When Law is NOT Justice

July 14, 2016

This conversation is with Gayatri Chakravorty Spivak, who is a university professor in the humanities at Columbia University. She is the author of “An Aesthetic Education in the Era of Globalization,” and other books.

Brad Evans: Throughout your work, you have written about the conditions faced by the globally disadvantaged, notably in places such as India, China and Africa. How might we use philosophy to better understand the various types of violence that erupt as a result of the plight of the marginalized in the world today?

Gayatri Chakravorty Spivak: While violence is not beyond naming and diagnosis, it does raise many challenging questions all the same. I am a pacifist. I truly believe in the power of nonviolence. But we cannot categorically deny a people the right to resist violence, even, under certain conditions, with violence. Sometimes situations become so intolerable that moral certainties are no longer meaningful. There is a difference here between condoning such a response and trying to understand why the recourse to violence becomes inevitable.

When human beings are valued as less than human, violence begins to emerge as the only response. When one group designates another as lesser, they are saying the “inferior” group cannot think in a “reasonable” way. It is important to remember that this is an intellectual violation, and in fact that the oppressed group’s right to manual labor is not something they are necessarily denied. In fact, the oppressed group is often pushed to take on much of society’s necessary physical labor. Hence, it is not that people are denied agency; it is rather that an unreasonable or brutish type of agency is imposed on them. And, the power inherent in this physical agency eventually comes to intimidate the oppressors. The oppressed, for their part, have been left with only one possible identity, which is one of violence. That becomes their politics and it appropriates their intellect.

This brings us directly to the issue of “reasonable” versus “unreasonable” violence. When dealing with violence deemed unreasonable, the dominating groups demonize violent responses, saying that “those other people are just like that,” not just that they are worth less, but also that they are essentially evil, essentially criminal or essentially have a religion that is prone to killing.

And yet, on the other side, state-legitimized violence, considered “reasonable” by many, is altogether more frightening. Such violence argues that if a person wears a certain kind of clothing or belongs to a particular background, he or she is legally killable. Such violence is more alarming, because it is continuously justified by those in power.

B.E.: At least some violent resistance in the 20th century was tied to struggles for national liberation, whether anti-colonial or (more common in Europe) anti-fascist. Is there some new insight needed to recognize forces of domination and exploitation that are separated from nation states and yet are often explained as some return to localism and ethnicity?

G.C.S.: This is a complicated question demanding serious philosophical thought. I have just come back from the World Economic Forum, and their understanding of power and resistance is very different from that of a group such as the ethnic Muslim Rohingya who live on the western coast of Myanmar; though both are already deeply embedded in global systems of power and influence, even if from opposing sides. The Rohingya have been the victims of a slow genocide as described by Maung Zarni, Amartya Sen and others. This disrupts an Orientalist reading of Buddhism as forever the peace-loving religion. Today, we see Buddhists from Thailand, Sri Lanka and Myanmar engage in state-sanctioned violence against minorities.

The fact is that when the pro-democracy spokesperson Aung San Suu Kyi was under house arrest there, she could bravely work against oppressive behavior on the part of the military government. But once she was released and wanted to secure and retain power, she became largely silent on the plight of these people and has sided with the majority party, which has continued to wage violence against non-Buddhist minorities. One school of thought says that in order to bring democracy in the future, she has to align herself with the majority party now. I want to give Ms. Aung San Suu Kyi the benefit of the doubt. But when the majority party is genocidal, there is a need to address that. Aligning with them cannot possibly bring democracy.

However, rather than retreating back into focused identity politics, resistance in this context means connecting the plight of the Rohingya to global struggles, the context of which is needed in order to address any particular situation. Older, national, identity-based struggles like those you mention are less persuasive in a globalized world. All of this is especially relevant as Myanmar sets up its first stock exchange and prepares to enter the global capitalist system.

In globalization as such, when the nation states are working in the interest of global capital, democracy is reduced to body counting, which often works against educated judgments. The state is trapped in the demands of finance capital. Resistance must know about financial regulation in order to demand it. This is bloodless resistance, and it has to be learned. We must produce knowledge of these seemingly abstract globalized systems so that we can challenge the social violence of unregulated capitalism.

B.E.: What are the implications when the promotion of human rights is left to what you have called “self-appointed entrepreneurs” and philanthropists, from individuals such as Bill Gates onto organizations like the World Bank, who have a very particular conception of rights and the “rule of law?”

G.C.S.: It is just that there can be law, but law is not justice.

The passing of a law and the proof of its existence is not enough to assure effective resistance to oppression. Some of the gravest violations of rights have occurred within legal frameworks. And, if that law governs a society never trained in what Michel Foucault would call “the practice of freedom,” it is there to be enforced by force alone, and the ones thus forced will find better and better loopholes around it.

That is why the “intuition” of democracy is so vital when dealing with the poorest of the poor, groups who have come to believe their wretchedness is normal. And when it comes time to starve, they just tighten their nonexistent belts and have to suffer, fatefully accepting this in silence. It’s more than children playing with rocks in the streets. It takes over every aspect of the people’s existence. And yet these people still work, in the blazing heat, for little or next to nothing for wealthy landowners. This is a different kind of poverty.

