The Criminal Spectre in Law, Literature and Aesthetics: Incriminating Subjects 0415236061, 9780415236065

Table of contents :
Cover
Title Page
Copyright Page
Table of Contents
List of figures
Acknowledgements
1 Introduction: “This subject of ghosts”
2 Spectacularizing crime, ghostwriting the law
3 Mad, murderous and dangerous to know
4 The feminine phantom: women, crime and fantasy
5 Modern forensics: photography and other suspects
6 The genius of crime
References
Index

Citation preview

The Criminal Spectre in Law, Literature and Aesthetics

The nineteenth century was haunted by crime, by its signs, stories and the shapes of institutions designed for its regulation. That haunting persists today in a popular fear of crime that shapes political agendas, and through images presented in the media. This book analyses the legal and aesthetic discourses that combine to shape the image of the criminal, and that image’s contemporary endurance. Peter Hutchings examines a variety of texts, from literature, photog­ raphy, cinema and law, and draws material from a spectrum of disciplines. He maps the evolution of the criminal spectre through the discourses of phrenology, criminology, anthropometry and psychology, and traces this spectre in the law of criminal responsibility and forensic evidentiary tech­ niques. Emerging from these investigations is an important theoretical framework concerning formations of subjectivity that builds on Foucault, Derrida and Walter Benjamin. This book will be of essential interest to sociologists, psychologists, cultural historians, criminologists and those working in the field of legal studies. Peter J. Hutchings lectures in Cultural Inquiry at the University of Western Sydney, Australia.

Routledge Advances in Sociology

This series aims to present cutting edge developments and debates within the field of sociology. It will provide a broad range of case studies and the latest theoretical perspectives, while covering a variety of topics, theo­ ries and issues from around the world. It is not confined to any one particular school of thought. 1. Virtual globalization Virtual spaces / tourist spaces David Holmes 2.

The criminal spectre in law, literature and aesthetics Incriminating subjects Peter J. Hutchings

The Criminal Spectre in Law, Literature and Aesthetics Incriminating subjects

Peter J. Hutchings

D Routledge Taylor &. Francis Group LONDON AND NEW YORK

First published 2001 by Routledge Published 2014 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon 0 X 1 4 4R N Simultaneously published in the USA and Canada by Routledge 711 Third Avenue, New York, N Y, 10017, USA Routledge is an imprint o f the Taylor & Francis Group, an informa business © 2001 Peter J. Hutchings Typeset in Sabon by Florence Production Ltd, Stoodleigh, Devon All rights reserved. N o part of this book may be reprinted or reproduced or utilized in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. British Library Cataloguing in Publication D ata A catalogue record for this book is available from the British Library Library o f Congress Cataloging in Publication D ata Hutchings, Peter (Peter J.) The criminal spectre in law, literature and aesthetics: incriminating subjects/Peter J. Hutchings, p. cm. Includes bibliographical references and index. 1. Criminology—Philosophy. 2. Crime in popular culture. 3. Crime in literature. 4. Criminals in literature. 5. Crime in art. I. Title HV6030 .H88 2001 364—dc21

ISBN 13: 978-0-415-23606-5 (hbk)

00-062723

Contents

List of figures Acknowledgements

vii ix

1

1

Introduction: “This subject of ghosts”

