653, 666 (1979), it was decided that "white person" could include corporations because the "larger con- text" and "purpose" of the law was to protect Indians against non- Indian squatters, and would be frustrated if a "white person" could simply
incorporate
in order to escape the provision of the law.
Paul-de-Man-Material-Events
It is presupposed, not defined.
Yet the examples of proper names de Man gives are surprising: Narcissus and Daphne. Nietzsche's triumvirate of metaphor, metonymy, and anthropomorphism then functions like the plot of an Ovidian metamorphosis: from a mythological world in which man and nature appear to be in metaphorical and metonymic harmony, there occurs a crisis wherein, by a process of seamless transformation, a break never- theless occurs in the system of correspondences, leaving a residue that escapes and remains: the proper name. De Man's discussion of Baudelaire's sonnets will in fact be haunted by Ovidian presences: Echo is lurking behind every mention of Narcissus, while one of the re- curring cruxes is whether there is a human substance in a tree. It is per- haps not an accident that the figures that occupy the margins of de Man's discussion are female. If de Man's enduring question is whether
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linguistic structures and epistemological claims can be presumed to be compatible, the question of gender cannot be located exclusively either in language (where the gender of pronouns, and often of nouns, is in- herent in each language) or in the world. By extension, the present dis- cussion of the nature of "man" cannot fail to be haunted by the ques- tion of gender.
The term anthropomorphism in Nietzsche's list thus indicates that a given is being forced into what otherwise would function as a pure structure of relation. In addition, Nietzsche calls truth an army of tropes, thus introducing more explicitly the notion of power, force, or violence. This is not a notion that can fit into the oppositions between epistemology and rhetoric, but rather disrupts the system. In the text of the Supreme Court decision that I will discuss in a moment, such a disruption is introduced when the opposition on which the case is based, the opposition between natural person and artificial entity, opens out onto the question of policy. There, too, it is a question of truth and power, of the separation of the constative--what does the law say? from the performative--what does it do?
The bulk of de Man's essay is devoted to a reading of two sonnets by Baudelaire: "Correspondances" and "Obsession," which I here reproduce. 10
Correspondances
La Nature est un temple ou` de vivants piliers Laissent parfois sortir de confuses paroles; L'homme y passe a` travers des fore^ts de symboles Qui l'observent avec des regards familiers.
Comme de longs e? chos qui de loin se confondent Dans une te? ne? breuse et profonde unite? ,
Vaste comme la nuit et comme la clarte? ,
Les parfums, les couleurs et les sons se re? pondent.
Il est des parfums frais comme des chairs d'enfants, Doux comme les hautbois, verts comme les prairies, --Et d'autres, corrompus, riches et triomphants,
Ayant l'expansion des choses infinies,
Comme l'ambre, le musc, le benjoin et l'encens, Qui chantent les transports de l'esprit et des sens.
[Correspondences
Nature is a temple, where the living pillars Sometimes utter indistinguishable words; Man passes through these forests of symbols Which regard him with familiar looks.
Like long echoes that blend in the distance Into a unity obscure and profound,
Vast as the night and as the light,
The perfumes, colors, and sounds correspond.
There are some perfumes fresh as a baby's skin, Mellow as oboes, verdant as prairies,
--And others, corrupt, rich, and triumphant,
With all the expansiveness of infinite things, Like ambergris, musk, benjamin, incense, That sing the transports of spirit and sense. ]
Obsession
Grands bois, vous m'effrayez comme des cathe? drales; Vous hurlez comme l'orgue; et dans nos coeurs maudits, Chambres d'e? ternel deuil ou` vibrent de vieux ra^les, Re? pondent les e? chos de vos De profundis.
Je te hais, Oce? an! tes bonds et tes tumultes,
Mon esprit les retrouve en lui; ce rire amer
De l'homme vaincu, plein de sanglots et d'insultes, Je l'entends dans le rire e? norme de la mer.
Comme tu me plairais, o^ nuit! sans ces e? toiles Dont la lumie`re parle un langage connu!
Car je cherche le vide, et le noir, et le nu!
Mais les te? ne`bres sont elles-me^mes des toiles Ou` vivent, jaillissant de mon oeil par milliers, Des e^tres disparus aux regards familiers.
[Obsession
You terrify me, forests, like cathedrals;
You roar like organs; and in our cursed hearts, Chambers of mourning that quiver with our dying, Your De profundis echoes in response.
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How I hate you, Ocean! your tumultuous tide
Is flowing in my spirit; this bitter laughter
Of vanquished man, strangled with sobs and insults, I hear it in the heaving laughter of the sea.
O night, how I would love you without stars, Whose light can only speak the words I know! For I seek the void, and the black, and the bare!
But the shadows are themselves a screen
That gathers from my eyes the ones I've lost,
A thousand living things with their familiar looks. ]
Both poems end up raising "man" as a question--"Correspondances" looks upon "man" as if from a great distance, as if from the outside; "Obsession" says "I," but then identifies with "vanquished man" whose laugh is echoed in the sea.
"Correspondances" is probably the most canonical of Baudelaire's poems in that it has justified the largest number of general statements about Baudelaire's place in literary history. The possibility of literary history ends up, in some ways, being the real topic of de Man's essay. De Man will claim that the use of this sonnet to anchor the history of "the symbolist movement" is based on a reading that ignores a crucial element in the poem, an element that, if taken seriously, will not allow for the edifice of literary history to be built upon it.
"Correspondances" sets up a series of analogies between nature, man, symbols, and metaphysical unity, and among manifestations of the different physical senses, all through the word "comme" ("like"). A traditional reading of the poem would say that the lateral analogies among the senses (perfumes fresh as a baby's skin, mellow as oboes, green as prairies) are signs that there exists an analogy between man and nature, and man and the spiritual realm.
De Man focuses on this analogy-making word, "comme," and notes an anomaly in the final instance. Whereas the first uses of "comme" in the poem equate different things into likeness, the last one just intro- duces a list of examples--there are perfumes that are rich and corrupt, like musk, ambergris, and frankincense. This is thus a tautology-- there are perfumes like . . . perfumes. De Man calls this a stutter. He writes, "Comme then means as much as 'such as, for example'" (249). "Ce Comme n'est pas un comme comme les autres" (249), writes de Man in a sudden access of French. His sentence performs the stutter he
attributes to the enumeration of the perfumes. Listing examples would seem to be quite different from proposing analogies. If the burden of the analogies in "Correspondances" is to convince us that the meta- phorical similarities among the senses point to a higher spiritual unity, then sheer enumeration would disrupt that claim.
