–33 at 23. Page 155 →31. Lefort, Democracy and Political Theory, 233. 32. Ibid. 33. In the discussion that follows I compare the difference between degenerate myths and fictions with reference to Frank Kermode’s thought. 34. Jacques Derrida, Acts of Literature (London: Routledge, 1992), 187. 35. Ibid., vii. See epigraph—referring there to the OED definition of “Act.” 36. See Jacques Derrida, “Declarations of Independence,” New Political Science 15 (1986): 7, for an excellent reading of the US Declaration of Independence in these terms; and Hans Lindahl, “Constituent Power and Reflexive Identity: Towards an Ontology of Collective Selfhood,” in The Paradox of Constitutionalism, ed. Martin Loughlin and Neil Walker (Oxford: Oxford University Press, 2007), 9–24. 37. Derrida, Acts of Literature, 191. 38. Immanuel Kant, Groundwork for the Metaphysics of Morals, trans. Allen W. Wood (New Haven: Yale University Press, 2002), 38 (emphasis added in bold). 39. Derrida, Acts of Literature, 190. 40. Ibid. 41. Ibid., 191. 42. Ibid. 43. Ibid., 192. 44. Immanuel Kant, “The Metaphysics of Morals,” in Political Writings, ed. H. S. Reiss (Cambridge: Cambridge University Press, 1991), 143. 45. Panu Minkkinen, Sovereignty, Knowledge, Law (Abingdon: Routledge, 2009), 57. 46. Ibid. 47. Vaihinger, The Philosophy of “As If”. 48. Ibid., xli. 49. Hans Kelsen, General Theory of Norms, trans. Michael Hartney (Oxford: Clarendon Press, 1991), 254. 50. Ibid. 51. Ibid., 256. 52. Ibid. 53. Ibid.; and Vaihinger, The Philosophy of “As If”, 85. 54. Hans Kelsen, General Theory of Law and State (New Brunswick, NJ: Transaction, 2006), 396. 55. Ibid. 56. Ibid. 57. See Hans Kelsen, “The Conception of the State and Social Psychology—with Special Reference to

Freud’s Group Theory,” International Journal of Psychoanalysis 5 (1924): 1–38; see also the discussion of the Freud-Kelsen encounter by Г‰tienne Balibar, “The Invention of the Superego: Freud and Kelsen, 1922,” in Г‰tienne Balibar, Citizen Subject: Foundation of Philosophical Anthropology, trans. Steven Miller (New York: Fordham University Press, 2017), 227–55. 58. Kelsen, “Conception of the State and Social Psychology,” 7. 59. Ibid., 21. 60. Ibid., 35. Page 156 →61. Ibid. 62. Ibid. 63. Balibar, “Invention of the Superego,” 240. 64. Ibid., 254. 65. Ibid., 254–55. 66. See Jean-Luc Nancy, The Sense of the World (Minneapolis: University of Minnesota Press, 1997); and Frank Kermode, The Sense of an Ending: Studies in the Theory of Fiction (New York: Oxford University Press, 1966), 35–43. 67. Jean-Luc Nancy, A Finite Thinking (Stanford: Stanford University Press, 2003), 157. 68. Nancy, Sense of the World, ix. 69. Ibid. 70. Ibid., 105. 71. Ibid. 72. Kermode, Sense of an Ending, 37. 73. Ibid. 74. Ibid. 75. Ibid. 76. Ibid., 38. 77. Ibid., 39. 78. Ibid., 39–40. 79. Ibid. 80. Jacques Derrida, “Force of Law: The вЂMystical Foundations of Authority,’” in Acts of Religion, trans. Gil Anidjar (Abingdon: Routledge, 2001). 81. Walter Benjamin, The Arcades Project, trans. Howard Eiland and Kevin McLaughlin (Cambridge: Harvard University Press, 1999). The following in-text references are to this text. 82. Ibid., “Convolute N,” 456–88. 83. Walter Benjamin, “Theses on the Philosophy of History,” in Walter Benjamin, Illuminations, trans. Harry Zohn, ed. Hannah Arendt (London: Fontana, 1973), thesis IX, 259–60.

Chapter 1 1. “US Embassy Cables: Foreign Office Does Not Regret Evicting Chagos Islanders,” Guardian, 2 December 2010—http://www.theguardian.com/world/us-embassy-cables-documents/207149 2. See, generally, Laura Jeffrey, Chagos Islanders in Mauritius and the UK: Forced Displacement and Onward Migration (Manchester: Manchester University Press, 2011); and David Vine, Island of Shame: The Secret History of the U.S Military Base on Diego Garcia (Princeton: Princeton University Press, 2009). 3. James J. Cooke, Book Review of Alexander Harrison, Challenging de Gaulle: The O.A.S and the Counter-Revolution in Algeria, 1954–1962 (New York: Praeger, 1989), International Journal of African Historical Studies 23, no. 1 (1990): 160–62 at 162. Page 157 →4. Serge Berstein, The Republic of de Gaulle: 1958–1969, trans. Peter Morris (Cambridge: Cambridge University Press, 1993), chaps. 2 and 3, esp. p. 62. 5. Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, trans. George Schwab (Chicago: University of Chicago Press, 2005), 5. 6. Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, trans. Daniel Heller-Roazen (Stanford: Stanford University Press, 1998).

7. R (On the Application of Bancoult) v Secretary of State for the Foreign and Commonwealth Office (Bancoult No 1) [2001] Q.B. 1067 at 1075, per Laws LJ. 8. Jeffrey, Chagos Islanders in Mauritius and the UK, xx. I will adopt Jeffrey’s practice of referring to those born in the archipelago as Chagos Islanders, and Chagossian to refer to the wider community that may have been born in exile. 9. “US Embassy Cables,” Guardian, 2 December 2010 (original emphasis). 10. See Vine, Island of Shame, and the documentary film by John Pilger, Stealing a Nation (2004), accessible at https://www.youtube.com/watch?v=0zhGvId4fcc 11. R (Bancoult) v Secretary for Foreign and Commonwealth Affairs (Bancoult No 3) [2014] Env. L.R. 2, para 30. 12. As we will see in chapter 3, archiving sovereignty involves the destruction of facts. 13. R (Bancoult) v Foreign Secretary [2001] QB 1067 at 1083 (per Laws LJ). See also Chagos Islanders v The Attorney General, Her Majesty’s British Indian Ocean Territory Commissioner [2003] EWHC 2222 (QB) para. 74 (per Justice Ouseley). 14. Jean-Luc Nancy, “War, Right, Sovereignty—TechnД“,” in Jean-Luc Nancy, Being, Singular, Plural (Stanford: Stanford University Press, 2000). 15. Carl Schmitt, Political Theology: Four Essays on Sovereignty (Chicago: University of Chicago Press, 1985). 16. Agamben, Homo Sacer: “the camp, as the pure, absolute, and impassable biopolitical space (insofar as it is founded solely on the state of exception) will appear as the hidden paradigm of the political space of modernity, whose metamorphoses and disguises we will have to learn to recognize,” 123. 17. Walter Benjamin, “Critique of Violence,” in Walter Benjamin, Reflections: Essays, Aphorisms, Autobiographical Writings (New York: Schocken Books, 1995). 18. Agamben, Homo Sacer, 6 (original emphasis). 19. Ibid. 20. Schmitt, Political Theology, 13. 21. Carl Schmitt, The Nomos of the Earth (New York: Telos Press, 2003); see also Stuart Eldon, “Reading Schmitt Geopolitically: Nomos, Territory and GroГџraum,” Radical Philosophy, no. 161 (May–June 2010): 18–26. 22. Schmitt, Nomos of the Earth, 67. The following in-text references are to this text. 23. Chantal Mouffe, On the Political (Abingdon: Routledge, 2005). 24. Agamben, Homo Sacer, 36. 25. Ibid., 37–38. 26. Ibid., 36. 27. Ibid. 28. Ibid., 38 (original emphasis). Page 158 →29. Schmitt, Nomos of the Earth, 70. 30. Mouffe, On the Political, 120–21. 31. Nasser Hussain, The Jurisprudence of Emergency: Colonialism and the Rule of Law (Ann Arbor: University of Michigan Press, 2003). 32. Peter Fitzpatrick, The Mythology of Modern Law (London: Routledge, 1992), 107. 33. Ibid., 114. 34. Hussain, Jurisprudence of Emergency, 28. 35. Peter Fitzpatrick, Modernism and the Grounds of Law (Cambridge: Cambridge University Press, 2001), 20 (original emphasis). 36. Hussain, Jurisprudence of Emergency, 28–31. 37. Ibid., 29. For further critical discussion of Chatterjee, see Fitzpatrick, Modernism and the Grounds of Law, 127. 38. Lauren Benton, A Search for Sovereignty: Law and Geography in European Empires, 1400–1900 (Cambridge: Cambridge University Press, 2010), chap. 6. 39. Hussain, Jurisprudence of Emergency, 7. 40. Benton, Search for Sovereignty, 285. 41. Ibid., 286.

