On Fathers and Other Figures

I. Introduction: Revelations

Five days after receiving the news about Peter Fitzpatrick’s death in the early days of the COVID-19 lockdown, I was watching an online lecture given by American constitutional scholar, Bruce Ackerman. Ackerman said to his audience, made up of mostly emerging intellectuals, that the future of legal scholarship demanded practice, not theory. He claimed, there is an imperative for legal scholars to speak to policy and forego esoteric ruminations on legal dilemmas. In that moment, although I was surrounded by hundreds of others in an online lecture, I felt very alone.

Peter’s work is well-known for taking up dense theoretical arguments, explaining them in dense theoretical terms. But it is also deeply committed to the ‘real world’. His passionate attachment to anti-racism, anti-colonialism and other forms of material and symbolic justice oozed from his scholarship and his everyday life. Moreover, Peter brought with him a diverse coterie of like-minded emerging scholars from around the globe. Rumours of his office reading groups held around an old canoe are of near mythical status. Peter built a dynamic scholarly community, and many of his students continue to write and read together from many places around the world. It was this circle of intellectuals that I longed for in the midst of Ackerman’s pronouncement.

Peter was my academic grandfather (he was the thesis supervisor to my thesis supervisor). So, while I was not an immediate figure in these scenes, I received – as many grandchildren do – love and attention from a distance. Although I enjoyed time in the limelight of Peter’s attention for much of my early career, it was only after his death that I truly felt the power of his support and belief in me and my work; it had a much more profound impact on me than I realised.

Recognition from an acclaimed senior scholar is a powerful thing. I said at the time of Peter’s passing, ‘some people are able to give you wings you didn’t know you had’. And it is true. Peter’s encouragement was transformative in the confidence it instilled in me. This was not only because of his status (although how do you separate the status from the man?), but also because he was an intellectual father figure to me. One of the easy take-aways from my late onset realisation of the power of his recognition is that, in future, I will always try to see – really ‘see’ – promising graduate students the way Peter saw me. His approval was crucial in my development as a scholar. The more complicated take-away, however, is the difficult confrontation with the role of the father, or the grandfather, or perhaps the ‘see-er’ in general, in engendering legacies of confidence and success. Peter’s validation in the form of references and plans for co-authorship opened doors, granting institutional access in varied ways. Fathers like Peter have the ability to anoint others, bestowing status on those lucky enough to be their progeny. And this, of course, is one of the key ways that legacies of privilege survive in the academy, however unintentionally. This double-sided quality of patrilineal recognition requires reflection.

The coincidence of Peter’s place in my life as an academic father of sorts, when he himself was so interested in totemic fathers, is not lost on me. Nor would it be lost on him. His paternal lineage in the area of law and post-colonial thinking is hard to ignore. As we remember his many personal and professional contributions to the field of critical legal studies, I want to reflect both on Peter’s place as father, now totem, and also on the paradoxical and ambiguous narratives that such a figure evokes. My reflection also extends beyond Peter to consider some contemporary (yet longstanding) debates about the place of canonical figures on university syllabi. While diversification of cited thinkers is clearly a desirable goal, I suggest that a simple call for the eradication of father figures (‘why read old dead white guys?’) misses one of the key insights offered by one such old white guy. According to Peter, the celebration of the father is not a celebration at all, nor is it simply the institutionalisation of mere subservience to the totem, as some arguments about re-styling syllabi might contend. What Peter shows is that the father story is the ur-myth of modernity. As we criticise the canon and its status, we miss this revelation and, inadvertently re-circulate monumental stories of colonial and patriarchal origins. In so doing, we perpetuate the myth of modernity as distinct from a ‘maternal’ and ‘savage’ past and re-centre the status of the canon. The following ode to Peter will dwell on his commitment to thinking through decolonisation via the myth of the father; it will remind us that attachment to totemic worship comes both in the form of an uncritical embrace of the father or canon, as well as the outright rejection of it. This piece takes inspiration from Hélène Cixous’s insight that ‘we don’t know, either universally or individually, exactly what our relationship to the dead is’. ¹ Perhaps another way of linking the reflections that follow is that our relationship to the dead is ambiguous: it occasions contemplation, rather than simple totemic worship or totemic defilement.

II. Reflection One: Totems

In Modernism and the Grounds of Law, Peter argues that Freud simultaneously uses and dispels with the figure of the ‘savage’ in the construction of modern society; at once, the savage is both banished from and instituted as a building block in the construction of modernity. This happens as Freud narrates the origin of social organisation through the murder of the father.