There is another, more debatable, suggestion in de Man's reading that attempts to disrupt the anthropomorphism of the forest of sym- bols. De Man suggests that the trees are a mere metaphor for a city crowd in the first stanza. If the living pillars with their familiar glances are metaphorically a city crowd, then the anthropomorphism of nature is lost. Man is surrounded by tree-like men, not man-like trees. It is not "man" whose attributes are taken on by all of nature, but merely a crowd of men being compared to trees and pillars. De Man notes that everyone resists this reading--as do I--but the intensity with which it is rejected does make visible the seduction of the system that puts nature, god, and man into a perfect unity through the symbol, which is what has made the poem so important for literary history. Similarly, if the last "comme" is sheer enumeration rather than similarity, the transports in the last line of the poem would not get us into a transcen- dent realm, but would be like getting stuck on the French transporta- tion system (which, as de Man points out, uses the word "correspon- dance" for changes of station within the system). All these tropes would not carry us away into the spiritual realm, but would be an infi- nite series of substitutions. The echoes would remain echoes and not merge into a profound unity.
If "Correspondances" is said to place man in the center of a uni- verse that reflects him in harmony with all of nature, the poem "Obses- sion" places all of nature and the universe inside the psychology of man. Even the senses are projections. "Obsession" is the reading of "Correspondances" as hallucination. While "Correspondances" is en- tirely declarative, "Obsession" is almost entirely vocative. (Interestingly, de Man does not comment on another anomaly in the meaning of the word "comme"--the "comme" in "Obsession" that means "How! "-- which is surprising, since it enacts precisely what he calls "the tropo- logical transformation of analogy into apostrophe" [261]. ) Nature is addressed as a structure haunted by the subject's obsessions. Every- where he looks, his own thoughts look back. For psychoanalytically inclined readers, and indeed for de Man himself in an earlier essay,11 "Obsession" demystifies "Correspondances. " There is no profound unity in the world, but only, as Lacan would say, paranoid knowledge. 12
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But de Man sees the psychological gloss as another mystification, an- other anthropomorphism--the very anthropomorphic mystification that it is the duty of lyric, and of lyric pedagogy, to promote. "The lyric is not a genre, but one name among several to designate the defensive motion of understanding" (261). De Man concludes provocatively: "The resulting couple or pair of texts indeed becomes a model for the uneasy combination of funereal monumentality with paranoid fear that characterizes the hermeneutics and the pedagogy of lyric poetry" (259). What comes to be at stake, then, is lyric poetry itself as a poetry of the subject. By juxtaposing lyric and law in this essay, I am implicit- ly asking whether there is a relation between the "first person" (the grammatical "I") and the "constitutional person" (the subject of rights).
"Only a subject can understand a meaning," claims Lacan. "Con- versely, every phenomenon of meaning implies a subject. "13 What de Man seems to be arguing for here is the existence of a residue of lan- guage or rhetoric that exists neither inside nor outside the "phenome- non of meaning. " Does lyric poetry try to give a psychological gloss to disruptions that are purely grammatical? Are the periodizations in lit- erary history such as Parnassian and Romantic merely names for rhetorical structures that are not historical? For de Man, "Obsession" loses the radical disruption of "Correspondances" by making enu- meration into a symptom, which is more reassuring than endless repe- tition. It is as though de Man were saying that "Obsession," despite or rather because it is so psychologically bleak, falls back within the pleasure principle--that is, the psychological, the human--whereas "Correspondances," which seems so sunny, contains a disruption that goes beyond the pleasure principle. When de Man says that we can get "Obsession" from "Correspondances" but not the other way around, this is a way of repeating Freud's experience of the disruption of the pleasure principle in Beyond the Pleasure Principle, a study in which Freud grappled with the very limits of psychoanalysis. Freud noticed that there were experiences or facts that seemed to contradict his no- tion of the primacy of the pleasure principle in human life (negative pleasures, the repetition compulsion, the death instinct). As Derrida has shown, Freud kept bringing the beyond back within explainability, and the beyond of Freud's theory kept popping up elsewhere. 14 He could, in effect, get the pleasure principle to explain its beyond, but not anticipate it. The beyond of the pleasure principle could only exist as a disruption.
De Man makes the surprising claim that "Correspondances" is not
a lyric, but contains the entire possibility of lyric: "'Obsession,' a text of recollection and elegiac mourning, adds remembrance to the flat surface of time in 'Correspondances'--produces at once a hermeneu- tic, fallacious, lyrical reading of the unintelligible" (262). The act of making intelligible, whether in the lyric or in the terminology of liter- ary history, is for de Man at the end of the essay always an act of "re- sistance and nostalgia, at the furthest remove from the materiality of actual history. " This would mean that "actual history" is what escapes and resists intelligibility. Here is how de Man ends the essay:
If mourning is called a "chambre d'e? ternel deuil ou` vibrent de vieux ra^les," then this pathos of terror states in fact the desired consciousness of eternity and of temporal harmony as voice and as song. True "mourning" is less deluded. The most it can do is to allow for non- comprehension and enumerate non-anthropomorphic, non-elegiac, non-celebratory, non-lyrical, non-poetic, that is to say, prosaic, or, bet- ter, historical modes of language power. (262)
Earlier in the essay, de Man had said of Nietzsche's general analysis of truth that "truth is always at the very least dialectical, the negative knowledge of error" (242). In another essay, de Man speaks of "litera- ture as the place where this negative knowledge about the reliability of linguistic utterance is made available. "15 Negativity, then, is not an assertion of the negative, but a nonpositivity within the possibility of assertion. This final sentence is clearly a version of stating negative knowledge. But it is also a personification. "True 'mourning'" is said to be "less deluded. " Stressing the word it as the agent, he writes, "the most it can do is to allow for non-comprehension. " "True mourning" becomes the subject of this negative knowledge. The subjectivizations performed by lyric upon the unintelligible are here rejected, but by a per- sonification of mourning. Is mourning--or rather, "true 'mourning'"-- human or inhuman? Or is it what makes it impossible to close the gap between "man" and rhetoric? In other words, does this type of personi- fication presuppose knowledge of human essence, or does it merely confer a kind of rhetorical agency? Is it anthropomorphic? Is there a difference between personification and anthropomorphism? Is the text stating its knowledge as if it were a human, or is it just performing the inescapability of the structures it is casting off? Has de Man's conclu- sion really eliminated anthropomorphism and reduced it to the trope of personification, or is anthropomorphism inescapable in the notion of mourning? Is this what lyric poetry--so often structured around the
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relation between loss and rhetoric--must decide? Or finesse? The least we can say is that de Man has given the last word in his own text to a personification.