42. Ibid., 285. 43. Ibid., 284. 44. Ibid., 289. 45. Ibid., 290. 46. Ibid., 287. 47. Ibid., 256–57, and, generally, chap. 6, esp. 291–99. See esp. note 35 where Benton’s position is distinguished from Douzinas on “bare sovereignty.” 48. Ibid., 256. As we will see later, this splitting of sovereignty takes many forms, including that between radical title and beneficial interests as can be observed in Australian native title cases. 49. Ibid. 50. Ibid., 256–57, n. 109. 51. Costas Douzinas, Human Rights and Empire: The Political Philosophy of Cosmopolitanism (Abingdon: Routledge, 2007), chap. 11. 52. Ibid., 272. 53. Ibid. 54. Ibid., 273. 55. Ibid. (emphasis added). 56. Ibid. 57. Ibid., 275–76. The great legislators include Moses, Solon, Lycurgus, Plato, and Zarathustra (before the latter could benefit from a dialogue with Irigaray’s Marine Lover!). See Luce Irigaray, Marine Lover of Friedrich Nietzsche, trans. Gillian C. Gill (New York: Columbia University Press, 1991). 58. Douzinas, Human Rights and Empire, 276–77. 59. Ibid., 283. 60. Peter Fitzpatrick, “Bare Sovereignty: Home Sacer and the Insistence of Law,” in Page 159 →Politics, Metaphysics and Death: Essays on Giorgio Agamben’s Homo Sacer, ed. Andrew Norris (Durham: Duke University Press, 2005), 49–73 at 69. 61. Paul W. Kahn, Political Theology: Four New Chapters on the Concept of the Political (New York: Columbia University Press, 2011), 13. 62. Marc Shell, Islandology: Geography, Rhetoric, Politics (Stanford: Stanford University Press, 2014), 178. 63. Shell also discusses the proper name Hamlet in Shakespeare’s play, and connects it to the “islandic patch of ground—“ham”—for which so many people in Hamlet struggle, with Hamlet’s name, ham-let, which in English means “little patch of ground,” and also associates Hamlet’s “ham” with the play’s overall islandology, Shell, Islandology, 151. Shell suggests that Shakespeare rarely used the word “ham,” but made more regular use of its cognate “hem, ” which refers to a border of a textile or patch of ground, 152. 64. I return in chapter 2 to consider Australia’s detention and internment of boat-migrants on these islands. 65. For a more detailed treatment of Daniel Defoe’s Robinson Crusoe in relation to the Chagos litigation, see Stephanie Jones and Stewart Motha, “A New Nomos Offshore and Bodies as Their Own Signs,” Law & Literature 27, no. 2 (2015): 253–78. 66. Joseph Slaughter, Human Rights, Inc: The World Novel, Narrative Form, and International Law (New York: Fordham University Press, 2007), 53. 67. Ibid., 45–48. 68. Ibid., 53. 69. Michael Taussig, “The Beach (A Fantasy),” Critical Inquiry 26, no. 2 (2000): 248–78, at 258. I am indebted to Avery Gordon for pointing me to this text by Taussig. 70. Ibid., 259. 71. R (On the Application of Bancoult) v Secretary of State for the Foreign and Commonwealth Office (Bancoult No 1) [2001] Q.B. 1067 at 1075, per Laws LJ, para. 13. 72. Ibid. 73. Ibid., para. 18—note of Foreign Office legal adviser dated 16 January 1970. 74. Ibid., para. 57.

75. Chagos Islanders v Attorney General [2003] EWHC 2222, per Ouseley J. This was affirmed on appeal, Chagos Islanders v Attorney General [2004] EWCA Civ 997, per Butler-Sloss P, Sedley and Neuberger LJJ. 76. R (Bancoult) v Foreign Secretary (Bancoult No 2) [2009] 1 AC 453 at 480. 77. Ibid., 475. 78. Ibid., 482–83. 79. Campbell v Hall (1774) 1 COWP 204; 98 ER 1045. 80. For an excellent analysis of the limits of judicial review articulated in relation to the CLVA in Bancoult (No 2), see Mark Eliot and Amanda Perreau-Saussine, “Pyrrhic Public Law: Bancoult and the Sources, Status and Content of Common Law Limitations on Prerogative Power,” Public Law (2009): 697–722. 81. Bancoult (No 2), 483. 82. Campbell v Hall (1774) 1 COWP 204; 98 ER 1045 at 1047–48. Page 160 →83. Bancoult (No 2), 484 (emphasis added). 84. Ibid. 85. Jacques Derrida, Rogues: Two Essays on Reason (Stanford: Stanford University Press, 2005). 86. Bancoult (No 2), 486. The following in-text references are to this text. 87. The case was finally decided by the European Court of Human Rights, which dismissed the claims of the Chagossians in much the same terms. It was found that the Chagossians had been paid compensation, and they no longer had a cause of action. 88. Nancy, “War, Right, Sovereignty—TechnД“,” in Nancy, Being Singular Plural, 101–44; and Jean-Luc Nancy, Sense of the World. 89. “US Embassy Cables: Foreign Office Does Not Regret Evicting Chagos Islanders,” Guardian, 2 December 2010 (original emphasis)—http://www.theguardian.com/world/us-embassy-cables-documents /207149 90. R (Bancoult) v Secretary for Foreign and Commonwealth Affairs (Bancoult No 3) [2014] Env. L.R. 2, para. 22. For further analysis, see Laura Jeffery, “Neither Confirm nor Deny: WikiLeaks Evidence and the Vienna Convention on Diplomatic Relations in the Judicial Review of the Chagos Marine Protected Area,” Anthropology Today 30, no. 3 (2014): 9–13. 91. (Bancoult No 3), para. 59. 92. Jeffrey, “Neither Confirm nor Deny,” 11. 93. Jean-Luc Nancy, The Inoperative Community, trans. Peter Connor (Minneapolis: University of Minnesota Press, 1991), 4. 94. Jacques Derrida, The Beast and the Sovereign, Vol. II, trans. Geoffrey Bennington (Chicago: University of Chicago Press, 2011). 95. George Bataille, The Accursed Share, Vol. III (New York: Zone Books, 1993), 197–223, esp. 208. See also Clare Monagle and Dimitri Vardoulakis, “Introduction: The Negativity of Sovereignty, Now, ” in The Politics of Nothing: On Sovereignty, ed. Clare Monagle and Dimitri Vardoulakis (Abingdon: Routledge, 2013), 1. 96. Bataille, The Accursed Share, Vol. III, 207. 97. Ibid., 214. 98. Ibid., 222 (original emphasis). 99. Carl Schmitt, Political Theology, 5. 100. Ibid., 31–32. For discussion of the extent to which this decision is in relation to a constitution or concrete order, see Charles Barbour, “Exception and Event: Schmitt, Arendt, and Badiou,” in After Sovereignty: On the Question of Political Beginnings, ed. Charles Barbour and George Pavlich (Abingdon: Routledge, 2010), 86. 101. See Jean-Luc Nancy, “State, Church, Resistance,” trans. VГ©ronique Voruz and Colin Perrin, in Democracy’s Empire, ed. Stewart Motha (London: Blackwell, 2007), 4–5. 102. Derrida, Beast and the Sovereign, Vol. II, 22–23. 103. Ibid., 21. “World without others” was Deleuze’s response to the question, “What is the meaning of the fiction вЂRobinson’?,” in Gilles Deleuze, Logic of Sense, cited in Derrida, ibid., 26. 104. Jean-Jacques Rousseau, Discours sur l’origine et les fondements de l’inГ©galitГ© parmi

Page 161 →les homes, in Euvres complГЁtes (Paris: Gallimard, 1959–95), 3:112, cited in Derrida, Beast and the Sovereign, Vol. II, 23. 105. Schmitt, Political Theology, 13. 106. Jacques Derrida, The Truth in Painting (Chicago: University of Chicago Press, 1987). 107. I borrow the term from J. Hillis-Miller, “Derrida Enisled,” Critical Inquiry 34, no. 2 (2007): 248–76. I am grateful to Daniel Matthews for the reference. 108. The impossibility of being alone while being alone is explored by Nancy, Inoperative Community, 4.