According to Freud, the brothers rise up one day against the father and, animated by supressed desire for their mother, kill the patriarch. The patricide is followed by a feast of cannibalism ‘which is perhaps mankind’s first celebration, would be the repetition and commemoration of this memorable, criminal act with which so many things began, social organization, moral restrictions and religion’. ² It is in the aftermath of the father’s murder that guilt is born; out of remorse, the sons institute new laws against murdering the father (now symbolised in the figure of the totem) and against incestuous relations. Famously, ‘the dead now became stronger than the living had been’. ³ The institutionalisation of the father’s renewed power as totem and the paradoxical relation to the brothers it engenders (the sons are supposedly now masters of their own destiny but also subservient to the totem) is, for Freud, the archetype of modern law.

Peter’s brilliant insight is that Freud’s story relates modern law’s great paradox: law needs to both be determinate (fixed in a transcendent source) and flexible (reactive to human dynamics). Further, this identity crisis for law – its inability to ground itself or attach to a positive identity – weds law to an external source of determination: in Freud’s case, the ‘savage.’ In their construction of society, the brothers attempt to institute a new order, but end up tying themselves inextricably to the old. As they try to flee savagery, they construct their new world upon its negation. The figure of the savage, according to moderns, is banished. But, in reality, it is snuck back in via modernity’s negative determination of itself as ‘not savage’.

This theme is not relegated to one book. Throughout his career, Peter adeptly showed the aporetic thinking of legal theorists that attempt to solidify the grounds of law, whether in a transcendent or immanent source. Each time he shows how scholars, such as H.L.A. Hart, Jean-Jacques Rousseau and Antonio Negri, overstretch their explications of law’s authority. ⁴ Each time he shows how these authors’ attempts to render law (or constituent power in the case of Negri) a fixed and closed system inevitably rely on a contradiction of an outside, an indeterminate source, from which law must draw its negative determination:

How could the rule of law be complete if it must ever respond to the infinite variety of fact and circumstance impinging upon it? How could it be closed when it must hold itself constantly responsive to all that is beyond what it may at any moment be? And how could law, in extending to what is continually other to itself, avoid pervasive contradiction? ⁵

But this is not a criticism in of itself: it is the paradox of law. Law is incessantly caught between claims to absolute determinacy and flexibility; it is at once heralded as a ‘living tree’ and as an original ‘social contract’. Peter’s great insight is that law’s narrators attempt to tell a story of origins that ignore this ambivalence. In so doing, they contribute, like Freud’s mythology of the father, to the mythology of law. And it is this eradication of ambivalence of law and of the father that I want to explore further.

III. Reflection Two: Inheritances

There is no doubt that we inherit much from father figures. My own father is a man of honour. And a man of pride. Raised on the streets of Toronto without completing high school, he found work on factory lines and in janitorial rooms, until he could no longer hold a steady job due to an undiagnosed illness. Years later, after working odd jobs as a self-taught carpenter, electrician and general handyman, he was diagnosed with Multiple Sclerosis, a neurological disease that interrupts communication between the brain and the rest of your body, leading to diminished muscle control, loss of balance, dizziness and a long subset of debilitating side effects.

While this disease took hold of my father’s body, his strong feelings about right and wrong, the importance of caring for the vulnerable and love for his youngest daughter never subsided. He was quick to anger when his emotions were stirred. One day, after my 10-year-old self’s soccer game, a young man in a hot car drove too close and too quickly towards a crowd of families. The car stopped just in time. But, my father, never being one to let things go, nor a man of many words, took it upon himself to make it a lesson for the driver. That day my father’s pride was arrested by the Peterborough Police.

My father inherited his disease from his working-class labouring conditions; I inherited my pride from my father. From him, I developed a strong sense of justice and learned that I ought to be the one to carry that justice out, sometimes to my detriment. Like my father, I have a hard time letting things go. I feel that lessons should be learned, mistakes should be pointed out, and truth should be uttered. If someone wrongs me, I feel compelled to address this wrong before moving on. This inheritance is my Achilles’s heel.

Achilles owes his own weakness to his mother. At least in one reading of the story, it is his mother Thetis that, in trying to protect him from his fated early death, holds him by the heel as she dips him in the magical River Styx, thereby leaving the tendon vulnerable to attack. ⁶ A more nuanced take might insist that the merciless Gods and their cruel dramas are to blame for Achilles’s undoing; it doesn’t take much to see that putting the onus on Thetis is merely the outcome of a long-standing misogynist cultural hang-up.