II
That which henceforth is to be "truth" is now fixed; that is to say, a uniformly valid and binding designation of things is invented and the legislature of lan- guage also gives the first laws of truth: since here, for the first time, originates the contrast between truth and falsity. The liar uses the valid designations, the words, in order to make the unreal appear as real, e. g. , he says, "I am rich," whereas the right designation of his state would be "poor. "
--Nietzsche, "Truth and Falsity in an Ultramoral Sense"
The case of Rowland v. California Men's Colony, Unit II Men's Advisory Council is based on a provision in the United States legal code permit- ting a "person" to appear in court in forma pauperis. The relevant leg- islation reads in part:
Any court of the United States may authorize the commencement, prose- cution or defense of any suit, action, or proceeding, civil or criminal, or appeal therein, without prepayment of fees and costs or security there- for, by a person who makes affidavit that he is unable to pay such costs or give security therefor. 16
In other words, a "person" may go to court without prepayment of fees if the "person" can demonstrate indigence. The question to be de- cided by the court is whether this provision applies to artificial persons such as corporations or councils, or whether it is meant to apply only to individuals. In the case that led to Rowland v. California Men's Colony, Unit II Men's Advisory Council, a council of prisonors in California has tried to bring suit against the correctional officers of the prison for the restoration of the practice of providing free cigarettes for indigent prisoners, which was discontinued. They try to sue in forma pauperis on the grounds that the warden forbids the council to hold funds of its own. The court finds that they have not sufficiently proven indigence. They are allowed to appeal in forma pauperis in order to en- able the court to decide whether the council, as an artificial legal per- son, is entitled to sue in forma pauperis. The appeals court decides that they are so entitled, but this conflicts with another court ruling in an- other case. The Supreme Court therefore gets to decide whether the provisions for proceeding in forma pauperis should apply only to natu-
ral persons, or also to legal persons such as associations and councils. The case is therefore about what a person is, and how you can tell the difference between a natural person and an artificial person.
Justice Souter's majority opinion begins with something that in many ways resembles de Man's stutter of infinite enumeration. In order to find out what the legal meaning of "person" is, Souter turns to what is called the "Dictionary Act. " The Dictionary Act gives instruc- tions about how to read acts of Congress. It states:
In determining the meaning of any Act of Congress, unless the context indicates otherwise, the word "person" includes corporations, compa- nies, associations, firms, partnerships, societies, and joint stock com- panies, as well as individuals. (1 United States Code 1)
Thus, the word person does include artificial entities unless the context indicates otherwise. Now the court asks, but what does "context" mean? It turns to Webster's New International Dictionary, where it notes that it means "the part or parts of a discourse preceding or fol- lowing a 'text' or passage or a word, or so intimately associated with it as to throw light on its meaning. " The context, then, is the surround- ing words of the act. Of course, Webster's does offer a second meaning for the word context, "associated surroundings, whether material or mental"--a reference not to the surrounding text but to the broader reality or intentionality--but Souter dismisses this by saying, "we doubt that the broader sense applies here. " Why? Because "if Congress had meant to point further afield, as to legislative history, for example, it would have been natural to use a more spacious phrase, like 'evi- dence of congressional intent,' in place of 'context. '"
The word natural, which is precisely at issue here, since we are try- ing to find out whether the statute applies only to natural persons, is here applied precisely to an artificial person, Congress, which is per- sonified as having natural intentionality. "If Congress had meant . . . " The Court's decision repeatedly relies on this type of personification: it is as though Souter has to treat Congress as an entity with intentions, even natural intentions, in order to say that Congress could not have meant to include artificial entities in its ruling. There is a personifica- tion of an artificial entity, Congress, embedded in the very project of interpreting how far the law will allow for artificial entities to be con- sidered persons.
Turning to the Dictionary Act for person and to Webster's diction- ary for context, Souter also notes that he has to define indicates. The
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difficulty of doing so pushes him into a volley of rhetorical flourishes: "A contrary 'indication' may raise a specter short of inanity, and with something less than syllogistic force. " "Indicates," it seems, means more than nonsense but less than logical necessity. In other words, the task of reading becomes an infinite regress of glossing terms that are themselves supposed to be determinants of meaning. De Man's linguis- tic stutter returns here as the repeated effort to throw language outside itself. We could read a text, this implies, if only we were sure of the meaning of the words context and indicate. But those are precisely the words that raise the question of meaning in its most general form-- they cannot be glossed with any finality because they name the process of glossing itself.
Souter's text, in fact, is most anthropomorphic at those points where the infinite regress of language is most threatening. Congress is endowed with "natural" intentionality in order to sweep away the abyss of reference. Souter's dismissal of the prisoners' association as an "amorphous legal creature" is the counterpart to the need to reinforce the anthropomorphizability of the artificial legal creature, Congress. 17
Souter's opinion proceeds to detail the ways in which he thinks the in forma pauperis ruling should only apply to natural persons. If an af- fidavit alleging poverty is required for a person to proceed in forma pauperis, then can an artificial entity plead poverty? Souter again turns to Webster's dictionary to find that poverty is a human condition, to be "wanting in material riches or goods; lacking in the comforts of life; needy. " Souter also refers to a previous ruling, which holds that pover- ty involves being unable to provide for the "necessities of life. " It is as though only natural persons can have "life," and that life is defined as the capacity to lack necessities and comforts. "Artificial entities may be insolvent," writes Souter, "but they are not well spoken of as 'poor. '" An artificial entity cannot lack the necessities and comforts of life. Only life can lack. The experience of lack differentiates natural persons from artificial persons. To lack is to be human. In a sense, we have returned to de Man's question about mourning. Is lack human, or just a struc- ture? Whatever the case, the Court holds that associations cannot be considered persons for the purpose of the in forma pauperis procedure.
The majority was only five to four, however. In a dissenting opinion, written by Clarence Thomas, it is argued that there is no reason to re- strict the broad definition of "person" to natural persons in this case. Thomas quotes the Court's view of "poverty" as an exclusively "human condition," and comments:
I am not so sure. "Poverty" may well be a human condition in its "pri- mary sense," but I doubt that using the word in connection with an arti- ficial entity departs in any significant way from settled principles of English usage. . . . Congress itself has used the word "poor" to describe entities other than natural persons, referring in at least two provisions of the United States Code to the world's "Poorest countries"--a term that is used as a synonym for the least developed of the so-called "devel- oping" countries.
Souter has glossed the word poor as though speakers of English could only use it literally. Thomas responds by including the figurative use of poor as included within normal usage. The boundaries between natu- ral persons and artificial persons cannot be determined by usage, be- cause those boundaries have always already been blurred. In treating Congress as an entity with natural intentions, indeed, Souter has al- ready shown how "natural" the artificial can be.
At another point, Thomas takes issue with Souter's discussion of a case in which an association or corporation is considered a person de- spite strong contextual indicators to the contrary. In the case of Wilson v. Omaha Indian Tribe, 442 U. S.
653, 666 (1979), it was decided that "white person" could include corporations because the "larger con- text" and "purpose" of the law was to protect Indians against non- Indian squatters, and would be frustrated if a "white person" could simply incorporate in order to escape the provision of the law. Souter admits that "because a wholly legal creature has no color, and belongs to no race, the use of the adjective 'white' to describe a 'person' is one of the strongest contextual indicators imaginable that 'person' covers only individuals. " Justice Thomas argues that if the Court "was cor- rect in holding that the statutory term 'white person' includes a corpo- ration (because the 'context' does not 'indicate otherwise')--the con- clusion that an association is a 'person' for in forma pauperis purposes is inescapable. " Perhaps another inescapable conclusion is that despite its apparent reference to the physical body, the phrase "white person" is the name, not of a natural, but of a corporate person.