2

Spectacularizing crime, ghostwriting the law

26

3

Mad, murderous and dangerous to know

53

4

The feminine phantom: women, crime and fantasy

87

5

Modern forensics: photography and other suspects

127

6

The genius of crime

166

References Index

199 213

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Figures

1.1 1.2

Spirit photograph and normal comparison Francis Galton, “ Composites, made from portraits of criminals convicted of murder, manslaughter or crimes of violence” 1.3 “ Fairy offering posy of hare-bells to Elsie” 2.1 “ The Nemesis of Neglect,” Punch, 1888 2.2 Two versions of a standard execution scene, c. 1823 2.3 Jeremy Bentham, “ A General Idea of a Penitentiary Panopticon” 2.4 “ Useful Sunday Literature for the M asses,” Punch, 1849 4.1 “ The death of M ary Rogers,” cover, Tragic Almanack, 1843 4.2 Messalina: title page, Cesare Lombroso and Guglielmo Ferrero, L a donna delinquente, la prostituta e la donna normale, Torino, Roux, 1893 5.1 Francis Galton, “ Characteristic peculiarities in Ridges” and “ Systems of Ridges, and the Creases in the Palm” 5.2 Francis Galton, “ Classification of fingerprint patterns: arches and loops” 5.3 J.C . Lavater, Catherine the Great 5.4 J.C . Lavater, Comparison of German and African skulls 5.5 J.C . Lavater, Faces of men which resemble beasts 5.6 Alphonse Bertillon, “ Summary of anthropometric description” 5.7 Alphonse Bertillon, “ Reproduction of a judicial photograph (profile and full face) with a relevant descriptive note combined with a portrait parle” 5.8 Alphonse Bertillon, “ Reverse of a descriptive form, combined with a portrait parle” 5.9 Cesare Lombroso, “Types of delinquents and thieves” 5.10 Francis Galton, “The Jewish Type” 5.11 Alphonse Bertillon, “ General shape of the head, profile view” 5.12 Eugene Atget, “ Belleville: site of the massacre of hostages (26 May, 1871), 85 rue H axo,” 1901

15

16 18 28 35 38 46 96

113 129 130 132 133 134 142

143 144 145 146 147

154

viii

Figures

5.13 Eugene Atget, “ Interior of a worker’s home, Rue de Romainville,” 1910 5.14 Eugene Atget, “ Interior at the home of Mr F, trader, Rue Montaigne. The kitchen,” 1910 6.1 Sidney Paget, “ Professor Moriarty stood before me” 6.2 Sidney Paget, “ The death of Sherlock Holmes”

155 156 188 192

Acknowledgements

Previous publications A version of Chapter 2, “ Spectacularizing crime: ghostwriting the law,” was first published in Law and Critique, 1999, 10: 27-48, © 1999 Kluwer Academic Publishers, and is reproduced here with kind permission from Kluwer Academic Publishers. It was first delivered as a keynote address at Legal Imaginations (15th Annual Law and Society Conference, La Trobe University, December 3-5, 1997), and I would like to thank Ian Duncanson, the conference organizer, for the invitation which prompted me to write this essay. A shorter version of Chapter 3, “Mad, murderous and dangerous to know: subjectivity below and beyond the law,” was presented as a paper at the 4th Annual Conference of the Law and Literature Association of Australia (Queensland University of Technology, 30 September-2 October, 1994). In Chapter 3, a portion of the section “American psychos” is taken from “Violence, Censorship and the Law,” Cardozo Studies in Law and Literature, 1994, 6.2: 203-24, © 1994 Yeshiva University. Earlier versions of Chapter 5, “Modern forensics: photography and other suspects,” were published in Australian Feminist Law Journal, September 1996, 7: 37-60, © Australian Feminist Law Foundation Inc; and Cardozo Studies in Law and Literature, Fall/Winter 1997, 9.2: 229-43, © 1997 Yeshiva University. A shorter version of Chapter 6, “The genius of crime,” was presented as a paper at the 8th Annual Conference of the Law and Literature Association of Australia (Brisbane, Griffith University, July 18-20, 1997).

