“A Work of Mourning: Criticism after Nasser Hussain”

I. History

When I recall Nasser’s approach to history a recent photograph of Nasser comes to mind. In the picture, Nasser is sitting on a wooden fence. His head is tilted up and his face bears a characteristically inscrutable expression. When I remember my friend in this posture, I see him as Walter Benjamin’s “Angelus Novus.” ⁵ For a moment the forces that push and pull him in opposite directions are balanced. His head is turned toward the past but when the time comes, he will not be able to stop himself from being propelled into the future to which his back is turned. According to Benjamin, the power that drives the Angel backward “we call progress.” ⁶ As the essay in which the Angelus Novus appears, “Theses on the Philosophy of History,” is commonly interpreted, Benjamin takes issue here with a view of history he attributes to “vulgar Marxists.” ⁷ According to Benjamin, vulgar Marxists believe class struggle leads to a happy future in which capitalism is destroyed and the proletariat is able to lead a life devoid of economic exploitation. Benjamin sees things differently. In Benjamin’s view, suffering and strife lead not to an amelioration of the proletariat’s condition but only to more misery and conflict. The past offers no indication of improvement, technical or otherwise, nor any sign of spiritual redemption. Supernatural forces, such as they are, are powerless to make things better or even to repair the damage done. All there is to do then is to “survey the rubble of the past,” and perhaps “expose the lie of progress as coterminous with human liberation.” ⁸

Like Benjamin’s Angelus Novus, I think Nasser does not see the force that pushes him into the future as one that improves or advances human society, driving it to develop incrementally but inevitably to a “higher,” more “enlightened” stage. Looking before him into the past, history does not appear as a sequence of actions or occurrences linked by cause and effect, a “chain of events” that results in a present moment determined by what came before and promising to contribute to a “better” future. Instead, like the Angelus Novus, Nasser perceives “one single catastrophe which keeps piling wreckage upon wreckage and hurls it in front of his feet.” ⁹

What piles up before Nasser are not iterations of the catastrophe of capitalism or the lie of progress, however. So what catastrophe does Nasser collect? It is tempting, given the subtitle of Nasser’s book – The Jurisprudence of Emergency: Colonialism and the Rule of Law – and the backdrop of Nasser’s many published essays and other writing projects, to call it “colonialism.” But I believe what Nasser finds when he looks into the past is not colonialism. As he sifts through the archives, it seems to me what captures his attention again and again is law. As Nasser shows in The Jurisprudence of Emergency, colonialism has an important relationship to law, but I think it is ultimately “law in general, and the problematic of a rule of law and emergency in particular” ¹⁰ that fascinates and troubles him.

That Nasser sees law as a catastrophe (in the sense of Greek katastrophē “overturning, sudden turn,” from kata- “down” + strophē “turning,” from strephein “to turn”) is made plain in The Jurisprudence of Emergency when he describes the British empire’s turn to law in the nineteenth century. According to Nasser, in the nineteenth century, the British empire covered not only India but also later Africa, and the Middle East, and consisted of people “who were not slaves but … were not quite free subjects either.” ¹¹ To rule such people, Nasser argues, the empire required a new conception of sovereignty. As the people of the empire were not slaves, they could not be ruled by a dictator or despot. However, they were not deemed capable of ruling themselves so they could not be ruled democratically either. Faced with this dilemma, the empire turned to law. In the context Nasser lays out, it is clear that this turn is indeed a decision to follow a different course, and that this decision is neither a determined nor a progressive step. Instead, it is the introduction of a new conception of sovereignty, one that upsets and displaces previously settled understandings of governing power and authority with a manner of rule that is neither completely egalitarian nor totally repressive.

In his work, Nasser bears witness to the relation in law between the rule of law and emergency, a relation he describes as one that is “as intimate as it is anxious.” ¹² Specifically, Nasser observes the relation in law between the principle that all people and institutions are subject to and accountable to law that is fairly applied and enforced, and the declaration of a situation of national danger or disaster in which the government suspends normal constitutional procedures in order to effectively and efficiently address the threat. In his writings, Nasser notes over and over again the tensions generated by this relation. In The Jurisprudence of Emergency, he records the efforts of colonial administrators and great metropolitan legal minds to resolve these tensions with arguments about the proper balance between the rule of law and emergency, a balance that addresses the limits of the rule of law and checks the authoritarian tendencies of emergency declarations. For example, in a discussion of English jurisprudence, Nasser observes how Albert Venn Dicey, “the great constitutional authority of the nineteenth century,” struggled to reconcile two principles on which he insisted in the Introduction to the Study of the Law of the Constitution: “the theoretically unlimited power of Parliament and the restraint of a rule of law.” ¹³ According to Nasser, in Law of the Constitution Dicey argued that Parliament had the power to enact whatever it deemed necessary but because under the constitution any act of Parliament was subject to the interpretation of a judge, the law was supreme. As skeptics suggested at the time, Nasser notes, the law’s capacity to limit Parliament was not obvious, however. Indeed, Nasser says, Dicey simply assumed an abuse of power would never really happen in Britain. Consequently, when Parliament passed the Home Rule Bill of 1913 legislating home rule for Ireland – an anathema for Dicey – Dicey was confronted with a problem. Nasser recounts that Dicey first sought some means within the constitution to prevent Parliament from exercising the power he had ascribed to it but when he realized there was no legal recourse, he ended up supporting armed resistance to lawful authority. ¹⁴