Justice Thomas refutes the reasons Souter has given for finding that artificial entities are excluded from the in forma pauperis provision, noting that there may be sound policy reasons for wanting to exclude them, but that the law as written cannot be construed to have done so. The Court's job, he writes, is not to make policy but to interpret a statute. "Congress has created a rule of statutory construction (an
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association is a 'person') and an exception to that rule (an association is not a 'person' if the 'context indicates otherwise'), but the Court has permitted the exception to devour the rule [a nice personification]" (treating the rule as if artificial entities were excluded rather than in- cluded unless the context indicates otherwise). "Whatever 'unless the context indicates otherwise' means," writes Thomas, "it cannot mean 'unless there are sound policy reasons for concluding otherwise. '"
Permitting artificial entities to proceed in forma pauperis may be unwise, and it may be an inefficient use of the government's limited re- sources, but I see nothing in the text of the in forma pauperis statute indicating that Congress has chosen to exclude such entities from the benefits of that law.
Thus, Thomas's two conservative instincts are at war with each other: he would like the government not to spend its money, but he would also like to stick to the letter of the law.
The question of what counts as a juridical person has, in fact, been modified over time in the legal code. It was in 1871 (significantly, per- haps, at the beginning of the end of post-Civil War Reconstruction) that the so-called Dictionary Act was first passed by Congress, in which the word Person "may extend and be applied to bodies politic and corporate. " More recently, the question of fetal personhood has been debated, not only in the Roe v. Wade decision, where it was de- cided that a fetus was not a legal person, but also in Weaks v. Mounter, 88 Nev. 118, where it was decided that a fetus was a person who could sue for intrauterine injuries, but only after birth. Recently, the question of granting patents for forms of life such as oil-slick-eating bacteria or genetically altered mice has raised the question of whether a hybrid be- tween humans and close animal relatives can be patented. And also, of course, the question of the ethics and legality of cloning humans has been raised. The law has reached another crisis about the definition of "person. " In an article on constitutional personhood, Michael Rivard writes:
Current law allows patents for genetically-engineered animals but not for human beings. Humans are not patentable subject matter because patents are property rights, and the Thirteenth Amendment forbids any grant of property rights in a human being. Nevertheless, this exclusion for humans will prove impossible to maintain: within ten to thirty years, or perhaps sooner, advances in genetic engineering technology should allow scientists to intermingle the genetic material of humans and ani-
mals to produce human-animal hybrids. . . . It may soon be possible to patent--and to enslave--human-animal hybrids who think and feel like humans, but who lack constitutional protection under the Thirteenth Amendment. 18
The Thirteenth Amendment is the amendment that abolishes slavery. The constitutional protection against slavery operates as a constraint on the patent office, but it does so in a paradoxical way. The fear of re- instituting something like slavery, or property in humans, is a reaction to, but also a sign of, what must be an ongoing research goal to come as close as possible to creating the ownable, enslavable human. 19
Constitutional personhood has in fact often been defined in prox- imity to slavery. The contradiction between equal rights and chattel slavery led from the beginning to verbal gymnastics, even in the draft- ing of the Constitution itself. By not using the word slavery in the Constitution, and by revising the text of the original fugitive slave clause to refer to the legality of slavery only on the level of the states rather than of the federal government, the framers built a double inten- tionality into the very foundation of their law. Douglas Fehrenbacher, studying the egregious understanding of original intent later employed by the Supreme Court in the case of Dred Scott v. Sanford, writes of the Constitution: "It is as though the framers were half-consciously trying to frame two constitutions, one for their own time and the other for the ages, with slavery viewed bifocally--that is, plainly visible at their feet, but disappearing when they lifted their eyes. "20 A written text of law can thus contain a double intention, the trace of a compro- mise between differing opinions. No wonder interpreting the law's in- tention is so complicated. That intention can always already be mul- tiple. The distinction Justice Thomas made between interpreting the law and making policy cannot hold if the law's ambiguity allows for the possibility that the policy it governs will change.
III
The "inhuman" is not some kind of mystery, or some kind of secret; the in- human is: linguistic structures, the play of linguistic tensions, linguistic events that occur, possibilities which are inherent in language--independently of any intent or any drive or any wish or any desire we might have. . . . If one speaks of the inhuman, the fundamental non-human character of language, one also speaks of the fundamental non-definition of the human as such.
--Paul de Man, "Benjamin's 'The Task of the Translator'"
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Only smoking distinguishes humans from the rest of the animals.
--Anonymous (quoted in Richard Klein, Cigarettes Are Sublime)
The case of Rowland v. California Men's Colony, Unit II Men's Advisory Council was ostensibly about whether a council of inmates could sue prison officials in forma pauperis to get their cigarettes back. The de- tails of the case seemed irrelevant to the question of whether an artifi- cial person has the right to sue in forma pauperis. Yet perhaps some of those details deserve note. Is it relevant that the suit to decide this ques- tion is brought by a council of inmates? The phenomenon of the in- mate civil suit has grown to the point where the case law may very well be transformed by it. In a 1995 study of inmate suits in California, it was reported that "For the last fourteen years at least, the federal courts have faced a growing caseload and workload challenge posed by inmate cases. . . . By 1992, these filings numbered nearly 30,000, and constituted 13% of the courts' total civil case filings nation- wide. "21 The majority of these suits are filed in forma pauperis. 22 The Supreme Court's decision may well have been affected by what Clarence Thomas calls "policy decisions. "
If prisoners are affecting the nature of civil proceedings, they are also, at least figuratively, affecting theoretical discussions about the na- ture of rational choice and the evolution of cooperation. The celebrat- ed "Prisoner's Dilemma" has been central to questions of self-interest and social goods since it was introduced by Albert Tucker in 1950. Max Black has even entitled his discussion of the issues raised "The 'Prisoner's Dilemma' and the Limits of Rationality. "23 Why is it that the theoretical study of rational choice has recourse to "man" con- ceived as a prisoner? Does this have anything to do with the poets' ten- dency to see the sonnet form as a prison?
And is it by chance that Rowland v. California Men's Colony, Unit II Men's Advisory Council is about cigarettes? On the one hand, it seems paradoxical that the council has to demonstrate its indigence in order to pursue its suit against the prison directors for depriving the prisoners of access to cigarettes, which in prisons function as a form of currency. On the other hand, it seems fitting that the personhood of the association is the counterpart to the humanity of the inmates, which, as common wisdom (quoted above, second epigraph) would have it, is demonstrated by the act of smoking. The prisoners would thus, in a very attenuated way, be suing for their humanity. As Richard Klein has wittily shown, smoking serves no function other than to enact a struc-
ture of desire--of human desire for self-transcendence, for repetition, for bodily experience corresponding to something other than the "ne- cessities of life" required for existence alone: in short, desire for the sublime. 24 Far from being what defines natural personhood, then, need for the "necessities of life" alone is precisely what cannot define the human.
