Michael J. Shapiro
University of Hawaii
In a recent article in the New York Times, Tobin Harshaw, equated assassinating Americans, with killing the Constitution. He referred to the practice, begun under the last Bush administration and continuing into the present, of authorizing the CIA, “to kill U.S. citizens abroad if strong evidence existed that an American was involved in organizing or carrying out terrorist actions against the United States or U.S. interests.” Reading the piece, I was struck by how common place such extraordinary measures have become. Outrage is expressed time and time again and the practices continue relatively unchanged despite the transition of political parties and presidents. Is the current climate of covert violence the necessary outcome of the times? Did it have to come to this?
In order to gain a politically perspicuous view of the way contemporary politics mobilizes the tensions between justice and its location within spaces we cannot control or effectively address (ultimately many are left with a sense of powerlessness to describe our opposition to state definitions and justifications of the police order), we need to defamiliarize the contemporary relationship between justice and the demand for order at all costs. As Foucault has noted, when referring to his “method,” to be able to grasp “the history of successive forms” and appreciate how peculiar the contemporary form is, he had “to stand detached from it, bracket its familiarity, in order to analyze the theoretical and practical context with which it has been associated” (hence his analysis of the way sexuality was problematized in ancient Greece). In a similar methodological gesture, the classical historian, Paul Veyne, notes that he is interested in analyzing Roman history because of the way it allows him to see the present: “Rome…takes us out of ourselves and forces us to make explicit the differences separating us from it.”
What kind of history could make our difference more apparent? If we recognize that the contemporary spatial strategy for responding to crimes is dominated by agencies whose ultimate horizon involves mechanisms of confinement, the system of law and justice in medieval Iceland is perhaps the best historical moment we can use to “take us out of ourselves.” As the writers of Icelandic Sagas teach us, medieval Iceland had a singular way of identifying political affiliation and allocating legal protection. A person’s affiliational identity was not that of the modern citizen subject. It was primarily communal rather than territorial inasmuch as it was tied to family and clan heredity. Nevertheless, one’s legal identity could migrate into a spatial mode because the movement from inside the law to outside of it (being outlawed) could be juridically determined at a yearly meeting of the clans at the Icelandic Althing. For example, if a person was charged with murder and thereby ordered to pay compensation to a victim’s family or clan, failure to come up with the payment would outlaw the perpetrator. Once outlawed, a person could be killed with impunity.
Although pieces of literature and thus imaginative reenactments of Icelandic events in general and juridical history in particular, the Sagas yield a significant analytic. Their characters challenge the necessity and inevitability of the current predicament of confinement. The characters of the Sagas varying relationships to juridical space – being either inside or outside of it – reflect a relatively unfamiliar model of the administration of justice. Unlike the mechanism of confinement, which has characterized centuries of the European and American justice systems, medieval Iceland administered justice by making the penalty a very precarious form of exclusion. For example, in Njal’s Saga, both a well intentioned character, the noble warrior Gunnar, who killed to protect himself, and an ill-intentioned character, the notorious Killer Hraap, who killed arbitrarily, end up outside the law and are killed by their enemies. At a minimum, the part-time administration of justice at the medieval Icelandic Althing functioned to allocate bodies to a space where there was no law.
By looking at the juridico-political system of medieval Iceland in the present, we are able to reflect on the historical trajectory of relationships between bodies and legal spaces and defamiliarize the current relationship. The outlawing practice in medieval Iceland was not predicated on the kind of security issues that are preoccupying the contemporary state. Outlawing was designed to disconnect wealth and violence and to regulate inter-clan violence. The almost certain consequence of being placed outside the law was death at the hands of one’s enemies. Because there was no centralized system of revenge, retaliation for the alleged crime was strictly free lance; it was in the hands of the aggrieved parties and their allies. The result could be catastrophic because it was common for cycles of retaliation to develop and engulf the entire social order. Indeed, the justice system of the modern state was designed in part to avoid the escalating cycles of violence that have occurred in pre state political systems. By monopolizing retaliation, the state monopolizes and depersonalizes revenge.
Although the administration of confinement in prison systems and other more ad hoc or spontaneous places of confinement remains the ultimate horizon of contemporary justice systems for those “brought to justice”, the strategy of outlawing is invoked when a citizen (someone presumptively inside the law) is, by executive order, translated into an enemy status (for example the current U.S. practice of designating some Americans as “enemy combatants” or those providing “material support” for terrorist organizations). Such translations are increasingly the case. Once the “war on terror” reached its current level of expansion, it began to resemble practices that Foucault ascribed to modern medicine; its locations included a nomenclature (a list of terrorist acts), ways of classifying bodies (e.g., psycho-biological discourses on the terrorist were engendered), and a proliferating set of surveilling and policing agencies. Some of those agencies lack killing power - for example the public health services that are now licensed to heed the dangers of biological terrorism – but some – for example the CIA - are enjoined to engage in extra-judicial killing of those placed outside the law. And insofar as the decisions for such juridical exclusions are made in places sequestered away from public media (unlike those taken at the Icelandic Althing) it is difficult to demand accountability for each execution (or in many cases to even learn about it).