Yet, despite Dicey’s failure to provide a “juridical principle” to limit the exercise of state power, in The Jurisprudence of Emergency Nasser warns that it would be an error to consider the state of emergency as categorically outside the rule of law: “we should not move too quickly over the peculiar way in which law contemplates and provides for its own failure,” he counsels. ¹⁵ Following his own advice, a chapter of The Jurisprudence of Emergency is focused on explicating the notion that a state of emergency “threatens something fundamental about law in general,” and therefore “requires a special law.” ¹⁶ On Nasser’s account, that “special law” is martial law. What distinguishes martial law, Nasser claims, is that martial law establishes rather than enforces an unspecific and unspecified kind of order. Its objective is “not the punishment of the guilty, not the end to specific transgressions, but the restoration of a general condition.” ¹⁷ In other words, martial law is not justified by revenge or retribution. Nor is it rationalized as the means to end hostilities or impose peace. The raison d’être of martial law is rather to establish a general rule – a rule that might be as nebulous as a “habit of obedience” – and in so doing, to reveal and demonstrate the power of the state.

Nasser illustrates this point in a discussion of the Jallianwala Bagh massacre in 1919 and General Dyer’s defense of his actions. In a report to his division command, Dyer explained, “It was no longer a question of merely dispersing the crowd, but one of producing a sufficient moral effect from a military point of view not only on those present, but more especially throughout the Punjab. There could be no question of undue severity.” ¹⁸ According to Nasser, Dyer’s aim “was more than dispersing the crowd but something else,” ¹⁹ as Dyer obliquely recognized “something other than authority is … needed to counter a breakdown in authority.” ²⁰ And while this justification for shooting at and killing many hundreds of nonviolent protesters could not be fully embraced by the Hunter Committee that reviewed this case, the committee could not disavow it either. Thus, Nasser concludes, “The committee compulsively returns to an ambivalence,” ²¹ condemning actions that it also concedes were efficacious, and indeed, indispensible. Their ambivalence reflects, Nasser suggests, an unwillingness to acknowledge the complicated relation between the rule of law and emergency which, according to the committee’s own understanding of martial law in the colony, placed “coercive force at the heart of law and made such force a condition for the very possibility of law’s existence.” ²²

While the rule of law is made possible by coercive force, Nasser argues, this force is not instrumentalized by law. In other words, the coercive force at the heart of the rule of law should not be mistaken for the (legitimate) violence used by law for the purpose of making or enforcing law. The coercive force that makes the rule of law possible, that institutes order or establishes the general rule, is therefore better figured as “necessity.” ²³ It is better figured this way because in this guise the coercive force that makes the rule of law possible authorizes the law’s use of violence for more specific ends. ²⁴ However, necessity is not necessarily the only manner in which the coercive force at the heart of law may appear. Racial animus may be another, Nasser suggests. ²⁵ Observing that race not only “structures a grand evolutionary narrative of civilization” but also acts “as a limit condition that the colonial state cannot subsume into its normative ideology,” Nasser argues, “this ambiguity in the function of race corresponds to an ambiguity in the justification of force.” ²⁶ In other words, race, like necessity, may be invoked to provide a reason for law to employ the force at its disposal. When John Stuart Mill famously argues, “Despotism is a legitimate mode of government in dealing with barbarians, provided the end be their improvement, and the means justified by actually effecting that end,” ²⁷ race legitimates what might otherwise be understood as an abuse of power. In addition, race, like necessity, may be called upon to make the rule of law itself possible. Returning to the example of the Amritsar massacre, Nasser reminds us that the violence brought to bear may not just be evaluated in terms of the (excessive) amount of firepower used to disperse a local crowd by foreign soldiers but may also be critically assessed in terms of the effective establishment of a colonial state. In the context of his remarks about race, the colonial character of the state is highlighted. As Dyer indicates, the soldiers seek to produce an “effect” that will influence not only “those present” but “more especially” those “throughout the Punjab.” ²⁸

In more recent work, Nasser analyzes the tensions between the rule of law and emergency in the context of contemporary wars. In the brilliant article, “The Sound of Terror: Phenomenology of a Drone Strike,” published in the Boston Review in 2013, Nasser explores the limits of debates in the United States about the use of drones in the war on terrorism. ²⁹ Following Carl Schmitt, Nasser argues that aerial bombings of people who have no chance to retaliate – as in the case of drone strikes – intensifies “the problem of unequal sides” which allows the dominant side to re-label enemies as criminals and leads to the acceleration of the process through which war becomes a police action. ³⁰ Police action, as Benjamin famously argues, is “a kind of spectral mixture” of two forms of violence. ³¹ The first form of violence is violence employed to uphold the law. ³² The lawfulness of the end legitimates the violence used to achieve it; in brief, the end justifies the means. This is law-preserving violence. The second form of violence is lawmaking violence. ³³ In this form, violence establishes an end as legal. In effect, force realizes what is decreed, by a head of state or by whomever exercises the power to decide, as a new law. Law-making violence is exemplified by the peace ceremony that sanctions a military victory and recognizes it as having established a new binding, and enforceable, rule. ³⁴ When the two forms of violence are mixed in police action, violence exercised by the police is “emancipated” from either having to serve or establish legal ends. In these circumstances, the police use violence to achieve ends they alone decide are legal. According to Benjamin, the “ignominy” of police action lies in the fact that the police may simultaneously declare an end to be lawful and at the same time declare the use of force to achieve this end is legal. ³⁵