In the article cited earlier, Rivard declares that "corporations would be presumed constitutional nonpersons," especially for liberty-related rights, unless the corporation could rebut its nonperson status by showing specific natural persons "who would be affected if the corpo- ration were denied these rights. "25 This is the opposite of the Dictionary Act, which considers a corporation a person "unless the context in- dicates otherwise. " Rivard's article is arguing for the rights of new bio- logical species who can pass the "self-awareness test" (which, in a surpisingly Lacanian move derived from Michael Dennett, he defines as wanting to be different from what one is), and he claims that corpo- rations, by their nature, do not pass this test.
But the question of the nature of corporations as persons has never been a simple one, as Rivard admits. In an article titled "The Personifi- cation of the Business Corporation in American Law" (University of Chicago Law Review 54 [fall 1987]: 1441), Gregory A. Marks out- lines in detail the history of corporate personhood. The relation be- tween corporations and the natural persons who compose them has grown more complicated over time, but in most discussions of the mat- ter, it is the "natural" person that functions as the known quantity, and the "artificial" who is either just an "aggregate" of natural persons, or a fiction created by the state, or a mere metaphor, or actually resembles (is like, to return to the Baudelairean word) a natural person in that it has a "will" of its own. Such a corporate will is a form of agency sepa- rate from that of the natural corporators, who exist behind the "veil" of the corporation. Much of Marks's article concerns the exact rhetori- cal valence of this personification:
American law has always recognized that people's activities could be for- mally organized and that the resulting organizations could be dealt with as units. Personification, however, is important because it became far more than a quaint device making it possible for the law to deal with or- ganized business entities. In American legal and economic history, personi- fication has been vital because it (1) implies a single and unitary source of control over the collective property of the corporation's members,
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(2) defines, encourages, and legitimates the corporation as an autono- mous, creative, self-directed economic being, and (3) captures rights, ulti- mately even constitutional rights, for corporations thereby giving corpo- rate property unprecedented protection from the state. (1443)
Marks takes seriously the role of language in the evolving history of the corporation. Philosophers and legislators have gone to great lengths to minimize the rhetorical damage, to eliminate personifi- cation as far as possible, but he asserts that it is not just a figure of speech to speak of a corporation's "mind," or even its "life. " "Prac- tical experience, not just anthropomorphism, fixed the corporate mind in the management hierarchy" (1475). The corporation resembled a human being in its capacity to "take resolves in the midst of conflict- ing motives," to "will change. " Yet the analogy is not perfect. The cor- poration, for example, unlike its corporators, is potentially immortal. The effect of personification appears to derive its rhetorical force from the ways in which the corporation resembles a natural person, yet the corporation's immortality in no way diminishes its personification. When Marks says that it is "not just anthropomorphism" that under- pins the agency of the corporation, he still implies that we can know what anthropomorphism is. But his final sentence stands this presup- position on its head. Far from claiming that a corporation's character- istics are derived from a knowable human essence, Marks suggests that what have been claimed to be the essential characteristics of man (es- pecially "economic man") have in fact been borrowed from the nature of the corporation:
Personification with its roots in historic theological disputes and mod- ern business necessity, had proved to be a potent symbol to legitimate the autonomous business corporation and its management. Private property rights had been transferred to associations, associations had themselves become politically legitimate, and the combination had helped foster modern political economy. The corporation, once the de- rivative tool of the state, had become its rival, and the successes of the autonomous corporate management turned the basis for belief in an in- dividualist conception of property on its head. The protests of modern legists notwithstanding, the business corporation had become the quint- essential economic man. (1482-83)
Theories of rationality, naturalness, and the "good," presumed to be grounded in the nature of "man," may in reality be taking their no-
tions of human essence not from "natural man" but from business corporations.
Ambivalence about personification, especially the personification of abstractions, has in fact permeated not only legal but also literary his- tory. Nervousness about the agency of the personified corporation echoes the nervousness Enlightenment writers felt about the personifi- cations dreamed up by the poets. As Steven Knapp puts it in his book Personification and the Sublime:
Allegorical personification--the endowing of metaphors with the agency of literal persons--was only the most obvious and extravagant instance of what Enlightenment writers perceived, with a mixture of ad- miration and uneasiness, as the unique ability of poetic genius to give the force of literal reality to figurative "inventions. " More important than the incongruous presence of such agents was their contagious ef- fect on the ostensibly literal agents with which they interacted. 26
The uncanniness of the personification, then, was derived from its way of putting in question what the "natural" or the "literal" might be.
We have finally come back to the question of whether there is a dif- ference between anthropomorphism and personification, which arose at the end of the discussion of the essay by Paul de Man. It can now be seen that everything hangs on this question. Not only does anthro- pomorphism depend on the givenness of the essence of the human and personification does not, but the mingling of personifications on the same footing as "real" agents threatens to make the lack of certainty about what humanness is come to consciousness. Perhaps the loss of unconsciousness about the lack of humanness is what de Man was calling "true 'mourning. '" Perhaps the "fallacious lyrical reading of the unintelligible" was exactly what legislators count on lyric poetry to provide: the assumption that the human has been or can be defined so that it can then be presupposed without the question of its defini- tion's being raised as a question--legal or otherwise. Thus the poets would truly be, as Shelley claimed, the "unacknowledged legislators of the world," not because they covertly determine policy, but because it is somehow necessary and useful that there be a powerful, presup- posable, unacknowledgment. But the very rhetorical sleight of hand that would instate such an unacknowledgment is indistinguishable from the rhetorical structure that would empty it. Lyric and law are two of the most powerful discourses that exist along the fault line of this question.
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NOTES
1. I am thinking of Richard Posner's Law and Literature (Cambridge: Harvard University Press, 1988), Richard Weisberg's The Failure of the Word (New Haven: Yale University Press, 1984), and Peter Brooks, Troubling Confessions (Chicago: University of Chicago Press, 2000). But for a legal approach that does address poetry, see the interesting discussion of Wallace Stevens by Thomas Grey and Margaret Jane Radin in the Yale Journal of Law & The Humanities 2:2 (summer 1990), as well as the more extended treatment of Wallace Stevens in Thomas Grey, The Wallace Stevens Case: Law and the Practice of Poetry (Cambridge: Harvard University Press, 1991).
2. William Wordsworth's sonnet, "Nuns Fret Not at Their Convent's Narrow Room," contains the lines, "In truth the prison, into which we doom / Ourselves, no prison is: and hence for me, / In sundry moods, 'twas pastime to be bound / Within the Sonnet's scanty plot of ground" (Selected Poetry and Prose of Words- worth [New York: Signet, 1970], 169).
3. John Keats's sonnet on the sonnet begins, "If by dull rhymes our English must be chained, / And, like Andromeda, the sonnet sweet / Fettered . . . " (The Selected Poetry of Keats [New York: Signet, 1966], 264).