Against this, we have this glamorization of urban poverty by the wealthier philanthropist and aid agencies. There is always a fascination with the picture-perfect idea of poverty; children playing in open sewers and the rest of it. Of course, such lives are proof of grave social injustice. But top-down philanthropy, with no interest in an education that strengthens the soul, is counterproductive, an assurance that there will be no future resistance, only instant celebrity for the philanthropist.

I say “self-appointed” entrepreneurs because there is often little or no regulation placed upon workers in the nongovernmental sector. At best, they are ad hoc workers picking up the slack for a neo-liberal state whose managerial ethos cannot be strong on redistribution,, and where structural constitutional resistance by citizens cannot be effective in the face of an unconstituted “rule of law” operating, again, to protect the efficiency of global capital growth. The human rights lobby moves in to shame the state, and in ad hoc ways restores rights. But there is then no democratic follow-up, and these organizations rarely stick around long enough to see that.

Another problem with these organizations is the way they emphasize capitalism’s social productivity without mentioning capital’s consistent need to sustain itself at the expense of curtailing the rights of some sectors of the population. This is all about the removal of access to structures of reparation: the disappearance of the welfare state, or its not coming into being at all.

If we turn to “development,” we often see that what is sustained in sustainable development is cost-effectiveness and profit-maximization, with the minimum action necessary in terms of environmental responsibility. We could call such a thing “sustainable underdevelopment.”

Today everything is about urbanization, urban studies, metropolitan concerns, network societies and so on. Nobody in policy circles talks about the capitalization of land and how this links directly to the dispossession of people’s rights. This is another line of inquiry any consideration of violence must take into account.

B.E.: While you have shown appreciation for a number of thinkers known for their revolutionary interventions, such as Frantz Fanon, you have also critiqued the limits of their work when it comes to issues of gender and the liberation of women. Why?

G.C.S.: I stand by my criticism of Fanon, but he is not alone here. In fact he is like most other men who talk about revolutionary struggle. Feminist struggle can’t be learned from them. And yet, in “A Dying Colonialism,” Fanon is really trying from within to understand the position of women by asking questions about patriarchal structures of domination.

After the revolution, in postcolonial Algeria and elsewhere, those women who were part of the struggle had to separate themselves from revolutionary liberation organizations that were running the state in order to continue fighting for their rights under separate initiatives. Gender is bigger and older than state formations and its fight is older than the fight for national liberation or the fight between capitalism and socialism. So we have to let questions of gender interrupt these revolutionary ideas, otherwise revolution simply reworks marked gender divisions in societies.

B.E.: You are clearly committed to the power of education based on aesthetic practices, yet you want to challenge the canonical Western aesthetic ideas from which they are derived using your concepts of “imaginative activism” and “affirmative sabotage.” How can this work?

G.C.S.: Imaginative activism takes the trouble to imagine a text — understood as a textile, woven web rather than narrowly as a printed page — as having its own demands and prerogatives. This is why the literary is so important. The simplest teaching of literature was to grasp the vision of the writer. This was disrupted in the 1960s by the preposterous concern “Is this book of relevance to me?” which represented a tremendous assault on the literary, a tremendous group narcissism. For literature to be meaningful it should not necessarily be of obvious relevance. That is the aesthetic challenge, to imagine that which is not immediately apparent. This can fight what is implicit in voting bloc democracy. Relevant to me, rather than flexible enough to work for others who are not like me at all. The inbuilt challenge of democracy – needing an educated, not just informed, electorate.

I used the term “affirmative sabotage” to gloss on the usual meaning of sabotage: the deliberate ruining of the master’s machine from the inside. Affirmative sabotage doesn’t just ruin; the idea is of entering the discourse that you are criticizing fully, so that you can turn it around from inside. The only real and effective way you can sabotage something this way is when you are working intimately within it.

This is particularly the case with the imperial intellectual tools, which have been developed not just upon the shoulders, but upon the backs of people for centuries. Let’s take as a final example what Immanuel Kant says when developing his “Critique of Aesthetic Judgment.” Not only does Kant insist that we need to imagine another person, he also insists for the need to internalize it to such an extent that it becomes second nature to think and feel with the other person.

Leaving aside the fact that Kant doesn’t talk about slavery whatsoever in his book, he even states that women and domestic servants are incapable of the civic imagination that would make them capable of cosmopolitan thinking. But, if you really think about it, it’s women and domestic servants who were actually trained to think and feel like their masters. They constantly had to put themselves in the master’s shoes, to enter into their thoughts and desires so much that it became second nature for them to serve.

So this is how one sabotages. You accept the unbelievable and unrelenting brilliance of Kant’s work, while confronting the imperial qualities he reproduces and showing the contradictions in this work. It is, in effect, to jolt philosophy with a reality check. It is to ask, for example, if this second-naturing of women, servants and others can be done without coercion, constraint and brainwashing. And, when the ruling race or class claims the right to do this, is there a problem of power being ignored in all their claimed benevolence? What would educated resistance look like in this case? It would misfire, because society is not ready for it. For that reason, one must continue to work — to quote Marx — for the possibility of a poetry of the future.