Chapter 2 1. See Ben Doherty, “Self-Immolation: Desperate Protests against Australia’s Detention Regime, ” Guardian, 3 May 2016, https://www.theguardian.com/australia-news/2016/may/03/asylum-seekers-setthemselves-alight-nauru 2. See Asylum Seeker Resource Centre, “Operation Sovereign Borders” (2014)—https://www.asrc.org.au/wp-content/uploads/2013/07/Operation-Sovereign-Borders-May2014.pdf 3. Australian Human Rights Commission, The Forgotten Children: National Inquiry into Children in Immigration Detention (Sydney, 2014). https://www.humanrights.gov.au/sites/default/files/document /publication/forgotten_children_2014.pdf 4. Ibid., 13. 5. Agamben, Homo Sacer; Judith Butler, Precarious Life: The Power of Mourning and Violence (London: Verso, 2006); Judith Butler, Frames of War: When Is Life Grievable? (London: Verso, 2010); Eric Santner, On the Psychotheology of Everyday Life: Reflections on Freud and Rosenzweig (Chicago: University of Chicago Press, 2001); Eric Santner, On Creaturely Life: Rilke, Benjamin, Sebald (Chicago: University of Chicago Press, 2006); Eric Santner, The Royal Remains: The People’s Two Bodies and the Endgames of Sovereignty (Chicago: University of Chicago Press, 2011). 6. See Stephanie Jones and Stewart Motha, “A New Nomos Offshore and Bodies as Their Own Sign, ” Law & Literature 27, no. 2 (2015): 253–78, for an earlier account of the argument deployed here in the context of a discussion of Schmitt’s nomos of the sea. The emphasis in this chapter is on the “form of life” and the “body” as archive. I also extend the discussion of what it means for a body to be a “sign of itself,” a phrase drawn from J. M. Coetzee, Foe (London: Penguin, [1986] 2010), 157. 7. M61/2010E v Commonwealth of Australia (2010) HCA 41. 8. M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1, 3 February 2016. 9. See discussion of this point by Justice Gordon (in dissent), M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1, 3 February 2016. 10. We will return later to the sign, “M68.” 11. M68, para. 38. 12. Ibid., para. 39. Page 162 →13. Ernst Kantorowicz, The King’s Two Bodies: A Study in Medieval Political Theology (Princeton: Princeton University Press, 1998). 14. CPCF v Minister for Immigration and Border Protection [2015] HCA 1 (High Court of Australia, 28 January 2015—S169/2014). The following in-text references are to this case. 15. On visive power, see Peter Goodrich, “Visive Powers: Colours, Trees, and Genres of Jurisdiction, ” Law and Humanities 2 (2008): 213–31. 16. Hannah Arendt, “We Refugees,” in Altogether Elsewhere: Writers on Exile, ed. Marc Robinson (London: Faber and Faber, 1994), 110–19. The following in-text references are to this text. 17. See, generally, Brown, Walled States, Waning Sovereignty. 18. Hannah Arendt, “The Decline of the Nation-State and the End of the Rights of Man,” in The Origins of Totalitarianism (Harcourt: New York, 1966), chap. 9. The following in-text references are to this text. 19. Jacques RanciГЁre, “Who Is the Subject of the Rights of Man?,” South Atlantic Quarterly 103,

nos. 2–3 (2004): 297–310, at 299. The following in-text references are to this text. 20. For a useful study of RanciГЁre’s arguments on equality, dissensus, and political voice, see Yvonne Jooste, “вЂThe Subaltern Can Speak’: Reflections on Voice through the Lens of the Politics of Jacques RanciГЁre,” PhD thesis, Faculty of Law, University of Pretoria, 2015. 21. Jean-FranГ§ois Lyotard, “The Other’s Rights,” in The Politics of Human Rights, ed. Obrad SaviД‡ (London, Verso, 1999), chap. 10. 22. Agamben, Homo Sacer, 6. 23. Ibid., 188. 24. Giorgio Agamben, Means without End: Notes on Politics (Minneapolis: University of Minnesota Press, 2000), 4. 25. Ibid., 6–7. 26. Ibid., 9. 27. Ibid. 28. Agamben, Homo Sacer, 188. 29. Agamben, Means without End, 11–12. 30. Ibid., 10. 31. Giorgio Agamben, Potentialities: Collected Essays in Philosophy (Stanford: Stanford University Press, 1999), 35. 32. Ibid. 33. Ibid., 178–79. 34. Ibid., 178. 35. Ibid. 36. Ibid., 179. 37. Ibid., 179–80. 38. Giorgio Agamben, The Coming Community (Minneapolis: University of Minnesota Press, 1993). 39. Agamben, Potentialities, 254. 40. Butler, Frames of War, 3. See also, Butler, Precarious Life, chap. 5, for a discussion of the Levinasian origins of this response to the other. Page 163 →41. Butler, Frames of War, 32 (emphasis added). 42. Butler, Precarious Life, 144–45. 43. Ibid., 147. 44. Ibid. 45. Santner, On Creaturely Life, xiii. 46. Ibid. 47. Santner, On the Psychotheology of Everyday Life, 9. 48. Ibid. 49. Catherine Malabou, “Will Sovereignty Ever Be Deconstructed?,” in Plastic Materialities: Politics, Legality, and Metamorphosis in the Work of Catherine Malabou, ed. Brenna Bhandar and Jonathan Goldberg-Hiller (Durham: Duke University Press, 2015), 35. The following in-text references are to this text. 50. Emphasis added. 51. Jacques Derrida, “Faith and Knowledge: The Two Sources of вЂReligion’ at the Limits of Reason Alone,” in Jacques Derrida, Acts of Religion, trans. Gil Anidjar (New York: Routledge, 2002), 87. 52. Ernst Kantorowicz, The King’s Two Bodies: A Study in Medieval Political Theology (Princeton: Princeton University Press, [1957] 1981). 53. Peter Goodrich, “Visive Powers: Colours, Trees, and Genres of Jurisdiction,” Law and Humanities 2 (2008): 213–31. 54. Jacques Derrida, The Beast and the Sovereign, Vol. 1, “Eleventh Session,” 276. The following intext references are to this text. 55. J. Hillis Miller, “Derrida Enisled,” in J. Hillis Miller, For Derrida (New York: Fordham University Press, 2009), 101–32. I am immensely grateful to Daniel Matthews for this reference, and a productive discussion of it. The following in-text references are to this text.

56. See Jacques Derrida, Of Hospitality (Stanford: Stanford University Press, 2000). 57. Derrida, Beast and the Sovereign, Vol. II, 9. 58. Edward Said, Reflections on Exile and Other Essays (Cambridge: Harvard University Press, 2000), 174. 59. Ibid., 146. 60. Ibid., 147. 61. Judith Butler, Parting Ways: Jewishness and the Critique of Zionism (New York: Columbia University Press, 2014), 224. 62. Mahmoud Darwish, Who Am I, Without Exile?, trans. by Fady Joudah. See http://www.poetryfoundation.org/poem/236748 63. Butler, Parting Ways, 224.

Chapter 3 1. Kruger v Commonwealth of Australia (1997) 190 CLR 1. 2. Marc Nichanian, The Historiographic Perversion, trans. Gil Anidjar (New York: Columbia University Press, 2009). I am immensely grateful to BaЕџak ErtГјr for this reference. 3. Jean-FranГ§ois Lyotard, The Differend: Phrases in Dispute, trans. Georges Van Den Abbeele (Minneapolis: University of Minnesota Press, 1988), 57. Page 164 →4. Nichanian, Historiographic Perversion, 2. 5. Mabo v Queensland (No 2) (1992) 175 CLR 1. 6. Nichanian, Historiographic Perversion, chap. 1. 7. Ibid., 20. 8. Ibid., 23. 9. Ibid., 24 (original emphasis). 10. Ibid., 4–5. 11. Northern Territory Aboriginal Ordinance 1918, Section 6 (1). 12. Northern Territory Aboriginal Ordinance 1918, Section 16 (1) and (2). 13. Kruger v Commonwealth of Australia, 10. 14. Ibid. 15. Valerie Kerruish, “Responding to Kruger: The Constitutionality of Genocide,” Australian Feminist Law Journal 11 (1998): 65–82 at 73. 16. Ibid., 73. 17. Ibid. 18. Nulyarimma v Thompson [1999] FCA 1192. 19. A private senator’s bill is a bill introduced by a senator who is not a member of the government of the day. 20. See Jennifer Balint, “Too Near and Too Far: Australia’s Reluctance to Name and Prosecute Genocide,” in Genocide Perspectives V, ed. Nikki Marczak and Kirril Shields (Sydney: UTS e-Press, 2017), 53–70. 21. Ibid., 19 (page in draft with author). 22. Ibid., 19–20. I am indebted to Jennifer Balint for her insight on these issues. Balint’s essay appears in a collection to honor Professor Colin Tatz. I had the privilege of being taught by Professor Tatz in his course on the Politics of Genocide at Macquarie University in 1990. His work has remained an inspiration for me ever since. 23. Justice Wilcox, Nulyarimma, para. 17. See also Jennifer Balint, “Stating Genocide in Law: The Aboriginal Embassy and the ACT Supreme Court,” in The Aboriginal Tent Embassy: Sovereignty, Black Power, Land Rights and the State, ed. Gary Foley, Andrew Schaap, and Edwina Howell (Abingdon: Routledge, 2014), 235–50. 24. Ibid., para. 7. 25. Ibid., para. 8. 26. See, generally, Michael Naas, “Analogy and Anagram: Deconstruction as Deconstruction of the As, ” in Michael Naas, Derrida from Now On (New York: Fordham University Press, 2008), 37.