When war becomes a police action, the violence deployed is “emancipated” from either having to enforce the rule of law or having to decide – and realize or make real – the existence of a state of emergency. In “The Sound of Terror,” Nasser shows how the use of military force, i.e. drones, by the United States is justified neither by the goal of enforcing international law nor by the existence of a state of emergency threatening the United States or the international order. Instead, the asymmetric character of drone warfare domesticizes the space of the conflict and renders the ostensible enemy a criminal, who is caused to suffer. Why this “criminal” must suffer is unclear, for no law exists that justifies punishment and no end has been embraced, let alone acknowledged, that may eventually be established and that may then be used to explain, if not vindicate, their suffering. As there are no clear legal ends to be achieved with drones, the discussion of their effectiveness shifts to a discussion of their financial, political, and moral costs. But this shift betrays more than the fact that the conflict in which the US is involved in the tribal areas of Pakistan (FATA), as well as in other places around the world such as Yemen and Afghanistan, is not governed by a rule of law that would “guarantee through the legal system the empirical ends that [the state] desires at any price to attain.” ³⁶ It also betrays the fact that those who deploy drones enjoy what Benjamin describes as “the power of a ruler in which legislative and executive supremacy are united,” for like an absolute monarch their action “bears witness to the greatest conceivable degeneration of violence.” ³⁷ In Nasser’s analysis of a drone strike, the tension between the rule of law and the state of emergency does not so much bear witness to the degeneration of violence, however. Instead, it exposes and expresses the violence or coercive force that makes both the rule of law and the establishment of a state of emergency possible.

II. Jurisprudence

In “Critique of Violence,” Benjamin claims that law “acknowledges in the ‘decision’ determined by place and time a metaphysical category that gives it a claim to critical evaluation.” ³⁸ The decision to which Benjamin refers may be a decision made by legislators or other parties empowered to determine what the law will be. Alternatively, it may be a decision made by an officer or official who sets the terms of a peace agreement, thereby enacting a new order. In either case, the decision presents a position with which critics may engage, a choice or determination they may analyze, assess, and either praise or condemn. The “degeneration of violence” occurs when no decision guides or dictates the use of force. In such circumstances, critical evaluation or validation of violence is impossible.

Despite his discussion of the degeneration of violence in drone warfare, as I have suggested above, I think that Nasser does not agree with Benjamin’s claim about law and the decision. While, as we have already seen, Nasser argues coercive force makes the rule of law possible, he does not identify law qua law with a determination or formal judgment. On the contrary, in his work Nasser suggests that law qua law struggles with the “ignominy” that Benjamin reserves for police authority, an ignominy that lies in the fact “that in this authority the separation of lawmaking and law-preserving violence is suspended.” ³⁹ For instance, although he observes how the justification of emergency powers is based on the claim of necessity, Nasser does not immediately dismiss the claim. Instead, he suggests “such a claim may have its merits.” ⁴⁰ In other words, rather than assuming the declaration of a state of emergency justified by necessity rather than a law that either authorizes or will authorize violence is always and only an instance when police action renders critical assessment moot, Nasser argues the claim of necessity not only may be but “needs at all times to be evaluated and questioned.” ⁴¹ If it is not, Nasser states, “all critique, whether historical or contemporary and political, crumbles in the face of this tautology of state power.” ⁴²

In brief, Nasser never idealizes law. Indeed, Nasser is careful not to make a claim about what law is. Thus, Nasser does not discuss law per se but rather focuses on the effects of our conceptions of it, particularly in our conceptions of “a rule of law.” As he states in The Jurisprudence of Emergency, “with regard to the use of emergency power and the substantial violence it unleashes, it is not a case of ‘saying one thing and doing another,’ for those exceptional powers themselves emerge out of a system of a rule of law.” ⁴³ In other words, the apparent contradiction (or hypocrisy) of “making war so we may live in peace,” reflects rather than invalidates the logic or dynamic of legality, and gives us what we have to think with to understand a system of a rule of law. In this regard, Nasser’s account of law and the jurisprudence to which he subscribes is profoundly pragmatic.