 Now in print: “The Stone Reader: Modern Philosophy in 133 Arguments,” an anthology of essays from The Times’s philosophy series, edited by Peter Catapano and Simon Critchley, published by Liveright Books.

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9 thoughts on “When Law is NOT Justice

  1. Dr. Phua,

    This is up your intellectual street. May you lead the discussion with follow-up comments from Conrad, CLF, Veritas, Abnizar, Frankie Lueng, and the rest. –Din Merican

  2. Actually, not an area where I have intellectual expertise.
    I’m more interested in comparative politics and comparative public policy.

    Off-hand, I would like to recommend a book by
    Barber called “Jihad Versus McWorld”.
    That book is out of date. You should read WEF Chairman’s insightful book, The Fourth Industrial Revolution (2016) in stead. –Din Merican

  3. Dear Madam Gayatri,

    Very good article. Third World Leaders must understand that they must also play by the rules not with them.

  4. Ha….Ha….Dato’ Din, even legal experts or lawyers do get entangled in legal principles, what more ‘ when law is not justice ‘ when ‘justice ‘ is supposed to emanate from the Law. I am merely trying to recollect few things , which by now is gone ‘rusty ‘ !

    Inspite of something being legal or fixed , look at this maxim in Latin :

    ” leges posteriores priores contrarius abrogant ” ( refreshing a little of my latin too. ) , meaning : Later laws abrogate prior contrary laws . Which is to say that if the prior maxim/s seem to be ambivalent or ‘lacking’ being unable to fulfill the quality of justice, the new ruling or legal postulate will necessitate the abrogation of the former –

    So the quality of justice should in all cases be the prevalent , over legalities which in course of time become archaic , as to be unable for the provision of justice….in any given case.

    One cannot really comprehensively define ‘ justice ‘ , because the quality of being just is righteousness or moral rightness …..

    Hence, litigating parties in Court get exasperated , because different Court/s hand out different, different rulings in differing sets of cases before them. ( Court’s jusitfy themselves by saying : these are different sets of circumstances….)

  5. Justice is the substantive, whereas law or legalities is the instrument by which to achieve the former , the Substantive…..

    Anyway, they are both scientific in quality , and things do evolve through changing circumstances : could we say that one ( justice ) as the objective, the other the law, subjective….?

  6. ” Justice has its true and constant purpose to render to every man his due….” –

    Law or Legalism is often shackled with rigidities which disables the attainment of such purpose……?

  7. Dr Phua seems to have suggested a good book to think about on the topic, albeit being dated, as per Dato Din’s suggestion.

    One such review of the book came with this conclusion:
    Democrats need to seek out indigenous democratic impulses. There is always a desire for self-government, always some expression of participation, accountability, consent, and representation, even in traditional hierarchical societies. These need to be identified, tapped, modified, and incorporated into new democratic practices with an indigenous flavor. The tortoises among the democratizers may ultimately outlive or outpace the hares, for they will have the time and patience to explore conditions along the way, and to adapt their gait to changing circumstances. Tragically, democracy in a hurry often looks something like France in 1794 or China in 1989.

    If Justice works on a moral scale, I came to realize Moral truth is often merely a reflection of the pyschological state of a society, rather than an universal Kantian rule-based imperative of how society ought to function. Rules are implicitly there. But, our sense of Moral judgement often merely reflects our attempts to quantify and qualify a perception. That is why I like what the Professor mention about the need to seek out the truth encompassed by our literature that reflects the state of mind of our society transforming itself across time, and the need for us to see the possibility of noticing those subtle changes.

    In short, our Melayu has to come to terms of its own meaning of “Justice”, and craft out its perception of fairness. I spoke loudly with my feet, and proudly claimed that I am a “penumpang”. That is my way to claim back my right to resist without resorting to violence. Yet, that is clearly not necessarily the only way, and not to mention that it is not a good way. Melayu would change and could change. That is my hope for Malaysia’s needed “affirmative sabotage”.

    We saw the change as the Sultans/Melayus accepted Tun M, and Dato Din into the Malay world. Both men changed Malaysia drastically.

    Reflecting on how I viewed the South China Seas issue, as opposed to many Chinese from China whom I have met, I realized I too have changed, simply because I grew up in Malaysia. I like what the Professor is attempting to do.

  8. This issue was highlighted by the late Justice Hashim Yeop Sani when he was presiding over a drug case and also over a murder case. In the drug case there is only 2 verdict, guilty or not guilty. Guilty you hang and not guilty you go free. There is no guilty of a lesser offense thereby making it difficult for the Presiding Judge.
    The other case was in Aceh where a woman was charged with stealing to feed her family. The judge set her free and instead asked everyone in court to pay a fine to be given to the woman so she can buy the food for her family. The judge in passing sentence cited that society have failed to provide or ensure that no one is so poor as to resort to stealing to feed their family. That is how law should be administered to ensure justice.

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