27. Mabo v Queensland (No 2). The following in-text references are to this case. 28. Wik Peoples v Queensland (1996) 187 CLR 1 at 181 (emphasis added). The following in-text references are to this case. 29. Ian Hunter, “Natural Law, Historiography, and Aboriginal Sovereignty,” Legal History 11 (2007): 137–67. 30. Henry Reynolds, The Law of the Land (Melbourne, Victoria: Penguin Books, 1987). 31. Henry Reynolds, Aboriginal Sovereignty: Reflections on Race, State, and Nation (Crows Nest, New South Wales: Allen and Unwin, 1996). Page 165 →32. In Mabo the court declared the colonial assertion of sovereignty to be nonjusticiable in a municipal court: Mabo (1992) 31–32. See Coe v The Commonwealth (No 1) (1979) 53 ALJR 403; and Coe v The Commonwealth (No. 2) (1993) 68 ALJR 110. 33. Reynolds, Aboriginal Sovereignty, chap. 3. 34. See Hunter (2007), 141. The following in-text references are to this text. 35. Reynolds, Aboriginal Sovereignty, 52. 36. Christopher Tomlins, “After Critical Legal History: Scope, Scale, Structure,” Annual Review of the Law and Social Science 8 (2012): 31–68 at 37. 37. Michael Naas, “Analogy and Anagram: Deconstruction as Deconstruction of the As,” in Michael Naas, Derrida from Now On (New York: Fordham University Press, 2008), 37. 38. Ibid., 38. 39. Ibid. 40. Jean-Luc Nancy, The Birth to Presence (Stanford: Stanford University Press, 1993). 41. Derrida, Acts of Literature, 191. 42. Ibid., 190. 43. See Shaunnagh Dorsett and Shaun McVeigh, Jurisdiction (Abingdon: Routledge, 2012), chaps. 6 and 8. 44. The choice of Loughlin is partly to do with the breath and reach of his account of public law, but more particularly for our discussion because, as we will see, he relies on Ian Hunter at crucial points in his account. 45. Martin Loughlin, The Idea of Public Law (Oxford: Oxford University Press, 2003), 75. The following in-text references are to this text. See also Martin Loughlin, Foundations of Public Law (Oxford: Oxford University Press, 2010). 46. See Bruno Bosteels, “Introduction: This People Which Is Not One,” in What Is a People?, ed. Alain Badiou et al. (New York: Columbia University Press, 2016), 13. 47. Lefort, Democracy and Political Theory. 48. This question can be addressed by the distinction between “constituent power,” let’s say of the “people” (potentia), and the authority/institution in whom or which that power is vested—constituted power (potestas). The power of the “people/nation” is political; the institutional or constitutional arrangement of the competencies authorized by such political power is the legal manifestation of sovereignty. 49. Ian Hunter, Rival Enlightenments: Civil and Metaphysical Philosophy in Early Modern Germany (Cambridge: Cambridge University Press, 2001). 50. Loughlin, Idea of Public Law, 140. 51. Tomlins, “After Critical Legal History,” citing Y. Blank, “The Reenchantment of Law,” Cornell Law Review 96, no. 4 (2011): 633–70. For an alternative deployment of a Weberian typology, see Panu Minkinnen, Sovereignty, Knowledge, Law (Abingdon: Routledge, 2010), who elaborates the relation between sovereignty, knowledge, and law in terms of auto-cephalous, hetero-cephalous, and acephalous conceptions of sovereignty. 52. Nancy, “Inoperative Community.” I elaborate this point below. 53. Derrida, Rogues, xi. 54. Ibid. Page 166 →55. Schmitt, Political Theology, 12, 14. 56. Jacques Derrida, Without Alibi (Stanford: University of Stanford Press, 2002), xx. 57. Ibid. 58. Ibid.

59. Derrida, Rogues, xv. The following in-text references are to this text. 60. Jacques Derrida, The Politics of Friendship, trans. George Collins (London: Verso, 1997). 61. Nancy, “Inoperative Community,” 4. 62. Ibid. 63. Ibid. The finitude of the “Idea, History, the Individual, the State, Science, the Work of Art, and so on” are called into question in Nancy’s critique of the metaphysics of the “absolute” (ibid.). For my purposes, I will confine my discussion to the critique of finitude, and not elaborate the deeper, postHeideggerian critique of metaphysics that is set out in Nancy’s thought. 64. Ibid. 65. Ibid. 66. Ibid. (emphasis in original). 67. Ibid., 28. 68. Ibid. 69. Ibid., 33. 70. Jean-Luc Nancy, “Of Being Singular Plural,” in Jean-Luc Nancy, Being Singular Plural, trans. Robert Richardson and Anne O’Bryne (Stanford: Stanford University Press, 2000), 24. 71. Ibid., 24–25. 72. Ibid., 25. 73. Ibid. 24. The politico-philosophical traditions that Nancy wishes to displace with his account are the social contract theories of Rousseau and liberal humanism. 74. Ibid., 10–11. 75. Ibid., 11. 76. Jean-Luc Nancy, “Eulogy for the Mêlée,” in Nancy, Being Singular Plural, 156. 77. Nancy, “Of Being Singular Plural,” 11. 78. Ibid. 79. Ibid. 80. Nancy, “Inoperative Community,” 14; and Nancy, “Of Being Singular Plural,” 27, 32. 81. Nancy, “Of Being Singular Plural,” 12. 82. Nancy, “Inoperative Community,” 33. 83. Ibid. 84. Ibid. 85. Jean-Luc Nancy, “The Confronted Community,” Postcolonial Studies 6, no. 1 (2003): 23–34 at 32. 86. Nancy, “Inoperative Community,” 32.

Page 167 →Chapter 4 1. See Sections 9–12 of the Constitution of the Republic of South Africa, 1996, which guarantee the right to equality, dignity, and life. Trade union and labor rights are guaranteed in Section 23. 2. See Mogobe Ramose, “In Memoriam: Sovereignty and the вЂNew’ South Africa,” Griffith Law Review 16, no. 2 (2007): 310–29. 3. For a powerful argument against the privileging of constitutionalism at the expense of the community and the political, see Stacy Douglas, Curating Community: Museums, Constitutionalism, and the Taming of the Political (Ann Arbor: University of Michigan Press, 2017). 4. See Kermode, Sense of an Ending, 39–40, as discussed in my introduction to this book. 5. For a discussion of the scope and ethical power of the notion of “belonger,” see Stephanie Jones, “Colonial to Postcolonial Ethics: Indian Ocean Belongers 1668–2008,” interventions 11, no. 2 (2009): 212–34. 6. The authority for this was discussed by Lord Bingham in his dissenting judgment in R (Bancoult) v Secretary of State for Foreign Affairs (Bancoult No 2) [2009] 1 AC 453 at 491. Lord Justice Bingham referred to the discussion by Lord Justice Laws in Bancoult (No 1) of Richard Plender, International Migration Law, 2nd ed. (1988), chap. 4, 142–43—which confirms the use of the term

“belongers” in UK statutes. Phrases such as “Hong Kong belonger” indicate that the person has the right to land in Hong Kong. While a number of judges accepted the status of “belonger” as a fundamental right, also expressed as a “right of abode,” the majority did not accept that the existence of this right would render the Constitution Order in question in that case ultra vires or repugnant at law. See discussion by Lord Justices Bingham at 491, Roger at 496–501, Carswell at 509, and Mance at 519. 7. City of Tshwane Metropolitan Municipality v Afriforum (2016) Constitutional Court 157/15 (hereafter Afriforum). I am grateful to Danie Brand, Tshepo Madlingozi, and Karin van Marle for useful discussions about this case. The following in-text references are to this case. 8. See https://www.afriforum.co.za/about/about-afriforum/ 9. Section 31 of the Constitution provides that (1) Persons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of that community— (a) to enjoy their culture, practise their religion and use their language; and (b) to form, join and maintain cultural, religious and linguistic associations and other organs of civil society. (2) The rights in subsection (1) may not be exercised in a manner inconsistent with any provision of the Bill of Rights. 10. Justice Cameron in Afriforum: “At the end of all this, nineteen judges—four in the High Court, four in the Supreme Court of Appeal (in the applications for leave), and eleven in this Court—would have been involved in deciding a preliminary, temporary order. We hope this does not become the norm” (para. 100). Page 168 →11. For a discussion of the South African Constitution as “archive,” see Karin van Marle, “Constitution as Archive,” in Law and the Politics of Reconciliation, ed. Scott Veitch (London: Ashgate, 2007), chap. 11. Van Marle discusses several images of the constitution, including, constitution as bridge, memorial, and monument—and stresses the dual archival role of remembering and forgetting, esp. at 219–25. 12. The Preamble to the Constitution was reproduced in the introduction to this book. 13. Afriforum, Justices Froneman and Cameron, para. 120. 14. Achille Mbembe in his essay “Decolonizing Knowledge and the Question of the Archive” (An Africa Is a Country Ebook, 2015)—https://africaisacountry.atavist.com/decolonizing-knowledge-and-thequestion-of-the-archive 15. The Citizen v McBride (2011) ZACC 11. The following in-text references are to this case. 16. See the extensive discussion of amnesty and indemnity in Adam Sitze, The Impossible Machine: A Genealogy of South Africa’s Truth and Reconciliation Commission (Ann Arbor: University of Michigan Press, 2013). I return to consider Sitze’s observations on amnesty and indemnity below. 17. See evidence of relatives of the deceased, and an interview with Robert McBride, South African Broadcasting Corporation, episode 4, part 2—available on YouTube, https://www.youtube.com/watch? v=yvjA_zqicFo 18. Tshepo Madlingozi, “The Right to Call a Murderer a Murderer,” Mail & Guardian, 25 June 2010. Madlingozi’s comment followed the Supreme Court of Appeal ruling that McBride should not be called a murderer. It was this decision that was appealed to the Constitutional Court. 19. I am grateful to Tshepo Madlingozi for a productive conversation about these issues. 20. Du Toit v Minister for Safety and Security [2009] ZACC 22. 21. Du Toit, para. 44; McBride, para. 52. 22. Sitze, Impossible Machine. 23. Ibid., 7. 24. Ibid., see discussion in Sitze of indemnity in other colonies as well—including the Cape Colony, Ceylon, Antigua, Mauritius, and New Zealand, 7. 25. Ibid., 7. 26. Ibid., 8. 27. Ibid., 10. 28. Ibid., 11. 29. Ibid., 17.