To the extent that Nasser does not insist on knowing law to be a static institution, a particular set of rules, or a specific collection of practices, his argument reminds me of Peter Fitzpatrick’s in Modernism and the Grounds of Law. ⁴⁴ In Modernism and the Grounds of Law, Fitzpatrick suggests that law is characterized by (rather than is) a vacillation between determination and responsiveness. Against “the standard assertions of law’s stability, fixity, implacability,” ⁴⁵ Fitzpatrick advances law as “a putative settlement of the space in-between determinate position and what was beyond it,” proposing “that which constituted and impelled law was the antinomy between these two dimensions combined with their necessity for each other.” ⁴⁶ While Nasser does not use the language of determination and responsiveness, his insistence that “the rule of law and emergency, norm and exception, the standard and that which contravenes it, must be viewed as powerfully and intimately connected” ⁴⁷ echoes Fitzpatrick’s claim that what has been figured as opposed and contradictory conceptions of law are better understood as related and essential observations about it. Unlike Fitzpatrick however, Nasser collects instances of historical rather than theoretical attempts to address the paradoxes generated by what I have called the “ignominy” of law for, according to Nasser, the rule of law “is better understood within the larger context of changing conceptions of law and sovereignty and specific power relations.” ⁴⁸ Nasser eschews an approach that assumes a definition of the rule of law is sufficient to understand it. Instead, he insists the rule of law can only be grasped when it is appreciated as a “fungible category,” ⁴⁹ which requires listening to how the concept is articulated in different places and times, and noting how it is practiced in particular relations of power.

Kunal Parker takes a similar approach in his work on the common law in Common Law, History, and Democracy in America, 1790–1900: Legal Thought before Modernism, when he describes how “pre-modern” lawyers and legal theorists articulated the relation between common law, history, and democracy before the triumph of positivism and the cynical view that common law is nothing more or less than what a bunch of unelected, self-serving judges say it is. ⁵⁰ Specifically, Parker, like Nasser I think, believes that to appreciate how people have thought in the past “one has to distance oneself from one of the critical assumptions of modernist historical thought, namely that an iconoclastic dismantling of the foundations of phenomena through the technique of revealing their temporal origins will clear ground, enable critical self-reflection, and open up the world for reimagining and remaking.” ⁵¹ In brief, Parker counsels against a historical approach intent on exposing and demystifying arguments made in the past. In the case of his interests in common law, history, and democracy, this means, among other things, resisting the view that law is really only politics by another name. In Nasser’s case, this means taking seriously, as I have already noted, particular claims of necessity that justify emergency powers and not simply dismissing or demeaning them as excuses to exert power for power’s sake. However, unlike Parker, Nasser does not frame his historical studies in terms of a progressive narrative. Parker’s analysis of early American legal thought is introduced and structured by a break in legal thought that is itself “part of a much wider modernist political, intellectual, and artistic ‘revolt against formalism’ throughout the Western world.” ⁵² While Nasser does not deny change over time, he emphasizes overlooked parallels between historical moments rather than definitive ruptures. For instance, in The Jurisprudence of Emergency Nasser focuses on the tension between the rule of law and emergency in the context of colonialism and draws from British examples to develop his argument. But at the end of the book, Nasser states clearly that the problem of emergency does not disappear with the end of colonialism. On the contrary, he suggests the problem intensifies as postcolonial states “inherit the institutional and constitutional framework of the colonial state, and as the courts confront a precedent of emergency jurisprudence within new conditions of state legitimacy.” ⁵³

Likewise, in “Hyperlegality,” published in New Criminal Law Review in 2007, Nasser emphasizes correspondences between the past and the present rather than breaks with precedent. ⁵⁴ However, he is suspicious of claims of continuity as well. In “Hyperlegality,” Nasser argues that new antiterrorism legislation in the United Kingdom is misunderstood when it is characterized as “emergency” legislation; too much of it is based on measures that were contemplated and codified “prior to the events they are often presumed to be a response to” for this legislation to be understood as reacting to a crisis. ⁵⁵ In other words, British legislation that replies to incidents of political violence occurring around the world does not significantly modify or depart from developing government practice. Yet Nasser refuses to offer “a historical narrative, continuous and causal” ⁵⁶ that would link this practice, contemporary legislation, and recent decisions from the House of Lords with Britain’s colonial past. He proceeds instead “from a historicist juxtaposition of two moments” ⁵⁷ to make an argument about an emergent mechanism of governance – an administrative rationality he calls “hyperlegality.” Hyperlegality is a process of bureaucratic legalism. According to Nasser, it operates mainly through two mechanisms: the increasing use of classifications of persons in the law, and the use of special tribunals and commissions. ⁵⁸

I shall dwell for a moment on the article “Hyperlegality” because the claims made about law in it may seem to differ in important respects from those made in The Jurisprudence of Emergency. Specifically, in “Hyperlegality” Nasser appears to argue that the tension between the rule of law and emergency no longer defines law. This tension gives way to “the concept of fragmentation,” a concept that, Nasser suggests, “more accurately captures the tenor of legal responses to terrorism than does the trope of exception.” ⁵⁹ In “Hyperlegality,” Nasser argues the current war on terror does not follow “the traditional logic of emergency.” ⁶⁰ In particular, state responses to terrorist attacks have been structural and permanent rather than reactive and temporary. In addition, these measures have been taken regardless of the location or even the target of the attacks; terrorism occurring anywhere in the world may give rise to domestic legislation. However, as noted above, Nasser emphasizes the fact that this legislation has not always been written after an event. Thus, he argues, “the legal developments we are considering are better understood not as emergency or special laws at all.” ⁶¹ Instead, he proposes, they signal the emergence of a mechanism of governance that “comprehends and confronts a threat through an administrative rationality.” ⁶² Central to this rationality is the use of classification and the combination of secrecy and expertise in determining who fills that classification. ⁶³

