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Law and Society

It is at this point that I wish to conclude, though in another sense I have only just begun. There remains the question of the larger significance of the changes that I have sought to articulate. The violence of which I have spoken was neither a mere tool, whose only significance lies in its effectiveness relative to the purposes it was meant to serve; nor was it some sort of preinstitutional chaos out of which a regularized social life would be shaped, and which, as such, escapes interpretation, because without shape itself. To speak of the forms of violence is to speak of violence as part of society, and as expressive of the society of which it is a part. Indeed, to speak of the forms of violence may be to provide a unique perspective on society, here on both a society in eclipse and a society emergent. In what follows, I will restrict myself to some brief and very general comments, which, it is hoped, point in the direction of further enquiry.

1. One is tempted to claim that popular violence, as regards the mutilation and display of corpses, merely reflected the practices of the crown under the Ancien Régime. For the latter also made a spectacle of the dismemberment of those it had condemned to die—and in manners that could be quite extravagant. (In this regard popular violence was relatively "humane," the victim not being made to die a "thousand deaths" under torture.) Where popular violence most clearly differed from the violence of the crown, was in its relation to the law. Yet here too, one might argue, the crown's violence conformed to the principles of the Ancien Régime. According to the latter, since the law proceeded from above, only those closest to its source, that is, only those in the upper reaches of the hierarchy, could be the law's representatives; the general populace, being mired in a profane reality, was by definition incapable of participating in the formulation, pronouncement, or


execution of the law. As such, popular violence could not but be a rejection of the law. Only with the September Massacres, with what I called the transformation of "popular violence" into "popular justice," did the general populace begin to assimilate something of the modern conception of the law and its "egalitarianism."[39] Only in a Republic, Montesquieu had said, can the people be imbued with the "spirit of the laws." In this sense, it is perhaps not entirely coincidental that the massacres occurred only weeks after the fall of the monarchy.[40]

2. One does not want, however, to assimilate completely the violence of the revolutionary crowds to the principles and practices of monarchic justice (which, one should add, underwent major changes during absolutist rule). Popular violence did not simply reject the law, it inverted the law, turning the hierarchical order upside down in a carnival-like atmosphere. And as a carnivalesque inversion, one is tempted to see in such violence the signs of a separate popular culture. (The existence of the latter being suggested, not least of all, by the mixture of incomprehension and disgust with which such violence was greeted by its "bourgeois" critics—critics who, it must be remembered, often condoned the equally sanguinary movements of the "national razor.")[41] Here a brief reference can be made to the book on popular culture by the Russian literary critic Mikhail Bakhtin, entitled Rabelais and His World . In this work the carnival is perceived as a truly popular festival, for unlike, say, the "ceremonies of the Law," it is not offered by, or with reference to, any external, transcendent source of power or truth. And in a hierarchical society, where all order is perceived to proceed from above, the carnival, by virtue of its "immanence," can only proceed in accordance with a certain, albeit welcome, disorder. For the duration of the festivities, the sanctity of the existing forms of the coercive sociopolitical organization are mocked, its rules and injunctions suspended and, in an atmosphere of terrible gaiety, carnival "rights and freedoms" reign supreme.[42] Furthermore, in this atmosphere of carnival violence, as Mikhail Bakhtin writes, "the kitchen and the battle meet and cross each other in the image of the rent body."[43] Images of culinary anatomization and dismemberment are common, and the dismemberment of individual bodies is clearly related to the dismemberment of the social body, the latter being literally turned inside out, with what Bakhtin calls the "material bodily lower stratum" acquiring ascendancy over the more heady realms of the upper strata. Finally, the individual body of carnivalesque imagery is portrayed as "grotesque," composed of exaggerated protruberances reaching out to the world, and equally exaggerated orifices through which all bodily transactions with the world pass. Mikhail Bakhtin contrasts this grotesque body to the classical image of the body which was revived in the high culture of the early modern era. With the latter, the body was presented as formed of smooth, impenetrable surfaces that "contained" it, closing it off as a separate completed phenomenon:


All signs of its unfinished character, of its growth and proliferation, were eliminated; its protruberances and offshoots were removed, its convexities . . . smoothed out, its apertures closed. The ever unfinished nature of the body was hidden . . . . The accent was placed on the completed, self-sufficient individduality of the given body . . . . The inner processes of absorbing and ejecting were not revealed.[44]

One is tempted to transpose here the image of the individual body to that of the social body held by the revolutionaries who were, in this as in all else, very much classicists.

3. This brings me to a third point, one that concerns what might be called the delineation of the social body or, more precisely, of society.[45] I am not speaking here of a geographical or territorial delineation, though a few words about the latter may serve to illuminate what I am speaking of. In the Ancien Régime, the geographic extent of the kingdom stretched as far as the monarch's authority; the latter, however, tended to become weaker the further removed it was from the monarch's original domain, till it faded into a sort of no-man's-land at its farthest reaches. In a similar manner, it was held that the force of the law weakened the further removed its point of application from its point of origin.[46] Which is to say that as the law moved from its source in divine principle, through its terrestial representatives in the first two Estates, and down to the lower reaches of the social hierarchy, it was supposed that its hold became ever more tenuous, men's actions being impelled by appetites increasingly removed from the ideals embodied in the legal order. What this suggests is that, even as the legal order defined the societal order, the order thus defined was necessarily much narrower than "society" or collective existence, particularly in its more profane aspects. With the Revolution all this changed. The law no longer moved vertically, down a hierarchy, but "horizontally," where it was to apply to all, with equal force and in an equal manner. One consequence of this "horizontal" positioning, which should be noted, was that the law, and the societal order that it was to establish, could no longer be inverted, only overthrown. The extension of the law in this sense, with its egalitarianism, its universalism and seriousness, was opposed to carnival forms and "their whole psychology of two worlds."[47] In this sense, the law was the perfect instrument of revolution.