30. Ibid., chaps. 7 and 8. 31. Ibid., 204. 32. Ibid., 205. 33. Ibid., 198–99. 34. Ibid., 214. 35. Ibid. I am drawing from Sitze’s account and discussion of the play, 209–14. 36. Ibid., 214 (original emphasis). Page 169 →37. Ibid., 215. 38. Ibid., 224. 39. Ibid., 225. 40. Antjie Krog, Country of My Skull: Guilt, Sorrow, and the Limits of Forgiveness in the New South Africa (Cape Town: Random House, 1998). 41. Antjie Krog, A Change of Tongue (Cape Town: Random House, 2003). 42. Antjie Krog, Begging to Be Black (Cape Town: Random House, 2009). The following in-text references are to this text. 43. David Scott, Conscripts of Modernity: The Tragedy of Colonial Enlightenment (Durham: Duke University Press, 2004), 7. 44. J. M. Coetzee, Disgrace (London: Secker and Warburg, 1999). 45. Mogobe Ramose, “In Memoriam: Sovereignty and the вЂNew’ South Africa,” Griffith Law Review 16, no. 2 (2007): 310–29. The following in-text references are to this text. 46. Mogobe Ramose, “The King as Memory and Symbol of African Customary Law,” in The Shades of New Leaves: Governance in Traditional Authority, a Southern African Perspective, ed. Manfred O. Hinz and Helgard Patemann (Berlin: LIT Verlag, 2006), 366. 47. Ibid., 367. 48. AZAPO v The President (1996) CCT 17/96. 49. AZAPO, para. 44. 50. See Paul Patton, “Becoming-Animal and Pure Life in Coetzee’s Disgrace,” ARIEL 35 (2006): 101–19. Patton reads the character David Lurie in J. M. Coetzee’s Disgrace as “becoming animal.” The unraveling of the Byronesque character—who moves from being an anthropocentric, sexist, and patriarchal modern man to caring for animals—is one literary example of minoritarian transformation in postapartheid South Africa. 51. Mogobe Ramose, African Philosophy through Ubuntu (Harare, Zimbabwe: Mond Books, 2002), 50. 52. Ibid., 41. 53. Ibid. 54. Ibid. 55. Ibid. 56. Ibid. 57. Ibid., 41–42 and 82. 58. Ibid., 42–43. 59. Ibid., 43. 60. Ibid., 45. 61. Ibid., 46. 62. Ibid., chap. 6, 101, n 13. 63. Ibid., 82. 64. Ibid. 65. Derrida, Rogues, chaps. 1–3. 66. Ramose, African Philosophy through Ubuntu, 46–47. Page 170 →67. Ibid., 92. 68. Ibid. 69. Ibid., 93 70. Ibid., 93–94. 71. Karin van Marle, “Counter Archive as Staging Dissensus,” in Law, Memory, Violence: Uncovering the Counter-Archive, ed. Stewart Motha and Honni van Rijwijk (Abingdon: Routledge, 2016),

116–39 at 116. 72. Jacob Dlamini, Native Nostalgia (Johannesburg: Jacana, 2009), 20–21. I am indebted to Tshepo Madlingozi for this reference. 73. Ibid., 20. 74. Ibid., 4–5. 75. Svetlana Boym, The Future of Nostalgia (New York: Basic Books, 2001). 76. Swiss doctor Johannes Hofer coined the term in 1688; ibid., 3. 77. Ibid., xviii. 78. Ibid., chap. 2, contains an excellent discussion of how nostalgia is a quintessentially modern dilemma. 79. Ibid., 19. 80. Marlene van Niekerk, Agaat (Cape Town: Jonathan Ball Publishers, 2006). 81. Agamben, Means without End, 10. 82. Stephen Clingman, “Looking from South Africa to the World: A Story of Identity for Our Times, ” Safundi: The Journal of South African and American Studies 14, no. 3 (2013): 235–54, at 251. See also Stephen Clingman, The Grammar of Identity: Transnational Fiction and the Nature of the Boundary (Oxford: Oxford University Press, 2009). 83. Ibid., 241–42.

Epilogue 1. See, generally, Jacques Derrida, The Other Heading: Reflections on Today’s Europe, trans. PascaleAnne Brault and Michael Nass (Bloomington: Indiana University Press, 1992). 2. Cornelia Vismann, Files: Law and Media Technology, trans. Geoffrey Winthrop-Young (Stanford: Stanford University Press, 2008). 3. Ibid., 63. 4. Ibid., 62. 5. Ibid., 161. 6. Ibid., 162. 7. Anselm Kiefer, The High Priestess (London: Thames and Hudson, 1989). 8. Armin Zweite, “The High Priestess: Observations on a Sculpture by Anselm Kiefer,” in Anselm Kiefer, The High Priestess (London: Thames and Hudson, 1989), 65–103, at 97–100. 9. Ibid., 97. 10. Ibid., 100. 11. Ibid., 101. Page 171 →12. Svetlana Boym, The Future of Nostalgia (New York: Basic Books, 2001). 13. Ibid., 22. 14. Ibid., 29. 15. Ibid., 30–31.

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Index Aboriginal: dispossession of lands of, 88–95; property rights of, 88–95; sovereignty of, 91–96; Stolen Generation of, 6, 81, 83–84, 86–87, 90 Adorno, Theodor, 19, 79 African National Congress (ANC), 10, 109–11, 117, 126, 128, 130 Afrikaners, 113–14, 128, 132–33, 139–40 Agaat (van Niekerk), 137–142 Agamben, Giorgio, 24, 29, 32–33, 35, 56, 63, 65–67, 69–70, 72–73, 77 agonism, 33 amnesty, 116–122, 131–32 antiapartheid, 10, 124. See also apartheid; postapartheid anticolonial, 5, 112, 129, 132, 135. See also postcolonial Anti-Genocide Bill (1999), 85 apartheid, 2, 109–11, 113–15, 117, 120, 122–26, 130–33, 137–40 archival future, 1, 3, 20, 145–46 archive: amnesty and, 116; as analogy, 8; of apartheid violence, 113; colonialism and, 2, 113; counterarchive and, 137; definition of, 1–2; etymology of, 8; expansion of, 9; genocide and, 81–83; “as if” and, 8; law and, 2, 5, 8, 37; legitimacy of, 24; literature and, 8, 136–42; as memorials, 146; of the refugee body, 55; as sign, 146; sovereignty and, 2, 24, 111; sovereign violence and, 2, 111; “as such” and, 8 Arendt, Hannah, 17, 29, 61–64, 66, 97–98, 153n6 Aristotle, 29, 69–70, 98 Armenian genocide, 82 art, 147–151 “as if”: as act of literature, 12; as archival, 17–18; centrality of, 9–10, 12; definition of, 6; ethics and, 17; Immanuel Kant and, 96–97; importance of, 14; law and, 7, 9, 20, 88, 145–46; in Lim v Minister for Immigration (1992), 58; as a memorial device, 1; politics and, 17; as sense, 16–18; of South Africa, 111; sovereignty and, 36–37, 76–77, 88–89, 102–3; sovereign violence and, 37–38; “as such” and, 7, 88 “as such,” 7, 88, 102–3 Australia: aboriginal property rights and, 88–91; beneficial title of, 90; borders of, 53; colonial law of, 20, 107; Constitution of, 58, 60; dispossession of lands by, 88–95; genocide statutes and, 84–86; jurisdiction and, 95; Maritime Powers Act (2013) and, 59–60; Migration Act (1958) of, 57; Migration Amendment (Unauthorized Maritime Arrivals) Act (2013) of, 56–57; migration crisis of, 56–57, 59–62, 143; MV Tampa and,

53–54; native title and, 85–86, 88–89; One Nation party of, 85–86; Pacific Solution of, 56–57; radical title of, 90; refugee camps of, 53–54, 56, 59–62, 65, 77, 143, 159n64; regret and, 86; Stolen Generation of, 6, 81, 84, 86–87, 90; “Ten Point Plan” and, 85–86 Page 182 →Australian Human Right’s Commission, 54 authority, 5, 8, 12–16, 18, 20, 24, 32–33, 36, 42–45, 51, 59, 76, 96–101, 103, 151 autonomy, 2, 24–25, 37, 49–51, 84, 97–101, 103–5, 145, 151 AZAPO v the President of the Republic of South Africa, 121, 131 Balibar, Г‰tienne, 15 Balint, Jennifer, 85 Bancoult (No 1) v Secretary of State for Foreign and Commonwealth Affairs, 45–46, 167n6 Bancoult (No 2) v Secretary of State for Foreign and Commonwealth Affairs, 41–44, 159n80, 167n6 Bancoult, Louis Olivier, 47 Bantu, 130–31, 134 barbarian theory, 88–91 bare life, 56, 68, 72 basic norms, 14 Bataille, George, 49 Begging to Be Black (Krog), 125–29 Being, 77–78, 103–5, 135 being singular plural, 104–7 Bell, Virginia, 60 belongers: Chagos Islanders as, 112, 167n6; Chagossians as, 112; definition of, 111–12; deportation and, 112; exile and, 112; immigration and, 112; indigenous communities and, 111–12; nonracialist, 112; race and, 112 belonging: authority and, 16; in Begging to Be Black, 125–26; sense of, 115; in South Africa, 10, 133–34; ubuntu and, 114; unity in diversity, 114. See also social unity beneficial titles, 90 Benjamin, Walter, 18–20, 39, 89, 148 Benton, Lauren, 34–36 Berlin Wall, 28 Biko, Steve, 131 bios, 29, 63, 68