x

Acknowledgements

Quotations Quotations from Rex Butler, An Uncertain Smile: Australian Art in the '90s, Sydney, Artspace, 1996, © 1996 Artspace and the authors, repro­ duced with the kind permission of Artspace and the author. Quotations from American Psycho by Bret Easton Ellis, London, Picador, 1991, © 1991 Bret Easton Ellis, reproduced by permission of the author c/o Rogers, Coleridge & White Ltd., 20 Powis Mews, London W ll 1JN in association with International Creative Management, New York; and Vintage Books, a Division of Random House Inc. Quotations from Michel Foucault, Discipline and Punish: The Birth of the Prison, trans. Alan Sheridan, London, Allen Lane, 1977, © Alan Sheridan, 1977, reproduced with the permission of Penguin Books, UK. Quotations of dialogue transcribed from Henry: Portrait of a Serial Killer, screenplay by Richard Fire and John McNaughton, © 1986 Maljack Productions, reproduced with the kind permission of MPI Media Group and the authors. Quotations from Molly Nesbit, Atget3s Seven Albums, New Haven and London, Yale University Press, 1992, © 1992 by Yale University, repro­ duced with the kind permission of Yale University Press.

Illustrations Figure 1.1 Spirit photograph and normal comparison, from Arthur Conan Doyle and others, The Case for Spirit Photography, London, Hutchinson & Co., 1922, Figures 14 and 15 (Courtesy of the Adyar Lending Library, Sydney). Figure 1.2 Francis Galton, “ Composites, made from portraits of crimi­ nals convicted of murder, manslaughter or crimes of violence,” from Karl Pearson, The Life, Letters and Labours of Francis Galton, Vol. 2, Cambridge, Cambridge University Press, 1924, Plate XXVIII (Reproduced with the permission of Cambridge University Press). Figure 1.3 “Fairy offering posy of hare-bells to Elsie,” from Arthur Conan Doyle, The Coming o f the Fairies, London, Hodder and Stoughton, 1922, Plate D. Reproduced with the permission of the National Museum of Photography, Film & Television/Science & Society Picture Library.

Acknowledgements

xi

Figure 2.1 “The Nemesis of Neglect,” Punch, 29 September 1888, Vol. 95 (Courtesy of the Rare Books Collection, Fisher Library, University of Sydney). Figure 2.2 Two versions of a standard execution scene, c. 1823. Originally reproduced as Figures 9.5, 9.6 in Thomas Laqueur, “ Crowds, Carnival and the State in English Executions, 1604-1868,” in A.L. Beier, David Cannadine and James M. Rosenheim (eds), The First Modern Society: Essays in English History in Honour of Lawrence Stone, Cambridge, Cambridge University Press, 1989 (Reproduced here courtesy of Thomas Laqueur). Figure 2.3 Jeremy Bentham, “A General Idea of a Penitentiary Panopticon . . . , ” in The Works of Jeremy Bentham, ed. John Bowring, Vol. IV, Edinburgh, William Tait, 1843. Figure 2.4 “Useful Sunday Literature for the Masses, “Punch, 1849, Vol. 17 (Courtesy of the Rare Books Collection, Fisher Library, University of Sydney). Figure 4.1 “The death of Mary Rogers,” cover, Tragic Almanack, 1843 (Reproduced courtesy of John Welsh). Figure 4.2 Messalina: title page, Cesare Lombroso and Guglielmo Ferrero, La donna delinquente, la prostituta e la donna normale, Torino, Roux, 1893 (Reproduced by permission of the National Library of Australia). Figure 5.1 Francis Galton, “ Characteristic peculiarities in Ridges” and “ Systems of Ridges, and the Creases in the Palm,” Finger Prints, London and New York, Macmillan, 1892, Figures 5 and 6, Plate 3. Figure 5.2 Francis Galton, “ Classification of fingerprint patterns: arches and loops,” Finger Prints, London and New York, Macmillan, 1892, Figures 11 and 12, Plate 7. Figure 5.3 Catherine the Great, from J.C. Lavater, Essays on Physio­ gnomy, trans. Thomas Holcroft, London, G.G.J. and J. Robinson, 1789, Vol. 3 (Courtesy of the Rare Books Collection, Fisher Library, University of Sydney). Figure 5.4 Comparison of German and African skulls, from J.C. Lavater, Essays on Physiognomy, trans. Thomas Holcroft, London, G.G.J. and J. Robinson, 1789, Vol. 2 (Courtesy of the Rare Books Collection, Fisher Library, University of Sydney).