In some ways then, in “Hyperlegality” Nasser appears to elaborate on and significantly extend a Weberian argument about the state, public administration, and law. But Nasser’s focus is, again, not determined by theoretical commitments as much as by what he finds in front of him in British archives – in this case, the Criminal Tribes Act of 1871 ⁶⁴ and the antiterrorist measure of the 1920s and 1930s in Bengal, ⁶⁵ as well as the Special Immigration Appeal Commission Act of 1997, ⁶⁶ the Terrorism Act of 2000, ⁶⁷ and the judgment of the House of Lords in A (FC) v. Secretary of State for the Home Department (or the Belmarsh decision) in 2004. ⁶⁸ In this material, Nasser uncovers a practice of categorization and division. Noting that “all law is animated by certain distinct categories such as criminal, citizen, and immigrant,” he demonstrates how new subcategories are emerging that combine “who people supposedly are with what they are likely to do.” ⁶⁹ Significantly, the process by which people are classified “invariably involves racial and cultural presumptions,” ⁷⁰ reflecting, Nasser insists, “‘race thinking’ beyond race.” ⁷¹ Informed by (and departing from) Hannah Arendt’s argument in The Origins of Totalitarianism that the two defining elements of imperial rule were race and bureaucracy, and drawing from Paul Gilroy’s discussion in Postcolonial Melancholia of the functioning of race in the colonies, Nasser emphasizes “the interplay between typology and ontology, between making distinctions and making claims of being based on those distinctions.” ⁷² Specifically, he draws attention to “how law in fact puts race in place, how it utilizes a system of categories and rules, a general conception of types of people and of risk, to institute and maintain a conceptual and physical segregation.” ⁷³

In “Hyperlegality,” the ignominy of uncertainty no longer seems to be what characterizes law as such. Instead, Nasser appears to understand law in terms of the work it does. This work is making divisions. Law does not make divisions in a vacuum but the features of the context in which it does its work are not given or fixed. In “Hyperlegality,” Nasser observes in particular how the divisions law makes are informed by “racial and cultural presumptions.” ⁷⁴ According to Nasser, these presumptions are then reflected and essentialized by the divisions law makes, thereby rendering them existent and, thus, real and reasonable grounds for making the divisions in the first place.

Read this way, I think that Nasser still identifies law with ignominy, however. The dishonor or disgrace with which law is identified is associated with the apparent but infinitely receding point at which the poles by which it is described – law-making violence and law-preserving violence, rule of law and emergency, making divisions and discovering them – are set apart from one another. In other words, the ignominy of law is the ignominy of a Mobius strip; what appears to be a two-sided figure turns out to be one continuous surface looped in such a way that a palpable opposition is generated but can be neither logically nor affectively initiated or resolved.

Another formulation of this palpable opposition may be “show of force.” As discussed above, the excessive violence employed to disperse a crowd may be (and has been in the colonies) justified by “necessity” or by racial animus; in either case, the excess of the violence such justifications occasion “cannot be fit into the normative structure of ‘regular’ law.” ⁷⁵ In other words, the violence surpasses what would be required to either enforce existing law or make new law. In The Jurisprudence of Emergency, Nasser associates this excess with a “coercive violence at the heart of law” and relates it to an intensity that can found law anew. ⁷⁶ I am suggesting that in terms of the discussion of law in “Hyperlegality,” this intensity is made manifest in division or fragmentation. More specifically, a “founding violence” is expressed in the act of breaking into bits that at the same time groups and bands what is shattered into specific collections or “parts.” The act of separating, classifying, or categorizing realizes differences that it presumes to be real. What could be more dishonorable, more disgraceful, more shameful?

III. Critique

Of course, Nasser does not evaluate or judge what he observes for failing to meet some standard or uphold some principle. That is to say, Nasser does not engage in the customary practice of critique. Such practice includes the scrutiny of reasons given for a particular position or course of action. When these reasons are tested and fail to hold, the position they once supported is invalidated. The critic is then able to establish a point of view or chart a path forward that is based on firmer ground.