Blanchot, Maurice, 77 Blixen, Karen, 138 bodies: racialization of, 125–26; as archival, 55, 58, 61–62, 65, 75; as border, 59; citizenship and, 55; expression of, 59–60; human rights and, 64–65; law and, 55; materiality of, 72–73; as object, 75; othering and, 64, 70–71, 77–78; as outlaw, 65; placement of, 59–60; refugee status of, 3, 39, 54–59, 61–62, 65–71, 75, 78–80, 149; refusal of, 60–61, 77; of the sovereign, 58; of sovereigns, 58–59; sovereign solitude and, 55; sovereignty and, 58–61, 72; sovereign violence and, 55, 75; as symbolic, 72–73, 79–80; visibility of, 60, 77–78 Boym, Svetlana, 137, 148–49 bracketing, 30, 37 Brennan, Francis Gerard, 84 British Constitution, 25 British Indian Ocean Territory (BIOT): Chagos Islanders and, 46; Chagos Archipelagos and, 25; Chagossians and, 26–28, 38–40, 46; continuation of, 23; dispossession of lands by, 40, 143; Friday (character) and, 40; Her Majesty’s Government (HMG) and, 41–42; Marine Protected Area (MPA) and, 26–27, 42; new constitution of, 41–42; Order in Council of, 41–44; regret and, 23–24, 26–27; sovereign violence and, 38; US State Department and, 23, 25, 42–43, 46 Brown, Wendy, 4 Burton, William Westbrooke, 93 Butler, Judith, 70, 75, 79 Buzzacott v Hill, 86 Cameron, Edwin, 112–15, 119–122 Campbell v Hall (1774), 43 Casalis, Eugene, 127 Chago Agalega Ltd., 26 Chagos Islanders: as belongers, 167n6; British Indian Ocean Territory (BIOT) and, 38–40; characterizations Page 183 →of, 28, 38–41; compensation to, 41, 45, 160n87; description of, 157n8; dispossession of lands as, 143; dispossession of lands of, 23, 38–41, 45; as Friday (character), 28, 45–46, 145; Her Majesty’s Government (HMG) and, 23, 38–40; Ilois and, 25; legal actions of, 38–39, 41–46, 160n87; lifestyle of, 45; perception of, 28, 45–46, 145; well being of, 27 Chagos Archipelagos: British Indian Ocean Territory (BIOT) and, 25; colonization of, 25; description of, 23; fishing in, 41; as a Marine Protected Area (MPA), 26–27, 42, 46–47; native population of, 25, 39–40; neglect of, 39; royal prerogative and, 25; strategic military interests and, 23, 26–28, 42–43, 46; tourism to, 41; transportation to, 41 Chagossians: access to Chagos Archipelagos, 46; British Indian Ocean Territory (BIOT) and, 26–28, 46; compensation to, 160n87; description of, 157n8; dispossession of lands of, 19; as Friday (character), 145; Friday (character) and, 38–39; Her Majesty’s Government (HMG) and, 46; legal actions of, 23, 160n87; perception of, 28, 38–39, 45–46, 145; public campaigns of, 23

Change of Tongue, A (Krog), 125 Chatterjee, Partha, 34 Christianity, 128 Christmas Island, 38, 54, 57, 59–60, 77 citizens: refugee body and, 55; sovereign solitude and, 50; sovereign violence and, 55 City of Tshwane Metropolitan Municipality v Afriforum, 112–15 Coetzee, Greig, 123 Coetzee, J.M., 126 Cold War, 1–2, 30 collective memory, 119 Colonial Laws Validity Act (1865), 42–44 Colonial Office, 39–40 colonization: archives and, 2; British Indian Ocean Territory (BIOT) and, 23–28, 38–44; legality of, 34–35, 43; naturalization of, 35; postcolonial and, 34; as a source of legal norms, 1; sovereignty and, 101; sovereign violence and, 88; state of exception and, 34 commonality, 68–69 communitarian, 68–69, 77–78, 136 community, 36–37, 77–78, 97–98, 103–7, 113, 124, 136 constituent powers, 3, 12, 97–98 constitutionalism, 12, 95, 153n6 constitutions: as act of literature, 12; as archive, 168n11; of Australia, 58, 60; authority and, 13; as bridges, 168n11; as a declarative act, 12; definition of, 69; description of, 12; of England, 122; human rights and, 69; as memorials, 168n11; as a source of legal norms, 1; of South Africa, 10, 110, 113, 130–31; ubuntu and, 124 Convention against Torture and Other Cruel and Inhuman or Degrading Treatment or Punishment, 60 Convention of the Prevention and Punishment of the Crime of Genocide, 85 coordinate of space, 147–48 Country of My Skull, The (Krog), 123, 125 CPCF v Minister for Immigration and Border Protection, 59–60 critical race studies, 66 Crusoe, Robinson, 19, 28, 38–39, 45–48, 51, 145, 159n64 cultural-historical dialectic, 18–19

Declaration of Independence, 103 Declaration of the Rights of Man and Citizen, 62–64 degenerate myths, 17, 111, 171n33 Deleuze, Gilles, 126, 128–29, 133 democracy, 10–11, 103–4 Derrida, Jacques, 7–9, 11–12, 44, 49, 72–73, 75–76, 96–97, 101–3, 135 Page 184 →dialectical image, xi–xii, 17–20, 39, 145 dialectical methodology, 36 diaspora, 148 Dicey, A.V., 122 Diego Garcia, 23, 25, 42–43, 47–48 Disgrace, 127, 134 Dlamini, Jacob, 137 Dominant Human Rights Discourse, 6 dominium, 93 Douzinas, Costas, 36–37 Douglas, Stacey, 167n3 Du Toit v Minister for Safety, 121 Emigrants, The (Sebald), 144 empty place of power, 10–11, 98, 151 “end of history” discourse, 1–2, 145 ethics, 17, 75, 78 ethno-national liberation, 5 European Court of Human Rights, 160n87 Excision Act (2001), 57 fictions: of the all-knowing sovereign, 76–77; archives and, 16, 19–20, 82, 88–91, 96–97; of Australian refugee camps, 19, 54, 57–58, 77, 80; basic norms and, 14; of Chagossian dispossession of their homes, 19, 27–28, 39–40, 48; colonial sovereignty and, 19, 90–92, 97, 110–11; consent and, 17; definition of, 14–17; Frank Kermode and, 14–17, 155n33; as facts, 20; “as if” and, 6, 11–12, 15, 96–97; indigenous sovereignty and, 88–91; law and, 1, 7, 9–11, 13–16, 18, 20–21, 24, 32–33, 37, 89–92, 107, 141; purpose of, 16–17; South African Constitution and, 10, 110–11; of sovereign authority, 9, 13–14, 18, 20–21, 80–81, 88–91, 96–97, 101; sovereign excesses and, 4; of sovereign solitude, 80; sovereign violence and, 20, 48. See also “as if”

Fischer, Timothy, 85–86 Fitzpatrick, Peter, 34, 37 forgetting, 89–90, 116, 143, 146, 151 form-of-life, 67–69 form of life: bareness and, 65; Catherine Malabou and, 75; commonality and, 68–69; definition of, 67; description of, 65; Eric Santner and, 75; Giorgio Agamben and, 65–66; Judith Butler and, 75; language and, 68–69; love and, 71; plurality, 75; potentiality and, 69–70; recognition and, 65–66, 70–71; refugees as, 61–62, 65, 67–68; representation and, 70–71, 75; signs and, 72–75; sovereignty and, 55, 67–68; sovereign violence and, 56, 70–71; subjection of, 75 Foucault, Michel, 29, 66, 72–73 French Constitution, 23–24 French Foreign Legion, 23–24 French imperialism, 129 French Revolution, 62–63, 153n6 Freud, Sigmund, 7–8, 14–15, 39, 71 Friday (character), 19, 28, 38–40, 45, 47–48, 51, 145 Froneman, Johan, 115 genocide, 1, 21, 81–87, 90. See also Convention of the Prevention and Punishment of the Crime of Genocide Gillard, Julia, 54 globalization, 145 global “police actions,” 28 global powers, 32 Goodrich, Peter, 75 Großraum, 29, 31–33 group psychology, 14–15 Grundnorm, 9, 14 Guantanamo Bay, 38 Gulf War (1991), 28 Gummow, William Montague Charles, 91, 94, 101 Habermas, Jürgen, 153n6 Haitian Revolution of 1791, 129