xii

Acknowledgements

Figure 5.5 Faces of men which resemble beasts, from J.C. Lavater, Essays on Physiognomy, trans. Thomas Holcroft, London, G.G.J. and J. Robinson, 1789, Vol. 2 (Courtesy of the Rare Books Collection, Fisher Library, University of Sydney). Figure 5.6 Alphonse Bertillon, “Releve du signalement anthropometrique,” frontispiece, Identification anthropometrique; instructions signaletiques, Paris, Melun, 1893 (Courtesy of the State Library of New South Wales). Figure 5.7 Alphonse Bertillon, “ Reproduction par la photogravure d’une photographie judiciaire (profil et face) avec notice signaletique y relative combinee en vue du portrait parle” from Identification anthropometrique; instructions signaletiques, Paris, Melun, 1893, Planche 80 (Courtesy of the State Library of New South Wales). Figure 5.8 Alphonse Bertillon, “Verso d’une notice signaletique combinee en vue du portrait parle” from Identification anthropometrique; instruct­ ions signaletiques, Paris, Melun, 1893, Planche 81 (Courtesy of the State Library of New South Wales). Figure 5.9 Cesare Lombroso, “Tippi di delinquente e ladri,” from Uuomo delinquente in rapporto aWantropologia, alia giurisprudenza ed alle disci­ pline carcerarie (1876), ed. and riduzione Gina Lombroso, Torino, Fratelli Bocca, 1924. Figure 5.10 Francis Galton, “The Jewish Type,” from Karl Pearson, The Life, Letters and Labours of Francis Galton, Vol. 2, Cambridge, University Press, 1924, Plate XXXV (Reproduced with the permission of Cambridge University Press). Figure 5.11 Alphonse Bertillon, “Forme generate de la tete vue de profil,” from Identification anthropometrique; instructions signaletiques, Paris, Melun, 1893, Planche 41 (Courtesy of the State Library of New South Wales). Figure 5.12 Eugene Atget, “Belleville: Emplacement du massacre des Otages (26 mai 1871) 85 rue Haxo,” 1901 © Phototheque des Musees de la Ville de Paris/93 CAR 3200 A (Courtesy of Musee Carnavalet, Paris and the Phototheque des Musees de la Ville de Paris). Figure 5.13 Eugene Atget, “Interieure d’un Ouvrier, Rue de Romainville,” 1910 (Courtesy of Bibliotheque Historique de la Ville de Paris). Figure 5.14 Eugene Atget, “Interieure de Mr F, Negociant, Rue Montaigne. La Cuisine,” 1910 (Courtesy of Bibliotheque Historique de la Ville de Paris).

Acknowledgements

xiii

Figure 6.1 Sidney Paget, “Professor Moriarty stood before me,” Strand Magazine, December 1893 (Courtesy of the Rare Books Collection, Fisher Library, University of Sydney). Figure 6.2 Sidney Paget, “The death of Sherlock Holmes,” Strand Magazine, December 1893 (Courtesy of the Rare Books Collection, Fisher Library, University of Sydney).