In this regard, conventional critique is akin to mourning. In “Mourning and Melancholia,” Freud explains the mourning process. ⁷⁷ It begins with a demonstration that something isn’t right. Specifically, someone or something in which strong emotion and feelings have been deeply invested is lost; a “loved object” no longer exists. Respect for reality then demands that all affection be withdrawn from the loved object. Understandably, this demand is immediately and strongly resisted. Nevertheless, “bit by bit, at great expense of time and cathectic energy,” reality prevails. After a process by which “each single one of the memories and expectations in which the libido is bound to the object is brought up and hypercathected,” the libido detaches from the loved object. Then the work of mourning is completed, and “the ego becomes free and uninhibited again.” ⁷⁸

Nasser does not work through the past in this way. While he reads closely and carefully analyzes the materials he collects, he does not withdraw his emotional and intellectual investment from the catastrophe “which keeps piling wreckage upon wreckage.” ⁷⁹ Instead, he works patiently with what he finds. In so doing, he often reveals the limits of “the apparently self-evident assumptions of a given form of life,” as Raymond Geuss suggests occurs when one engages in genealogical critique. ⁸⁰ In “The Sound of Terror,” for example, after studying the history of aerial warfare, watching drone footage, and reading contemporary policy discussions, Nasser shows how our debates over the use of drones are severely hampered by our vision of their effects. He does not condemn the images with which we work, however; nor does he criticize the decisions based on these images to use drones to avoid “prolonged and messy ground operation[s].” ⁸¹ Instead, he shows how attending to the manner in which what we see is framed, the way in which we are positioned vis-à-vis what is displayed, and the fashion in which we learn to interpret what we see, allows us to better appreciate not only the context in which drones are being used and how they are being experienced on the ground but also how our understandings of political organization, the use of power, and questions of responsibility reflect a “god’s-eye view” that restricts our capacity to consider and act in the world horizontally rather than vertically, as it were.

To put this point another way, Nasser does not detach from the material his research deposits at his feet in order to intellectually free himself and then assume an “objective” position vis-à-vis the focus of his attention. The exception to this rule is perhaps the work he does on a brief of Amici Curiae that was submitted to the Supreme Court of the United States in support of petitioners in the case Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659 (2013). ⁸² In this brief, Nasser and his co-authors, all professors of legal history, argue that the Second Circuit did not properly understand and interpret the Alien Tort Statute (“ATS”) when it rejected the proposition that corporations may be held liable under the ATS for torts in violation of international law. The ATS is a section of the United States Code that allows foreign citizens to seek remedies in US courts for human-rights violations committed outside the United States. Nasser and his co-authors maintain the text, history, and purpose of the ATS “places no limits on the type of defendant amenable to suit.” ⁸³ In other words, they argue that corporations are not exempt from this section of the US Code and may be taken to court by foreign citizens in the United States.

Such an argument may suggest that Nasser presumes to know what the ATS means, as if he occupied a position with regard to the text, history, and purpose of the Code that permitted him an all-encompassing view on the matter and the ability to make objective statements about its significance. However, as Adam Sitze eloquently observes in his essay on Nasser’s first published work, an essay on Salman Rushdie’s 1983 novel Shame, Nasser is always well aware of the limits of his view. As Sitze notes, Nasser understands the critic “lacks immunity to that which he critiques, and who therefore dwells in immediate and direct community with that from which immunity otherwise would seem to protect the critic, namely, shame understood in juridical terms as complicity.” ⁸⁴ In brief, Nasser never experiences the position of the critic as one that protects or exempts him from suffering the limitations and liabilities that he critically identifies in others’ positions. On the contrary, as Nasser understands himself to be as incapable as anyone else of overcoming his historical and embodied existence, when he critically examines what others have done Nasser appreciates how he himself commits and benefits from the kind of harm he attributes to the actions of other people at other moments. Although Sitze’s observation relates to the complicated position of the critic of colonialism who nevertheless finds it “both possible and desirable to use precedents from colonial law” to analyze and even denounce legal phenomena in the present, Sitze’s remark applies just as well to Nasser’s affective and intellectual entanglement with the promise of the rule of law in the US.

This entanglement is exemplified in his argument in the brief of Amici Curiae that was submitted to the Supreme Court in support of petitioners in Kiobel. ⁸⁵ Again, Nasser and his colleagues argue in that brief the Second Circuit did not properly understand and interpret the ATS when it rejected the proposition that corporations may be held liable under the ATS for torts in violation of international law. Thus, the authors of the brief seek to establish corporations may be held accountable under the ATS. They proceed by showing how, as the modern corporation emerged, early English and American courts not only adjudicated violations of international law – at the time, a body of customary rules referred to as “the law of nations” – but also applied domestic agency principles to do so. In other words, Nasser and his colleagues show, from the early days of the Republic, “courts applied domestic law to determine questions of corporate liability and allocate damages” ⁸⁶ when considering violations of the law of nations.

In support of this claim, the legal historians refer to the case of Booth v. L’Esperanza (1798). ⁸⁷ In this case, the judge ultimately applied the laws of the state of South Carolina to determine possession of a prize of war. The Esperanza was a Spanish ship that was captured by a British privateer. The privateer ordered one of his slaves to sail the ship to New Providence. However, the ship was blown off course by a gale. In need of assistance, the crew of the Esperanza approached an American schooner and eventually, the captain of the schooner arranged for his first mate to sail the Esperanza to port. Once arrived, the captain and his first mate both claimed they were entitled to take the ship and its crew as payment for salvage. While the judge in South Carolina agreed some form of payment was due, he disagreed with the argument that the ship was abandoned when the slave was charged with sailing it to New Providence. The doctrine that the slave was incapable of possession of the vessel he commanded simply because he was a slave goes too far, the judge claims:

1st. Because by the laws of this state, a slave authorized by his master to do an act, which a slave could not otherwise do, is justified, provided the master avows the order. 2dly. Because, as most of our coasters are navigated by slaves, and frequently commanded by a slave, the owners would be continually exposed to loss of their property, in case a vessel should be blown to sea, as is often the case. There can be no doubt, however, that slaves in such a circumstance would be allowed to represent their owners, and to prove their property. ⁸⁸

Nasser and his colleagues refer to this case in order to argue that under the ATS the petitioners in Kiobel are entitled to hold the Royal Dutch Petroleum Company liable for wrongs that were committed by their agents in Nigeria in violation of international law. I refer to it because the reference to Booth v. L’Esperanza in the brief illustrates Nasser’s lack of immunity as a critic. To correct the wrongs of the present, Nasser and his co-authors exploit a precedent that enforces the privileges of slaveholders. ⁸⁹ This precedent makes possible the argument Nasser and his co-authors make in the Amici Curiae brief. The fact that it is used in an argument that would support the ability of victims of the malfeasance of international corporations to make legal claims does not change the reality that the authors of the brief would not be able to make their argument if not for slavery. An opinion critical of the status quo or corporate power does not inoculate the critic against responsibility for the injustice that enables and empowers them to offer that opinion. Nasser understands that he and his colleagues are in some way accountable for the slaveholders’ offenses that make their argument possible. In brief, Nasser knows “judges are not exempt from judgment.” ⁹⁰

Thus, even when he may appear to take a “god’s-eye view,” in his legal work especially, I believe Nasser does not break with or distance himself from what he studies. He remains attached, even as he fashions something with the material that opens up possibilities for engaging in ways we have not considered before. In this way, Nasser “goes after” the ignominy he sees everywhere. He holds himself a part of the story he tells. As he follows a line of thought, he does not shy away from scandalous arguments that may lead to (morally) compromised conclusions; he works with what is given and accepts the consequences.

For this reason, I do not choose to use moral or legal language to describe Nasser’s relation to the catastrophe he observes. Instead, the words that come to mind are those of W.H. Auden: “Bless what there is for being,/Which has to be obeyed, for/What else am I made for,/Agreeing or disagreeing?” ⁹¹ Martha Umphrey cites this poem, “Precious Five,” in her essay on Nasser. Here I cite the poem to suggest it offers a description of a kind of critique, a kind of critique I think Nasser practiced and that we might, after him, attempt. I call this kind of critique working with by contrast to working through. It is a kind of “reckoning” but one that leaves normative judgment to others who may be better suited for it, perhaps those who do not have to ask if they are made for agreeing and disagreeing because, for them, that is what there is, what “has to be obeyed.” For Nasser, I believe, the charge is different. Like the Angelus Novus, he is helpless to change the past but he does not deny, try to explain, or judge the destruction and suffering he sees. But he does not turn his face away from the mounting horror to protect himself either. Instead, he works with what is there, what there is. While “Precious Five” may easily be identified with Auden’s “Christian poetry,” it is not necessary to conclude, as the literary critic Monroe Spears does, that “Bless what there is for being” means “the universe is ultimately good.” ⁹² What is given is beyond good and evil, and may be gratefully acknowledged simply for being and for presenting what we have to sort out. I think this is what Nasser does.

In fact, sorting out what is given is another way of saying what Nasser says law does – making divisions that realize presuppositions of difference and identity. This formulation seems milder than others I’ve offered above until we recall that making is, as Hannah Arendt notes in The Human Condition, a violent process. ⁹³ Indeed, Arendt claims there is an element of violation and violence in all fabrication. ⁹⁴ Human beings create out of “given substance,” she observes, “either killing a life process … or interrupting one of nature’s slower processes.” ⁹⁵ While Nasser is equally sanguine about the force involved in making, he is less confident about the absolute distinction between what Arendt calls the “model” and the “work process.” “What guides the work of fabrication is outside the fabricator and precedes the actual work process,” according to Arendt. ⁹⁶ As I have already noted, Nasser emphasizes instead “the interplay between typology and ontology between making distinctions and making claims of being based on those distinctions.” ⁹⁷

In this context, it is perhaps ironic but also appropriate to note that Nasser points out how Arendt’s association of race with a natural, given condition and law with constitutionalism and judicial rule prevents her from noticing “how law in fact puts race in place, how it utilizes a system of categories and rules, a general conception of types of people and of risk to institute and maintain a conceptual and physical segregation.” ⁹⁸ For Nasser calls attention here to Arendt’s failure to recognize race as a model or mental image in accordance with which law posits or puts in place a system of categories and rules. In addition, he highlights Arendt’s association of law with the rule of law rather than with administrative law, an association that obscures the legislative as well as regulative activity of law. In this way, Nasser reminds us that Arendt does not acknowledge the ambiguity of law, and in particular the uncertain character of the difference between its articulation, interpretation, and application.