Hanson, Pauline, 85–86 Harris, Verne, 9 Hayne, Kenneth Madison, 60 Page 185 →Hegel, Georg Wilhelm Friedrich, 36 Heidegger, Martin, 77 Her Majesty’s Government (HMG): British Indian Ocean Territory (BIOT) and, 26–28, 38–42; Chagos Islanders and, 23, 38–40, 46; Chagossians and, 46; Foreign Office memo and, 23, 26–28, 46–48; Marine Protected Area (MPA) and, 26–27, 42; regret and, 23–24, 26–27; US State Department and, 42–43 historical materialism, 19 historicist, 9, 36 historiography: abolishment of, 147; accumulated disasters within, 148; antimetaphysical, 94–95, 99; catharsis of, 123; constitutionalism and, 95; contextualist approach to, 96–97; corruption of, 137; deconstruction of, 147; erasures of, 113–14, 116; exclusion and, 145; guilt of, 95; justice and, 83, 89, 95–96, 115–17; law and, 106–7, 145; legitimacy of, 95; moral, 94–95; nationalistic, 94; nostalgia and, 137–38; ontology and, 96; perversion by, 89, 143; problems of, 7; redemptive, 91–96, 107, 115–16, 148; rivals, 96–97; transformation and, 7; unusability of, 146 Hobbes, Thomas, 31, 36–37, 67–68, 99–100, 103 Hodan, Yasin, 54 Hoffman, Leonard Hubert, 38, 41–46 home, 148–49 House of Lords, 45 Howard, John, 53–54, 85–86 human rights, 4–6, 62–64, 66–67, 69, 103 Human Rights and Equal Opportunity Commission, 87 Hunter, Ian, 92–97, 99, 101, 165n44 Hussain, Nasser, 34–35 identity, 11, 24, 30, 104–7, 125 Imag(in)ing Home (Shanaanthanan), 148 Immigration Ordinance (1971), 40 Immigration Ordinance (2000), 45 interconnectedness, 128–29, 136 International Criminal Court Statute, 85 ipseity, 44, 101–5

James, C.L.R., 129 Jeffrey, Laura, 25, 48 Jones, Stephanie, 159n65, 161n6, 167n5 juris dicere, 36 jurisdiction, 36, 44, 50, 55 jus publicum Europaeum, 30–33 justice, 63, 96 Kahn, Paul, 37 Kant, Immanuel, 9, 12–13, 73, 96, 99–100 Kantorowicz, Ernst, 58–59, 73 Kelsen, Hans, 9, 14–15 Kermode, Frank, 9, 16–17, 111, 155n33 Kerruish, Valerie, 84 Khulumani Support Group, 119–20 Kiefel, Susan Mary, 60 Kiefer, Anslem, 146–47 King John, 38 King Moshoeshoe, 126–28 Klee, Paul, 19 Krog, Antjie, 123–29, 136–37 Kruger v Commonwealth of Australia, 81, 83–85 Lacan, Jacques, 77 Lake Eyre, 86 language, 68–69, 79–80, 91, 125, 133–36, 144, 146 law: as act of literature, 11–12, 15, 20–21; amphibious nature of, 44–45; as archive, 6, 8, 17–18, 37, 81, 85; archive and, 2, 5; authority of, 8, 12–13, 18, 24; bare sovereignty and, 36–37; capital punishment and, 8; colonial, 34–35; colonial foundation of, 88, 107; colonial sovereign violence and, 88; colonial usurpation and, 34; common law, 94, 106–7, 112; community and, 36–37;Page 186 → definition of, 5; destruction and, 81; exclusion and, 145; fable and, 145–46; fact and, 84–85; facts and, 91; fictions of, 91, 96–97; freedom and, 8; future impact of, 7–8; genocide and, 83–85; heteronomous, 50; historicity and, 83–85; historiography and, 106–7, 145; as the “as if,” 7, 88; “as if” and, 9, 20, 145–46; inclusion and, 66; injustices of the past and, 88; instability of, 7; language of, 91; memorial work of, 1; moral, 93–94; origin of, 7, 9, 107; ownership and, 8; postcolonial, 88; pure law, 146; purification of, 145–46;

recognition and, 88; record keeping of, 146; refugee body and, 55; as self-sufficient, 15; as situational, 51; sovereign and, 99; sovereign exceptionalism and, 27; sovereign power and, 9; sovereign powers and, 4; sovereign solitude and, 33; sovereignty, 2–4; sovereignty and, 7–8, 37, 101; sovereign violence and, 5, 18, 20–21, 32, 43, 122, 145; spatialization of, 55; as the “as such,” 88; truths and, 18; violence and, 8–9; war and, 28 Laws, John Grant McKenzie, 40 Lefort, Claude, 10–11, 15–16, 98 legal norms, 81 Levinas, Emmanuel, 77 Lévi-Strauss, Claude, 9 Lewis, Bernard, 82 liberal democracy, 1, 28 liminality, 127, 133–34, 138–39 Lim v Minister for Immigration (1992), 57–58 Lingis, Alphonso, 77 literature, 17, 125, 133–36, 139. See also A Change of Tongue; Agaat; Begging to Be Black; Country of My Skull Locke, John, 32–33, 103 Lonmin, 109 Loughlin, Martin, 97–101, 104, 165n44 L’Ouverture, Toussaint, 129 Lyotard, Jean-François, 64, 82 M68, 57–59 Mabo v Queensland (No 2), 88–92, 98, 101 Magna Carta, 38, 112 Malabou, Catherine, 71–75 Mandela, Nelson, 126, 136 Manus Island, 38, 54, 60–61 Marikana platinum mine, 109, 111 Marin, Louis, 76 Marine Protected Area (MPA), 26, 42, 46–47

maritime powers, 30–31 Maritime Powers Act (2013), 59 Masoumali, Omid, 53, 55, 70 materiality, 55–56, 68 Mauritius, 38, 40 Mawani, Renisa, 8 Mbeki, Thabo, 118 Mbembe, Achille, 115–16 McBride, Robert, 117–20 Meister, Robert, 4–6 memory, 146, 149, 151 Michelet, Jules, 8 Migration Act (1958), 57 Migration Amendment (Unauthorized Maritime Arrivals) Act (2013), 56 Miliband, David, 42 Miller, J. Hillis, 77–78 Mills, Richard, 47 Minkkinen, Panu, 13 Minority Treaties, 62 missionaries, 90, 128 modernity, 11, 16, 29, 34, 36, 39, 137–38, 148 Mogoeng, Mogoeng, 112–15, 124 Monroe, James, 31 Monroe Doctrine, 31 montage, 19, 39 morality, 97, 99–100 More, Thomas, 31 Mouffe, Chantal, 31–33 multipolar world, 33

Page 187 →MV Tampa, 53–54 myths, 15–16, 19, 155n33 Mzlikazi, 126 Naas, Michael, 96 Nancy, Jean-Luc, 9, 15–16, 47, 77, 103–7 nationalism, 2, 24, 139, 145, 151 National Liberation Front (FLN), 23 National Security Commission, 59–60 National Union of Mineworkers, 109 native title, 85–86, 88–90 Native Title Amendment Act (1998), 86 nativism, 137 natural law, 14, 96–97, 99–100 Nauru, 38, 53–54, 57–61 Negri, Antonio, 3, 153n6 Nichanian, Marc, 81–83 Nietzsche, Friedrich, 13–14, 16–17, 49, 148 nihilism, 15–16, 49 nomos: auto-nomos, 49–50; definition of, 29–30; destruction of, 31; land appropriations and, 30–32; legal actions of Chagos Islanders and, 39; maritime powers and, 30–31; migrants and, 56–61; social identity and, 30; social unity and, 30; sovereign solitude and, 55; state of exception and, 32 Northern Territory Aboriginal Ordinance of 1918, 83–84 nostalgia, 137–38, 148 Nulyarimma v Thompson, 85–86 Occidental law, 34 Official Secrets Act 1989, 27 One Nation party, 85–86 Operation Sovereign Borders, 54 othering, 64, 71, 77–78, 105, 128, 144 Out of Africa (Blixen), 138

Pacific Solution, 56–57 Papau New Guinea, 38, 54 Paris Evangelical Missionary Society, 127 Past Imperfect (Greig Coetzee), 123 pastoral leases, 86, 90 Patton, Paul, 126, 133–34 performative utterances, 36–37 Petrus (character), 127, 134 phono-centrism, 96 piracy, 31 plurality, 66–67, 98 Pocock, J.G.A., 94 positive law, 14 positive norms, 14 positivism, 14, 30 postapartheid, 10, 109, 112, 122, 124, 127, 130–32, 138–39. See also antiapartheid; apartheid postcolonial, 5, 18, 66, 89, 101, 127–29, 132, 134, 145. See also anticolonial poststructural, 66 potentiality, 69–70 power, empty place of, 10–11, 98, 151 precarity, 70–71, 75 Promotion of National Unity and Reconciliation Act (1995), 117, 119, 121, 131 radical title, 90 Rajapaksa, Mahinda, 85 Ramose, Mogobe, 124, 129–30, 136–37 Ramphosa, Cyril, 110 Rancière, Jacques, 63–65 rebellions, 3, 153n6 reconciliation, 117, 119

refugee body: as archive, 55, 58, 61–62, 65, 75; as border, 59; citizenship and, 55; expression of, 59–60; human rights and, 64–65; law and, 55; materiality of, 72–73; as object, 75; othering and, 64, 70–71, 77–78; as outlaw, 65; placement of, 59–60; refusal of, 60–61, 77; sovereign solitude and, 55; sovereignty and, 58–61, 72; sovereign violence and, 55, 75; as symbolic, 72–73, 79–80; visibility of, 60, 77–78 refugee camps: of Australia, 53–54; rape in, 54, 58; sexual abuse in, 54, 58; suicide in, 54 Page 188 →Refugee Convention of 1951, 53, 57, 60–61 refugees: as act of defiance, 78; as archive, 61–62, 65; as artists, 148–51; community and, 66–67, 77; continued detention of, 57, 78–79; court jurisdiction and, 57; experiences of, 64–65; as a form of life, 61–62, 65, 67–68; Hannah Arendt on, 61; home and, 148–51; human rights and, 66–67; judicial review and, 57; law and, 66–67; meaning of, 61; natality and, 63; nationality and, 63; nostalgia of, 148–151; precarity of, 70–71, 75; representation of, 77; resistance and, 78; sovereignty and, 62; from Sri Lanka, 148–51; title of, 61, 78; Western nation-states and, 56, 61; as writers, 79–80, 149 resistance, 2, 64, 117, 137 res nullius, 31 res omnium, 31 revolutions, 3–5, 62–63, 76, 118, 122–23, 129, 137–39 Reynolds, Henry, 92–94 Rhodes Must Fall, 112, 115–16 Rosenzweig, Franz, 71 Rousseau, Jean-Jacques, 4, 48, 98, 153n6 Royal Courts of Justice, 43 royal prerogative, 25, 41–44 R v Murrell and Bummaree, 93 Santner, Eric, 56, 71–72, 74–75, 138 Schmitt, Carl, 24, 28–29, 31, 35, 37, 49–51, 66, 75, 102, 153n6 Scott, David, 5–6, 129 Shaka, 126 Shanaathanan, T., 148–51 Sharpeville massacre (1960), 109 Shell, Marc, 38 Sitze, Adam, 122, 124 social contract theory, 153n6 social unity, 11, 15, 18, 24, 30, 38–39. See also belonging