Professional and personal This book was completed during a semester’s leave under the University of Western Sydney, Hawkesbury Professional Enhancement Programme, during which time I was a Visiting Research Fellow at the Research Institute for Humanities and Social Sciences (RIHSS), University of Sydney, and I would like to thank the former director Associate Professor Paul Patton, current director Professor Margaret Harris, and the RIHSS staff Rowanne Couch and Erica Seccombe for their hospitality and assistance. To my colleagues in the New Humanities Transdisciplinary Research Group, UWS, Hawkesbury (Ruth Barcan, Lindsay Barrett, Marion Benjamin, Chris Fleming, Jane Goodall, Mary Harvie, Bob Hodge, Sara Knox, Steven Maras, Kath McPhillips, John O’Carroll, David Phillips, Katrina Schlunke, Brendon Stewart, Anthony Uhlmann) thanks for their interest, encouragement and more material forms of support. A special thanks to Keri Wilesmith for technical and logistical support. For their generous assistance in obtaining images: Zora Maresh (Adyar Lending Library, Sydney), Liza Daum (Bibliotheque Historique de la Ville de Paris), Thomas Laqueur, Paul Livingston (National Library of Australia), Bruno Pouchin (Phototheque des Musees “Ville de Paris” ), the staff of Photowise Imaging, University of Sydney, Neil Boness and Richard Ratajczak (Rare Books Collection, Fisher Library, University of Sydney) and John Walsh. At Routledge UK: Joe Whiting, Simon Whitmore and Annabel Watson. For diverse encouragement and advice: Judith Barbour, Maralyn Bennett, Rex Butler, Deirdre Coleman, Rodney Davey, Gill Dawson, Ian Duncanson, John Frow, Judith Grbich, June Hutchings, Karen Hutchings, Matthew Hutchings, Peter K. Hutchings, Jay Johnston, William MacNeil, Shaun McVeigh, Graeme Orr, Simon Petch, Penny Pether, Peter Rush, Maureen Sabine, Terry Threadgold, Richard Weisberg and, especially, Alison Young for her editorial suggestions and support. For cheer, Marcel Mellor Hutchings. And, for caring and unusual patience, Annelise Mellor.

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1

Introduction “This subject of ghosts”

If any section of history has been painted grey on grey, it is this. Men and events appear as Schlemihls in reverse, as shadows which have become detached from their bodies. Karl M arx, The Eighteenth Brumaire o f Louis Bonaparte (1852)1 The authority of the modern bureaucratic state . . . can be fully human­ ized only through illusionism. The whole nature and quality of abstracted authority - the very essence of its superior effectiveness - lies in the unrepresentability of its means of representation. John Bender, Imagining the Penitentiary2 I consumed the whole time in thinking how strange it was that I should be encompassed by all this taint of prison and crime; that, in my child­ hood out on our lonely marshes on a winter evening I should have first encountered it; that, it should have reappeared on two occasions, starting out like a stain that was faded but not gone; that it should in this new way pervade my fortune and advancement. Charles Dickens, Great Expectations (1860-1 )3

Ghostly, illusory powers; a pervasive taint of criminality: the nineteenthcentury subject is haunted by crime, by its signs and stories and the shapes of institutions designed for its regulation. Pip’s experience of a criminal taint which spreads from the shadows of the prison hulks and his working-class origins in the marshes to his career as a City gentleman was to become increasingly unexceptional. Today, that haunting continues as the fear of crime features in the policy manifestos of political parties right, left and centre, and through a bombardment of news, “infotainment” and enter­ tainment stories and images. Against Michel Foucault’s account of the shift from a spectacular regime of sovereignty - in which law functions visibly through its effects upon the condemned’s body, to the disciplinary regime, in which law functions invisibly through its effects upon the prisoner’s sub­ jectivity - can be counterposed an account of the massive production of a highly public image of the law through narratives of criminality. The law’s