Another consequence, a more significant consequence for our present purposes, was that the legal order was held to define not just a societal order but "society" itself. In the utopian longings of the revolutionaries, law and society were to be coequivalent: the law was to constitute society, the pure product of a legislative project; while the society thus constituted was to be so designed as to uphold the "sovereignty of the law" and its rigors. To be sure, this revolutionary apotheosis of the law could not last. For the law retained a trace of its transcendence: by its very rationality and visibility, by the very fact that it demanded obedience, it could never be identical to society.[48] And


as it became all too obvious that the hold of the law was (necessarily) weak, the imperative was to discover the "real" society, the society beneath the laws, constituted of a deeper order barely visible to the social actors, an order located, at least in part, outside the self-conscious workings of their rational faculties.[49] But even as the legal order was, relative to the definition of social reality, to be replaced by either a "natural order" (variously defined) or a nonrational, normative order, the law still served, without remaining identical to society, to trace the limits of behavior in society. An exoskeleton of the permissible, failure to conform to the law placed one outside society, depriving one of the rights the latter guarantees and the protection it affords. And it is only when the boundaries of society are thus demarcated, that the logic of exclusion discussed above can begin to operate.

4. The last point: by drawing a line separating social from antisocial behavior, the law establishes what, ideally, lies outside society as well as within. And not the least of the things is to be pushed beyond the societal frontiers is all violence that originates outside the law and its application. We are faced here with what Max Weber considered one of the defining characteristics of the modern state: its monopolization of the legal use of violence (along with its corollary, the pacification of society). But what of this legal, or better, legalized, violence that establishes the boundaries and banishes the criminal and his crime outside the "gates of the city"? Is it to be part of the order it enforces, with full rights of visibility? Or do the means of enforcement belie the order to be enforced, and not just because of the resemblance of legalized violence to its illegal counterpart? Within the Ancien Régime things were clear. The violence of power was presumed necessary, the very reflection of its strength. As power moved ever deeper into the lower regions of the hierarchy, the recourse to violence was deemed increasingly necessary to enforce what could only be a minimal, grudging obedience. Moreover, power made itself visible through its violence; it had to appear spectacular and arbitrary (capable of terrible deeds, but also of acts of grace) if it was to mark its distance from common mortals. It was only when the nation was sovereign and power was said to emerge from society at large, that its violence, at least when directed internally, would appear as weakness, the sign of a division internal to its source. It was only when the law was the supposed expression of a general will that the (frequent) recourse to legalized violence would suggest that the law was not general and the people were far from infused with its spirit. At worst, the violence of the law might indicate the existence of an undeclared civil war, itself the possible sign of governmental tyranny.[50]

Now it would be difficult to assert that the modern state had been more, or for that matter, less violent than that of the Ancien Régime. But where modern states have been violent, they have almost invariably sought to cover the extension of their violence with the simultaneous removal of that violence from the sight of, and more generally, intercourse with, society. Indeed, one


might read the history of state violence since the French Revolution as continuously attempting to improve on this logic.[51] In this regard, the twentieth century, with its concentration camps and gulags, has been particularly fertile, with perhaps the most recent refinements coming from Argentina, that piece of Europe in Latin America. With the desaparecidos of the 1970s, not only was there an attempt to render the violence invisible (it was officially denied; those slated for execution being picked up by police and soldiers in civilian uniform). Not only was there an attempt to render the identities of the victims invisible (their identities were removed from official records, their bodies buried in unmarked graves or dropped over the ocean), as well as those of their persecutors (they gave themselves false names, sometimes false identities; the law under whose authority they operated was, when not ignored, made into an official state secret). But there were, as well, attempts to make even the sites of violence "disappear." For not only were the sites where victims were held, interrogated, and executed closed to public view, there were, apparently, attempts to render these sites mobile, lest, by virtue of the evidence of geography, they be susceptible to public exposure. This must all count as a significant improvement in the logic of exclusion; beyond the acts of incarceration, and of death by incarceration, it is the traces of such acts that are systematically eliminated.[52]

We are here, to be sure, far removed from the events of September 1792. But something began in that month, another history, different connections, with unexpected and unrecognized lines of descent. It would, of course, be absurd, during the bicentennial of the French Revolution, to establish a separate anniversary for the September Massacres. What perhaps began with the latter is too deeply buried in our modernity, too far removed from questions of political partisanship, and too dark in its character and implications to admit of the prestige of an inaugural event. In something as epochal, total, and complex as the French Revolution, it is its deepest, most obscure aspects to which we remain the most tightly bound.

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