4. One of several poems by Baudelaire titled Spleen describes a mood pro- duced by or analogized to a rainy day: "Quand la pluie e? talant ses immenses traine? es / D'une vaste prison imite les barreaux . . . " (Baudelaire, OEuvres com- ple`tes, vol. 1 [Paris: Ple? iade, 1975], 75).
5. For a suggestive discussion of what it means for a text to obey the law of genre, see Jacques Derrida, "The Law of Genre," in Acts of Literature, ed. Derek Attridge (New York: Routledge, 1992).
6. Paul de Man, "Anthropomorphism and Trope in the Lyric," in The Rhetoric of Romanticism (New York: Columbia University Press, 1984). Page numbers in parentheses refer to this essay.
7. United States Law Week 61:25 (January 12, 1993). Page numbers in paren- theses refer to this text.
8. This allusion to Keats's "Ode on a Grecian Urn" stands in for the premise of the compatibility of literary aesthetics with linguistic structures, and of linguistic structures with perceptual or intuitive knowledge, that de Man is often at pains to contest. See his remarks on the pedagogical model of the trivium in the titular essay of The Resistance to Theory (Minneapolis: University of Minnesota Press, 1986).
9. Friedrich Nietzsche, "Truth and Falsity in an Ultramoral Sense," in Critical Theory Since Plato, ed. Hazard Adams (Fort Worth: Harcourt Brace Jovanovich, 1992), 634-39. If the Keats poem stands as the claim that aesthetic and epistemo- logical structures are compatible, Nietzsche's text, for de Man, stands as a parody of that claim.
10. The translations are mine, for the purpose of bringing out those aspects of the poems that are relevant to my discussion.
11. "Allegory and Irony in Baudelaire," in Romanticism and Contemporary Criticism (Baltimore: Johns Hopkins University Press, 1993). This essay is part of the Gauss Seminar given by de Man in 1967.
12. Jacques Lacan, "Aggressivity in Psychoanalysis," in E? crits: A Selection, trans. Alan Sheridan (New York: W. W. Norton, 1977), 17: "What I have called paranoic
knowledge is shown, therefore, to correspond in its more or less archaic forms to certain critical moments that mark the history of man's mental genesis, each repre- senting a stage in objectifying identification. "
13. Ibid. , 9.
14. Jacques Derrida, "Freud's Legacy," in The Postcard, trans. Alan Bass (Chicago: University of Chicago Press, 1987).
15. De Man, "The Resistance to Theory," 10.
16. United States Code (1994 edition), vol. 15, 438.
17. In a response to the present paper given at the Yale Law School, Shoshana
Felman made the brilliant suggestion that Souter would have wanted to rewrite Baudelaire's "Correspondances" as: "Le Congre`s est un temple ou` de vivants pil- liers laissent parfois sortir de confuses paroles . . . " The neoclassical, Parnassian ar- chitecture of official Washington, D. C. , and the common metaphorical expression "pillars of the community," add piquancy to this suggestion.
18. Michael D. Rivard, "Toward a General Theory of Constitutional Person- hood: A Theory of Constitutional Personhood for Transgenic Humanoid Species," UCLA Law Review 39: 5 (June 1992): 1428-29.
19. See A. Leon Higginbotham Jr. and Barbara Kopytoff, "Property First, Humanity Second: The Recognition of the Slave's Human Nature in Virginia Civil Law," Ohio State Law Journal 50:3 (June 1989): "The humanity of the slave, re- quiring that he be treated with the care due other humans and not like other forms of property, became part of the owner's property rights" (520).
20. Douglas E. Fehrenbacher, Slavery, Law, and Politics: The Dred Scott Case in Historical Perspective (Oxford: Oxford University Press, 1981), 15.
21. Kim Mueller, "Inmates' Civil Rights Cases and the Federal Courts: Insights Derived from a Field Research Project in the Eastern District of California," Creighton Law Review 1228 (June 1995): 1258-59. In the Eastern District of Cali- fornia, inmates' civil rights actions constituted nearly 30 percent of the case filings. (California Men's Colony is not in the Eastern District; it is in San Luis Obispo. )
22. Ibid. , 1276 and 1281.
23. Max Black, Perplexities (Ithaca, N. Y. : Cornell University Press, 1990). See also Robert Axelrod, The Evolution of Cooperation (New York: Basic Books, 1984).
24. Richard Klein, Cigarettes Are Sublime (Durham, N. C. : Duke University Press, 1993). Klein notes, incidentally, that Baudelaire is one of the first French writers to use the word cigarette in print (in his "Salons de 1848," 8).
25. Rivard, "Toward a General Theory of Constitutional Personhood," 1501-2.
26.
Yet the examples of proper names de Man gives are surprising: Narcissus and Daphne. Nietzsche's triumvirate of metaphor, metonymy, and anthropomorphism then functions like the plot of an Ovidian metamorphosis: from a mythological world in which man and nature appear to be in metaphorical and metonymic harmony, there occurs a crisis wherein, by a process of seamless transformation, a break never- theless occurs in the system of correspondences, leaving a residue that escapes and remains: the proper name. De Man's discussion of Baudelaire's sonnets will in fact be haunted by Ovidian presences: Echo is lurking behind every mention of Narcissus, while one of the re- curring cruxes is whether there is a human substance in a tree. It is per- haps not an accident that the figures that occupy the margins of de Man's discussion are female. If de Man's enduring question is whether
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linguistic structures and epistemological claims can be presumed to be compatible, the question of gender cannot be located exclusively either in language (where the gender of pronouns, and often of nouns, is in- herent in each language) or in the world. By extension, the present dis- cussion of the nature of "man" cannot fail to be haunted by the ques- tion of gender.
The term anthropomorphism in Nietzsche's list thus indicates that a given is being forced into what otherwise would function as a pure structure of relation. In addition, Nietzsche calls truth an army of tropes, thus introducing more explicitly the notion of power, force, or violence. This is not a notion that can fit into the oppositions between epistemology and rhetoric, but rather disrupts the system. In the text of the Supreme Court decision that I will discuss in a moment, such a disruption is introduced when the opposition on which the case is based, the opposition between natural person and artificial entity, opens out onto the question of policy. There, too, it is a question of truth and power, of the separation of the constative--what does the law say? from the performative--what does it do?
The bulk of de Man's essay is devoted to a reading of two sonnets by Baudelaire: "Correspondances" and "Obsession," which I here reproduce. 10
Correspondances
La Nature est un temple ou` de vivants piliers Laissent parfois sortir de confuses paroles; L'homme y passe a` travers des fore^ts de symboles Qui l'observent avec des regards familiers.
Comme de longs e? chos qui de loin se confondent Dans une te? ne? breuse et profonde unite? ,
Vaste comme la nuit et comme la clarte? ,
Les parfums, les couleurs et les sons se re? pondent.