2

The criminal spectre in law, literature and aesthetics

spectacle alters from public, physical performance to public, imaginative engagement: a scenario which complicates, rather than disputes, Foucault’s thesis. Panoptical regimes of policing, identification and evidence trans­ formed the entirety of social life into an imagined (if not actual) theatre with its associated stagings, disguises and props. This less material, yet more pervasive, structuring of the social estab­ lishes the spectral as a key social mode: Marx’s “ Schlemihls in reverse” become both the new rulers and the new threats to order. The criminal is, thus, not some shadowy counterpart of the law-abiding citizen but as spectre the very form of law and the shape it seeks to control, a spectre jointly produced through the discourses of law, literature, psychiatry, aesthetics and criminology. That is this book’s fundamental claim, and this introduction develops the larger connection between the spectral, the criminal and the law through a reading of spectral thematics in the work of Jeremy Bentham, Karl Marx, Bram Stoker, Arthur Conan Doyle, Cesare Lombroso and Walter Benjamin. The development of concepts of the individual, expressed in legal concepts of volition and equity, climaxed in the nineteenth century. The very success of the concept of individualized subjectivity brought about its own crisis: just as laissez-faire capitalism required increasing state inter^ vention to manage its destabilizing contradictions, bourgeois individuality came to require an elaborate discursive and legal network of regulation to enable its untroubled functioning, one which wasn’t isolated from other emergent forms of regulation as it emerged and functioned alongside the massive changes to concepts of property that were transforming both law and aesthetics. The criminal - legally formed as a volitional individual became an increasing focus of attention, in both legislation and literature, and practices aimed at the regulation of this subject spread into other discourses and practices, from urban planning to photography. The project of regulation or discipline increasingly came into conflict with the very premises of individuality from which it had proceeded. Just as Foucault has shown how the body ceased to be the point of the exercise of legal power, so too did the volitional subject disappear as the point of appli­ cation for new formations of legal power and knowledge. These processes can be read across a variety of texts - literature, photog­ raphy, cinema, law - and through the discourses of phrenology, penology, statistics, anthropometry, criminology, fingerprinting and psychology in relation to the popularity of crime stories, the law of criminal responsi­ bility and insanity, perceptions of the criminal woman, forensic evidentiary techniques, criminality and genius. The formation of the criminal subject is deeply involved in the forma­ tion of secular subjectivity in the nineteenth century which involves the recasting of religious doctrines of sin and guilt in the form appropriate to a contractual, secularly based state where religion has been displaced by law, but wherein law is strongly marked by religion. Criminal law

Introduction: “This subject of ghosts33 3 derives from ecclesiastical law through the doctrine of mens rea. Equity - that great division of nineteenth-century law - is also of ecclesiastic origin. The eclipse of equity goes hand in hand with the eclipse of mens rea, but the resulting, apparently purely secular, positivist law, is itself a split formation, irrevocably structured by the leap it has made from reli­ gious spirit to legal letter. Criminal law contains the survival of the sacred and is, increasingly, the new moral law of the secular state. As the discourse of genius shows, this law is haunted by the spiritual and takes refuge in a form of the sacred made “ scientific” in the notion of the “natural” criminal: “nature” as the new, secularized form of the sacred (and here the whole history of romantic pantheism is relevant), as the category that can contain all that the secular state cannot dream of in its philosophy. The criminal is, thus, the last religious subject, a ghostly persistence of faith: the law its scripture, criminology its theology. If the sleep of reason engenders monsters, then spectres are its persis­ tence of vision, the waking hallucination caused by reason’s memory of religion. Nineteenth-century reason has yet to drive logic’s stake through the heart of its tutelary undead, weighing “like a nightmare on the minds of the living.”4

Bentham [T]his subject of ghosts has been among the torments of my life. Jeremy Bentham, Memoirs5

Long before the French Revolution would attempt to behead sover­ eignty, Jeremy Bentham attempted to lay to rest the ghost of England’s post-revolutionary constitutional fiction, as embodied in Blackstone’s Commentaries.6 A Fragment on Government (1776) throws a light on to the obscurity of English law, attacking the rule of fiction: A fiction of law may be defined - a wilful falsehood, having for its object the stealing legislative power, by and for hands which could not, or durst not, openly claim it, - and, but for the delusion thus produced, could not exercise it.7 And, further, declaring that: the season of Fiction is now over: insomuch, that what formerly might have been tolerated and countenanced under that name, would, if now attempted to be set on foot, be censured and stigmatized under the harsher appellation of encroachment or imposture. To attempt to introduce any new one, would be now a crime: for which reason there is much danger, without any use, in vaunting and propagating such as have been introduced already.8