I emphasize this point because I have suggested above that Nasser works with what is given, and this claim may seem contradictory given that I have also been arguing that Nasser is well aware of the difficulty of drawing any certain or final line between what is given and what is made, especially when it comes to law. What I want to stress over all is that instead of trying to fix or determine what exists, Nasser accepts the equivocality of existence as what there is. Acceptance of this equivocality lends Nasser’s claims a certain modesty, I think. Yet his humility – the word that Umphrey uses in her essay – does not detract from the rigor of his work, its insightfulness, and its capacity to provoke debate.

This brings me back to a final point about Nasser’s critical manner of thinking. Nasser’s modesty is not a way of evading responsibility for answering the question, “what is law?” Facing the ignominy of law, Nasser does not fail or forget to say what he thinks is the foundation of law. Nor does he indulge in the “negative nihilist” view that law without a (metaphysical) foundation is simply politics; in Nasser’s words, “such a response would, I think, miss the particular ambiguity of the situation.” ⁹⁹ Instead, as I have indicated already above, he offers multiple answers to the question, answers provided by others who have struggled to strike what they see as the right balance between the rule of law and emergency powers, or who have striven to find a stable position between the poles of fragmentation of law and consolidation of power. Again, this practice of Nasser’s is not an attempt to avoid taking a position. Rather, it is a practice that allows him to better reflect and reflect on law as it exists, as it takes place, as it is theoretically engaged. For law is constantly changing and shifting, and looking into the past there is no indication of improvement, nor sign of deliverance. Therefore, Nasser’s approach expresses an understanding of law that is no less “real” or “true” than law defined as commands backed by force or rules inscribed in human nature or a Grundnorm. Instead, again as I suggested above, it shows him to be a kind of pragmatist. The answers and positions that Nasser details may not always be honorable – indeed, they may never be to the extent that law is ignominious – but, following him, we may critically engage them without implying that we know what the “correct” answer should be.

IV. Conclusion

As I conclude this article, once again, I am inspired by an image from Benjamin. This time the image is of Benjamin himself collecting books for his library. Benjamin notes, “the chance, the fate, that suffuse the past before my eyes are conspicuously present in the accustomed confusion of these books.” ¹⁰⁰ In the familiar chaos of rare volumes and common tomes that he has brought together over time, Benjamin is presented with the ambiguous character of the past that culminates in this moment. Only a customary, unexamined way of thinking obscures the arbitrariness of events that have lead to it, and makes it seem as if it could not have been otherwise. Contemplating his books, Benjamin asks, “For what else is this collection but a disorder to which habit has accustomed itself to such an extent that it can appear as order?” ¹⁰¹ Reflecting on this incongruity, Benjamin concludes, “Thus there is in the life of a collector a dialectical tension between the poles of disorder and order.” ¹⁰²

For the collector, this tension is never resolved. Nevertheless, the collector experiences a great delight and fascination, “the most profound enchantment,” when they consider what they have assembled. According to Benjamin, in contemplation of what they have haphazardly brought together, the collector experiences “the final thrill, the thrill of acquisition.” ¹⁰³ This thrill is not the joy of possession but the excitement that caps “the locking of individual items within a magic circle in which they are fixed.” ¹⁰⁴ What “fixes” an item in this circle – what holds it in place as it is displayed, what serves as “the pedestal, the frame, the base, the lock of [the collector’s] property” – is “the whole background of an item” or “everything remembered and thought, everything conscious … the period, the region, the craftsmanship, the former ownership.” ¹⁰⁵ Because the true collector appreciates the things in his collection exist, on their own and for themselves, they cannot be known in themselves. Only their materiality, when it is carefully observed, may be lightly grasped. Hence, a true collector of books attends to bindings, publication dates, and editions, as well as their passage through time on shelves, in shops, in libraries, and among other things in others’ collections. For a true collector, Benjamin says, this “adds up to a magic encyclopedia whose quintessence is the fate of his object.” ¹⁰⁶ In other words, for a true collector, the uniqueness of a thing, that which makes it itself, its essence, is a function of its material history. Observing the yellowing of the paper and the fraying of the fabric edging holding together the books he has gathered, the collector sees through these books “into their distant past,” a past crowned by their encounter with the collector and the collection of which they are a part – their destination, by chance, or destiny.

As I go after my friend I find myself wondering to what extent my pleasure in what I choose to recall and recount of Nasser’s unique manner of thinking is due to the fact that I have not paid close enough attention to the tensions in his writing, the fragments that make up – and exceed – a single, coherent, brilliant, and beautiful body of work. In my framing of the pieces I have examined, have I not erred on the side of order and ignored the arbitrariness of Nasser’s interests and insights, imagining my collection to express some fundamental logic or principle that is alien to the experience of my friend who is their author? To emulate Nasser, to do justice to him, would it not be more appropriate to dwell amongst his papers, surrounded by his things, and observe how this random assortment of copies of documents, articles, essays, and books silently testify to having once been fixed in a magic circle drawn by Nasser?

It is too late now to start over. But I am consoled by the thought that according to Benjamin, the collector does not bring to life the books that he collects but, on the contrary, it is the collector who lives in them. Thus, to the extent we may always renew our acquaintance with Nasser’s collection of writings, we may continue to work with him, following him inside what he made as we seek to emulate the inimitable.