Julia Kristeva articulates the dilemma. In her essay Stabat Mater, Kristeva explains a fundamental paradox of the ‘maternal’ figure. ⁷ She cites Mary, mother of Jesus, as the archetypal maternal figure that paves the way for our contemporary, Christian-influenced, ideas of the mother. Kristeva claims that this figure is the giver of humanity, but she herself is not human. On the one hand, Jesus is only ‘human’ through his mother; on the other hand, Mary herself is not fully human but only a conduit – ‘a “link,” a “surrounding,” or an “interval” – for the event of the Son’. ⁸ Thetis too gives humanity to Achilles (in the form of his vulnerability). But, beyond this, there is no fleshed-out character of Thetis as mother or human. In these stories, ‘any trace of matrilinearity is explicitly disavowed, leaving only the symbolic tie between mother and son’. ⁹

According to Peter, ‘matriarchy’ functions like the ‘savage’ in giving the patriarchal its determination. But one could go further and say that woman is, like the savage, both expelled from and constitutive of the social in Freud’s own theory. Indeed, the primary motivation for the sons’ patricide is a prohibited desire for the mother. Does this make the mother more powerful in the myth of the totem than the father? She is not enshrined in an authorial object as the father is, but her absence does not indicate a lack. Rather, the story of totem and taboo is one that is primarily about the mother, but that figure is elided in a myth that lionises the father. And this elision makes her all the more powerful. As Kelly Oliver says drawing on Kristeva: ‘the maternal body prefigures the Law of the Father and the onset of the Symbolic’. ¹⁰ And so the myth of the father is always already bound up with the mother.

As the myth of the powerful father – whether dead or alive – continues to grip our imaginations, we falsely relegate the maternal and the savage to the event, the occasion, the conduit that is now safely in the past. Yet, while the savage and the maternal may pre-figure the patriarchal, this should not be a license to institute a new, updated origin story with a new totem. The takeaway is that these figures introduce an ambivalence to the story of the father, much like the ambivalent story of the ‘grounds’ of law. When looked at closely, we see the fissures in the neat construction of the origins of society, law and authority. Achilles’s vulnerability comes from many places – not merely his mother; the same can be said for my own Achilles’s heel – it does not merely come from my father. Inheritance and are stories of origins are volatile and aporetic, but not in a way that makes them ‘false’; this is their inherent mode of existence.

IV. Reflection Three: Alma Mat(t)ers

Where did ‘I’ come from? My father and his illness, my mother, my grandparents, my class background, my credentials, my settler-colonial life upon the land on which I was raised: Peterborough or Nogojiwanong in Anishinaabemowin. ¹¹ Words that contain life-times – and more – in themselves. The living and the dead make us. Debates about fatherly figures, citational lineage and bibliographies left in our wakes demand that we reflect on these inheritances. But as we consider our genealogies, we must be careful not to fall into totemic worship whether by negative or positive means. An absolute rejection, or uncritical embrace of the totem redeploys the powerful myth of modernity as autonomous and complete – supposedly divorced from the savage and maternal past from which it came. This is as true for names in syllabi and bibliographies as it is for content. As Audra Simpson and Andrea Smith claim in their defence of ‘theory’:

When we take account of the historical and political conditions that structure theory as a thing that appears through theory’s relationships to capital, or in relation to discourses of civilization and savagery, we may ask how a heightened awareness about the history of ideas, and the practice of ideas, will not only allow us to theorize and critique robustly but also help us to build a more just set of relations between people. ¹²

And so when, in the midst of a global pandemic, Ackerman bifurcates theory and reality, only to denigrate the former, I smell the lurking myth of the father. Not only in the status of man that pronounces what is to be done, but in the sure-footedness of declaring what matters to the future: the totemic worship of ‘reality’.

Peter’s work suggests that we recognise the ambivalent genealogies that constitute us now and in the future in order to avoid perpetuating the enduring myth of modernity. Then what can be said? Where do we go from here? Cixous’s imperative from 1993, used as an epigraph above, gives some insight: ‘we can think [the relationship to the dead] with the help of writing, if we know how to write, if we dare write’. ¹³ And I add a friendly amendment: I say – and also – if we dare read. Read and write our fathers, read and write our mothers, read and write ourselves. We will find that the lines of demarcation are equivocal at best and, in exploring our relationships with the dead, we prepare ourselves to build more just relations with the living.