Il est des parfums frais comme des chairs d'enfants, Doux comme les hautbois, verts comme les prairies, --Et d'autres, corrompus, riches et triomphants,
Ayant l'expansion des choses infinies,
Comme l'ambre, le musc, le benjoin et l'encens, Qui chantent les transports de l'esprit et des sens.
[Correspondences
Nature is a temple, where the living pillars Sometimes utter indistinguishable words; Man passes through these forests of symbols Which regard him with familiar looks.
Like long echoes that blend in the distance Into a unity obscure and profound,
Vast as the night and as the light,
The perfumes, colors, and sounds correspond.
There are some perfumes fresh as a baby's skin, Mellow as oboes, verdant as prairies,
--And others, corrupt, rich, and triumphant,
With all the expansiveness of infinite things, Like ambergris, musk, benjamin, incense, That sing the transports of spirit and sense. ]
Obsession
Grands bois, vous m'effrayez comme des cathe? drales; Vous hurlez comme l'orgue; et dans nos coeurs maudits, Chambres d'e? ternel deuil ou` vibrent de vieux ra^les, Re? pondent les e? chos de vos De profundis.
Je te hais, Oce? an! tes bonds et tes tumultes,
Mon esprit les retrouve en lui; ce rire amer
De l'homme vaincu, plein de sanglots et d'insultes, Je l'entends dans le rire e? norme de la mer.
Comme tu me plairais, o^ nuit! sans ces e? toiles Dont la lumie`re parle un langage connu!
Car je cherche le vide, et le noir, et le nu!
Mais les te? ne`bres sont elles-me^mes des toiles Ou` vivent, jaillissant de mon oeil par milliers, Des e^tres disparus aux regards familiers.
[Obsession
You terrify me, forests, like cathedrals;
You roar like organs; and in our cursed hearts, Chambers of mourning that quiver with our dying, Your De profundis echoes in response.
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How I hate you, Ocean! your tumultuous tide
Is flowing in my spirit; this bitter laughter
Of vanquished man, strangled with sobs and insults, I hear it in the heaving laughter of the sea.
O night, how I would love you without stars, Whose light can only speak the words I know! For I seek the void, and the black, and the bare!
But the shadows are themselves a screen
That gathers from my eyes the ones I've lost,
A thousand living things with their familiar looks. ]
Both poems end up raising "man" as a question--"Correspondances" looks upon "man" as if from a great distance, as if from the outside; "Obsession" says "I," but then identifies with "vanquished man" whose laugh is echoed in the sea.
"Correspondances" is probably the most canonical of Baudelaire's poems in that it has justified the largest number of general statements about Baudelaire's place in literary history. The possibility of literary history ends up, in some ways, being the real topic of de Man's essay. De Man will claim that the use of this sonnet to anchor the history of "the symbolist movement" is based on a reading that ignores a crucial element in the poem, an element that, if taken seriously, will not allow for the edifice of literary history to be built upon it.
"Correspondances" sets up a series of analogies between nature, man, symbols, and metaphysical unity, and among manifestations of the different physical senses, all through the word "comme" ("like"). A traditional reading of the poem would say that the lateral analogies among the senses (perfumes fresh as a baby's skin, mellow as oboes, green as prairies) are signs that there exists an analogy between man and nature, and man and the spiritual realm.
De Man focuses on this analogy-making word, "comme," and notes an anomaly in the final instance. Whereas the first uses of "comme" in the poem equate different things into likeness, the last one just intro- duces a list of examples--there are perfumes that are rich and corrupt, like musk, ambergris, and frankincense. This is thus a tautology-- there are perfumes like . . . perfumes. De Man calls this a stutter. He writes, "Comme then means as much as 'such as, for example'" (249). "Ce Comme n'est pas un comme comme les autres" (249), writes de Man in a sudden access of French. His sentence performs the stutter he
attributes to the enumeration of the perfumes. Listing examples would seem to be quite different from proposing analogies. If the burden of the analogies in "Correspondances" is to convince us that the meta- phorical similarities among the senses point to a higher spiritual unity, then sheer enumeration would disrupt that claim.
There is another, more debatable, suggestion in de Man's reading that attempts to disrupt the anthropomorphism of the forest of sym- bols. De Man suggests that the trees are a mere metaphor for a city crowd in the first stanza. If the living pillars with their familiar glances are metaphorically a city crowd, then the anthropomorphism of nature is lost. Man is surrounded by tree-like men, not man-like trees. It is not "man" whose attributes are taken on by all of nature, but merely a crowd of men being compared to trees and pillars. De Man notes that everyone resists this reading--as do I--but the intensity with which it is rejected does make visible the seduction of the system that puts nature, god, and man into a perfect unity through the symbol, which is what has made the poem so important for literary history. Similarly, if the last "comme" is sheer enumeration rather than similarity, the transports in the last line of the poem would not get us into a transcen- dent realm, but would be like getting stuck on the French transporta- tion system (which, as de Man points out, uses the word "correspon- dance" for changes of station within the system). All these tropes would not carry us away into the spiritual realm, but would be an infi- nite series of substitutions. The echoes would remain echoes and not merge into a profound unity.
If "Correspondances" is said to place man in the center of a uni- verse that reflects him in harmony with all of nature, the poem "Obses- sion" places all of nature and the universe inside the psychology of man. Even the senses are projections. "Obsession" is the reading of "Correspondances" as hallucination. While "Correspondances" is en- tirely declarative, "Obsession" is almost entirely vocative. (Interestingly, de Man does not comment on another anomaly in the meaning of the word "comme"--the "comme" in "Obsession" that means "How! "-- which is surprising, since it enacts precisely what he calls "the tropo- logical transformation of analogy into apostrophe" [261]. ) Nature is addressed as a structure haunted by the subject's obsessions. Every- where he looks, his own thoughts look back. For psychoanalytically inclined readers, and indeed for de Man himself in an earlier essay,11 "Obsession" demystifies "Correspondances. " There is no profound unity in the world, but only, as Lacan would say, paranoid knowledge. 12
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But de Man sees the psychological gloss as another mystification, an- other anthropomorphism--the very anthropomorphic mystification that it is the duty of lyric, and of lyric pedagogy, to promote. "The lyric is not a genre, but one name among several to designate the defensive motion of understanding" (261). De Man concludes provocatively: "The resulting couple or pair of texts indeed becomes a model for the uneasy combination of funereal monumentality with paranoid fear that characterizes the hermeneutics and the pedagogy of lyric poetry" (259). What comes to be at stake, then, is lyric poetry itself as a poetry of the subject. By juxtaposing lyric and law in this essay, I am implicit- ly asking whether there is a relation between the "first person" (the grammatical "I") and the "constitutional person" (the subject of rights).