South Africa: Afrikaners and, 113, 125, 139; amnesty, 116–21, 131–32; apartheid and, 130; apartheid violence of, 109–10, 116–20, 123–24; belonging and, 110–11, 136; black liberation within, 126; Boer settlers, 126–27, 138; citizens of, 110–11; colonial legacies of, 126; compensation by, 131; Constitutional Court of, 110; constitutional supremacy of, 110, 131; constitution of, 10, 130–31; decolonization of, 114–16, 125–36; descendants of colonial settlers of, 10, 126–28, 133–34, 136–37; elite blacks of, 109–10; English settlements of, 127; farm novels of, 139; globalization of, 125; “as if” of, 111; independence of, 139; indigenous communities of, 127–28, 130–31, 134–35; indigenous sovereignty and, 126–30, 132; languages of, 125, 133–36; majoritarianism and, 131; massacres within, 109, 111–12, 123; mines of, 109; nostalgia about, 137–38; parliamentary supremacy of, 110, 130–31; Parliament of, 110; police violence of, 109; post 1994 constitution of, 110, 113; postapartheid law of, 10; postapartheid politics of, 10; postapartheid violence of, 109; postcolonial, 134; race and, 125–26, 130–31; reconciliation within, 117, 119, 129–35; recovery of lost sovereignty, 129; resistance and, 116; rights of conquest and, 130; transitional justice discourse, 122; ubuntu and, 130–32, 136; victims within, 119–121; white power and, 116 South Africa belongs to all who live in it, 10, 110, 112–13, 124, 130 sovereign events, 7–9, 20, 24, 51, 83, 91–92 sovereign exceptionalism, 27–29 sovereign plentitude: autonomy and, 24; colonial foundation of, 106–7; colonial usurpation and, 34; Friday (character) and, 46; independence and, 24; ipseity and, 102–3; nationalism and, 24; Robinson Crusoe and, 46; self-determinationPage 189 → and, 24; sovereign solitude and, 24, 34, 49–50; sovereignty and, 101; sovereign violence and, 97 sovereign powers: excesses of, 55; law and, 4, 9 sovereigns: archaic, 17; authority of, 18; bodies of, 58–59; exceptionality and, 24; excesses of, 4–5, 23–24; natural body of, 58–59; naturalization of, 43; political body of, 58–59; powers of, 4, 9, 19–20, 24–25, 28; royal prerogative and, 25; self-knowledge of, 13; solitude and, 24 sovereign solitude: amphibious law and, 44–45; autonomy and, 24–25, 145; citizens and, 50; community and, 78; democratic government and, 50; description of, 49; displacement of populations and, 25; fiction of, 80; independence and, 24–25; as an island, 50–51; law and, 33; legal mediation and, 48; nationalism and, 24, 79; nomos and, 55; NOTHING and, 49; production of, 33; racialization and, 28; refugee body and, 55; regret and, 26–27; Robinson Crusoe and, 38, 48; self-determination and, 24; self-sufficiency of, 145; sovereign plentitude and, 24, 34, 49–50; sovereignty and, 37, 104–5; sovereign violence and, 48, 55 sovereignty: abandonment by, 39; absolute sovereignty, 77; as all knowing, 76–78; archaic, 25, 28, 37–39, 73–74; archives and, 3, 24, 51, 87, 111; authority of, 5–6, 51, 103–4; autonomy and, 37, 49–50, 97–101, 151; bare sovereignty, 33–38; bracketing of, 37; Carl Schmitt and, 66; citizens and, 97–99; cognate terms for, 37; colonial, 89, 132; colonial foundation of, 89, 92, 98–99, 101, 145; community and, 37, 97–99; constituent powers and, 153n6, 165n48; crisis of, 56; critique of, 13; critiques of, 96; death of, 49; decolonization of, 151; deconstruction of, 75–76; definition of, 2–3, 99; democracy and, 3; destruction of facts by, 81; distribution of power and, 32; exceptionality and, 37, 48–49, 84–85; exclusion and, 3; facts and, 7, 96; fictions and, 111; form of life and, 55; forms of, 32; genocide and, 83–85, 87; human rights and, 62–64; “as if” and, 36–37, 76–77, 88–89, 102–3; imperial, 35, 132, 145; indigenous communities and, 2, 38–40, 132; indivisibility of, 102; instability of, 7; ipseity of, 44, 101–2, 105; knowledge as, 76; law and, 2–4, 7–8, 37, 101; as legal, 99; legal norms and, 81; legitimacy of, 24; limits and, 37, 102, 104–7; malleability of, 101; migration and, 56; modern, 29; monism of, 99; movement of people and, 3; national liberation and, 129; naturalization of, 51, 102; nature of, 3; networks of resistance and, 2; NOTHING and, 49; origin of, 7; past perfect, 129–37; as political, 97–99; political and, 97–101; political freedom and, 2; political life and, 66; postcolonial and, 34, 101; reconciliation within, 143, 151; refugee body and, 58–61, 72; refugees and, 62; religion and, 97–101; reproduction of, 75; self-determination and, 3; separation

and, 104–7; shifting, 126; social movements and, 2; sophism of, 153n6; sovereign of, 66–67, 99; sovereign plentitude and, 101; sovereign solitude and, 37, 104–5; sovereign violence and, 37, 70, 111; spatialization of, 60–61; state of exception and, 24–25, 32–33, 35; as the “as such,” 7; “as such” and, 102–3; theological, 36; transhistorical popular, 37; as unaccountable, 6; value of life and, 73; as violence, 29; as a visive power, 60, 75; Western nation-states and, 145; will of, 49 Page 190 →sovereign violence: alliances of, 70–71; archive and, 2, 56, 111; citizens and, 55; colonization and, 88; community membership and, 1; courts and, 48; cruelty as, 18; displacement of populations as, 6; dispossession of lands as, 6, 38–40; forgetting of, 89–90, 146; form of life and, 56, 70–71; historical significance of, 1; “as if” and, 37–38; indifference as, 18; judicial delimitation of, 4; law and, 5, 20–21, 32, 43, 55, 88, 122, 145; limits of, 41; literature of, 136; property rights and, 1; refugee body and, 55, 75; resistance to, 70–71; sovereign plentitude and, 97; sovereign solitude and, 48, 55; sovereignty and, 37, 70, 111; unaccountability and, 6 Sri Lanka, 143 Sri Lankan Civil War, 143, 151 stare decisis, 8 Stolen Generation of Australia, 6, 81, 84, 86–87, 90 Stoler, Ann Laura, 9 structural anthropology, 9 superego, 15 Taussig, Michael, 39 technД“, 46–47 “Ten Point Plan,” 85–86 terra nullius, 88–91 The Citizen v McBride, 119–22 The High Priestess (Kiefer), 146–47 The Incomplete Thombu (2011), 149–51 Thomasius, Christian, 99 titles. See beneficial title; native title; radical title Tomlins, Christopher, 94–95 torture, 42, 103 totalitarianism, 11–12, 17, 29, 66 transhistorical popular sovereign, 37 transitional justice discourse, 4–6, 143 Truth and Reconciliation Commission, 112, 116–24

Tumult Commissions, 123 Tutu, Desmond, 126, 136 ubuntu, 114–15, 124, 128, 130–32 Umkhonto we Sizwe (Spear of the Nation), 117 unhoming, 126–27, 133–34, 136–37, 143 United Nations, 26, 85 United States, 23, 25–28 Universal Declaration, 38–39 uprisings, 3. See also rebellions; resistance US State Department, 23, 25, 42–43, 46 US Supreme Court, 37 Vaihinger, Hans, 9, 13–14, 16 van Marle, Karin, 136–37 van Nieker, Marlene, 138 Vienna Convention on Diplomatic Relations (1961), 27 Vismann, Cornelia, 146 von Pufendorf, Samuel, 99–100 war crimes, 85 wars, 1–2, 17, 28, 30, 62, 82, 143, 151 WikiLeaks, 23, 26–28, 47–48 Wik v Queensland, 90, 98, 101 Wissenschatftskolleg (Institute for Advanced Study), 126, 133 World War I, 62 World War II, 17, 62, 82 xenophobia, 112. See also refugees zoē, 29, 68 Zweite, Armin, 146–47