4

The criminal spectre in law, literature and aesthetics

Legal fictions are, for Bentham, so many pernicious poltergeists in the house of law, often hiding behind the language of theology. Blackstone, he claims, finds in theology “ a not unfrequent source of ornament to divert us, of authority to overawe us, from sounding into the shallow­ ness of his doctrines.” 9 After citing Blackstone’s propositions on the resemblance between the ideal qualities of government and those of the “ Supreme Being,” Bentham comments: Every thing in its place. Theology in a sermon, or a catechism. But in this place, the flourish we have seen might, for every purpose of instruction, have much better, it should seem, been spared. What purpose the idea of that tremendous and incomprehensible Being, thus unnecessarily introduced, can answer, I cannot see, unless it were to bewilder and entrance the reader; as it seems to have bewildered and entranced the writer.10 Bentham might have borrowed a locution from Dr Johnson (they were members of the same dinner club) to observe that theology was the first refuge of a scoundrel, for this is the gravamen of his critique. Blackstone wears his legal robes as if they were the clerical garments from which they derived, so as to cover over the state’s founding violence. The problem of the modern state, as Bentham was quite aware, is how to establish a new form of secular sovereignty, an inescapably oxymoronic concept given sov­ ereignty’s theological essence. And the state’s founding violence rebounds upon the subjectivity of its citizens, as Jens Bartelson has suggested: As a rational subject, he [sic; i.e. the citizen] participates in the subjec­ tive and indivisible will of the state, but at the same time he is estranged from it, looking into it and its conflict-filled prehistory from a point outside it, from the mytho-anarchic outside out of which he himself has emerged or escaped. This perspective invites dreams of transcen­ dence or emancipation: the state is the result of crime organized on a huge scale, propelled by massive violence. But so is the citizen-spectator himself, since he is a modality of the same historically determined subjectivity; his estrangement is only partial, and he cannot be eman­ cipated completely from this iron cage of modern sovereignty, without, as it were, simultaneously losing knowledge of himself.11 The discourse of crime - so prominent in this crucial period of state formation - is the state’s reflection of its own foundational criminal violence, transferred on to its subjects, most of whom are its victims. Criminal subjectivity is thus the revenance of the state’s own birth, and is an appropriately general form of civic subjectivity: less “ iron cage,” then, than Panopticon. Bentham attempts to move from the realization of the state’s criminal foundations to a rational theory of sovereignty and

Introduction: “This subject of ghosts”

5

subjectivity so that the citizen won’t require dreams of transcendence. Legal reform will be a matter of jurisprudence within the limits of reason alone. Based upon the empirical “ sovereignty” of pain and pleasure, or the utilitarian calculus of felicity, the rationalization of law and govern­ ment will be founded upon a secure material basis, rather than upon the shifting sands of superstition. Jeremy Bentham, Bencher of Lincoln’s Inn, Ghostbuster. Ghosts were, as we shall see in Chapter 2, one of the torments of his life, and a motive force in his renovation of law and logic. His perception of the power of fictions was astute, and influential, yet Bentham could no more free himself of the fear of ghosts than he could free his language of metaphor, even the metaphoricity of phantoms evident in the personifications which struc­ ture the opening of An Introduction to the Principles of Morals and Legislation (1789), where he wrote: “Nature has placed mankind under the governance of two sovereign masters, pain and pleasure. It is for them alone to point out what we ought to do, as well as to determine what we shall do.” 12 The generalized pantheism of “Nature” encodes an unmen­ tionable atheism, but it joins with “ sovereign” to inflect the empiricism of pain and pleasure with ideality in a manner which exemplifies “the logic of the ghost” as Derrida terms it: If we have been insisting so much since the beginning on the logic of the ghost, it is because it points towards a thinking of the event that necessarily exceeds a binary or dialectical logic, the logic that distin­ guishes or opposes effectivity or actuality (either present, empirical, living - or not) and ideality (regulating or absolute non-presence).13 This logic is the basis of Bentham’s project, despite everything that he might have wished, for this opening statement collapses any distinction between the ideality of nature and a sovereign and the actuality of pain and pleasure. It is the apparent rejection of the ghostly in Bentham that turns his system to such comic inconsistencies: the reappearance, or revenance, of his transforming a real into a fictitious entity (as we’ll see in Chapter 2 in the Palethorp anecdote). Nor did it seem that he really wanted to get away from all fictions. Having dissected the structures of superstition, Bentham was well placed to use these lessons for his own utilitarian purposes, as the Panopticon design showed. No longer the dungeon of Blackstone’s gothic castle of law, the new prison was to be haunted by a new breed of ghosts, happy to be abroad in the light of day. Bentham’s rational calculus was designed to exorcize the fictions of theology, and to individualize punishment. It was this last aim that intro­ duced the spectre most characteristic of modernity, the criminal. As Foucault puts it, commenting upon the general tendency of rationalist penology, of which Bentham is an exemplary instance:

6

The criminal spectre in law, literature and aesthetics At first a pale phantom, used to adjust the penalty determined by the judge for the crime, this character [the criminal] becomes gradually more substantial, more solid and more real, until finally it is the crime which seems nothing but a shadow hovering about the criminal, a shadow which must be drawn aside in order to reveal the only thing which is now of importance, the criminal.14

Of course, Foucault’s figure of the pale phantom - the criminal - who “ becomes gradually more substantial, more solid and more real” than the crime, is another of Marx’s “ Schlemihls in reverse.” 15 Marx’s insight construed modernity as the age of the substantial shadow, the society of spectacles. However, the poetic reversals of Foucault’s image both go too far and not far enough in suggesting that there is something substantial here. The notion of a criminal more material than a crime is just another hallucination (second order), as Marx’s invocation of Peter Schlemihl should have suggested (keeping in mind Foucault’s implication that this is forensic psychiatry’s founding illusion). For all the positivist fantasies surrounding the criminal, we are still dealing with a phantom because the question of the criminal is now no longer one of a body but of a soul. Under a rational penal calculus, punishment’s point of application has shifted from body to subject. Bentham inaugurated this fantasy through his presumption that the calculus of utility led on to a rational, empir­ ical basis for law. Equally, that calculus can be seen to have invited the phantom of subjectivity across the threshold of the law’s new dwelling.

The spectres of Marx Bentham’s utilitarian rationality expressed and served the interests of a state formation that would be more appropriate to the economic forma­ tion of capitalism, a purportedly commonsense business system free of medieval superstitions. And so it is remarkable that Marx’s analysis of capital and the vicissitudes of its state formations presented itself in the imagery of ghosts and spectres, most famously in the opening line of the Manifesto o f the Communist Party (1848): “A spectre is haunting Europe - the spectre of Communism.” 16 As Derrida has shown at length, Marx’s use of this imagery is no rhetor­ ical flourish: it expresses a fundamental understanding of both the role of representations in modernity and the recurrence and persistence of the structures of religion in an apparently secular economic order. Consider the description of the effects of the bourgeoisie’s constant revolution: All fixed, fast-frozen relations, with their train of ancient and vener­ able prejudices and opinions, are swept away, all new-formed ones become antiquated before they can ossify. All that is solid melts into air, all that is holy is profaned, and man is at last compelled to see

Introduction: “This subject of ghosts”

7

with sober eyes, his real conditions of life, and his relations with his kind [und die Menschen sind endlich gezwungen, ihre Lebensstellung, ihre gegenseitigen Beziehungen mit nuchternen Augen anzusehen].17 What is most striking about the last, often-quoted sentence, is the para­ doxical implication of its parallelisms: the melting of all that is solid is equated with the profaning of all that is holy, implies that the era of the solid or material is also that of the holy or sacred. Thus capitalism, as concerned as it might be with the relentless extraction of wealth from all matter, is not more material than what had gone before it but, rather, more immaterial. This is the spectre which humanity can now see with sober eyes. To quote Jean-Fran"

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