"Only a subject can understand a meaning," claims Lacan. "Con- versely, every phenomenon of meaning implies a subject. "13 What de Man seems to be arguing for here is the existence of a residue of lan- guage or rhetoric that exists neither inside nor outside the "phenome- non of meaning. " Does lyric poetry try to give a psychological gloss to disruptions that are purely grammatical? Are the periodizations in lit- erary history such as Parnassian and Romantic merely names for rhetorical structures that are not historical? For de Man, "Obsession" loses the radical disruption of "Correspondances" by making enu- meration into a symptom, which is more reassuring than endless repe- tition. It is as though de Man were saying that "Obsession," despite or rather because it is so psychologically bleak, falls back within the pleasure principle--that is, the psychological, the human--whereas "Correspondances," which seems so sunny, contains a disruption that goes beyond the pleasure principle. When de Man says that we can get "Obsession" from "Correspondances" but not the other way around, this is a way of repeating Freud's experience of the disruption of the pleasure principle in Beyond the Pleasure Principle, a study in which Freud grappled with the very limits of psychoanalysis. Freud noticed that there were experiences or facts that seemed to contradict his no- tion of the primacy of the pleasure principle in human life (negative pleasures, the repetition compulsion, the death instinct). As Derrida has shown, Freud kept bringing the beyond back within explainability, and the beyond of Freud's theory kept popping up elsewhere. 14 He could, in effect, get the pleasure principle to explain its beyond, but not anticipate it. The beyond of the pleasure principle could only exist as a disruption.
De Man makes the surprising claim that "Correspondances" is not
a lyric, but contains the entire possibility of lyric: "'Obsession,' a text of recollection and elegiac mourning, adds remembrance to the flat surface of time in 'Correspondances'--produces at once a hermeneu- tic, fallacious, lyrical reading of the unintelligible" (262). The act of making intelligible, whether in the lyric or in the terminology of liter- ary history, is for de Man at the end of the essay always an act of "re- sistance and nostalgia, at the furthest remove from the materiality of actual history. " This would mean that "actual history" is what escapes and resists intelligibility. Here is how de Man ends the essay:
If mourning is called a "chambre d'e? ternel deuil ou` vibrent de vieux ra^les," then this pathos of terror states in fact the desired consciousness of eternity and of temporal harmony as voice and as song. True "mourning" is less deluded. The most it can do is to allow for non- comprehension and enumerate non-anthropomorphic, non-elegiac, non-celebratory, non-lyrical, non-poetic, that is to say, prosaic, or, bet- ter, historical modes of language power. (262)
Earlier in the essay, de Man had said of Nietzsche's general analysis of truth that "truth is always at the very least dialectical, the negative knowledge of error" (242). In another essay, de Man speaks of "litera- ture as the place where this negative knowledge about the reliability of linguistic utterance is made available. "15 Negativity, then, is not an assertion of the negative, but a nonpositivity within the possibility of assertion. This final sentence is clearly a version of stating negative knowledge. But it is also a personification. "True 'mourning'" is said to be "less deluded. " Stressing the word it as the agent, he writes, "the most it can do is to allow for non-comprehension. " "True mourning" becomes the subject of this negative knowledge. The subjectivizations performed by lyric upon the unintelligible are here rejected, but by a per- sonification of mourning. Is mourning--or rather, "true 'mourning'"-- human or inhuman? Or is it what makes it impossible to close the gap between "man" and rhetoric? In other words, does this type of personi- fication presuppose knowledge of human essence, or does it merely confer a kind of rhetorical agency? Is it anthropomorphic? Is there a difference between personification and anthropomorphism? Is the text stating its knowledge as if it were a human, or is it just performing the inescapability of the structures it is casting off? Has de Man's conclu- sion really eliminated anthropomorphism and reduced it to the trope of personification, or is anthropomorphism inescapable in the notion of mourning? Is this what lyric poetry--so often structured around the
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relation between loss and rhetoric--must decide? Or finesse? The least we can say is that de Man has given the last word in his own text to a personification.
II
That which henceforth is to be "truth" is now fixed; that is to say, a uniformly valid and binding designation of things is invented and the legislature of lan- guage also gives the first laws of truth: since here, for the first time, originates the contrast between truth and falsity. The liar uses the valid designations, the words, in order to make the unreal appear as real, e. g. , he says, "I am rich," whereas the right designation of his state would be "poor. "
--Nietzsche, "Truth and Falsity in an Ultramoral Sense"
The case of Rowland v. California Men's Colony, Unit II Men's Advisory Council is based on a provision in the United States legal code permit- ting a "person" to appear in court in forma pauperis. The relevant leg- islation reads in part:
Any court of the United States may authorize the commencement, prose- cution or defense of any suit, action, or proceeding, civil or criminal, or appeal therein, without prepayment of fees and costs or security there- for, by a person who makes affidavit that he is unable to pay such costs or give security therefor. 16
In other words, a "person" may go to court without prepayment of fees if the "person" can demonstrate indigence. The question to be de- cided by the court is whether this provision applies to artificial persons such as corporations or councils, or whether it is meant to apply only to individuals. In the case that led to Rowland v. California Men's Colony, Unit II Men's Advisory Council, a council of prisonors in California has tried to bring suit against the correctional officers of the prison for the restoration of the practice of providing free cigarettes for indigent prisoners, which was discontinued. They try to sue in forma pauperis on the grounds that the warden forbids the council to hold funds of its own. The court finds that they have not sufficiently proven indigence. They are allowed to appeal in forma pauperis in order to en- able the court to decide whether the council, as an artificial legal per- son, is entitled to sue in forma pauperis. The appeals court decides that they are so entitled, but this conflicts with another court ruling in an- other case. The Supreme Court therefore gets to decide whether the provisions for proceeding in forma pauperis should apply only to natu-
ral persons, or also to legal persons such as associations and councils. The case is therefore about what a person is, and how you can tell the difference between a natural person and an artificial person.
Justice Souter's majority opinion begins with something that in many ways resembles de Man's stutter of infinite enumeration. In order to find out what the legal meaning of "person" is, Souter turns to what is called the "Dictionary Act. " The Dictionary Act gives instruc- tions about how to read acts of Congress. It states:
In determining the meaning of any Act of Congress, unless the context indicates otherwise, the word "person" includes corporations, compa- nies, associations, firms, partnerships, societies, and joint stock com- panies, as well as individuals. (1 United States Code 1)
Thus, the word person does include artificial entities unless the context indicates otherwise. Now the court asks, but what does "context" mean? It turns to Webster's New International Dictionary, where it notes that it means "the part or parts of a discourse preceding or fol- lowing a 'text' or passage or a word, or so intimately associated with it as to throw light on its meaning. " The context, then, is the surround- ing words of the act. Of course, Webster's does offer a second meaning for the word context, "associated surroundings, whether material or mental"--a reference not to the surrounding text but to the broader reality or intentionality--but Souter dismisses this by saying, "we doubt that the broader sense applies here. " Why? Because "if Congress had meant to point further afield, as to legislative history, for example, it would have been natural to use a more spacious phrase, like 'evi- dence of congressional intent,' in place of 'context. '"
The word natural, which is precisely at issue here, since we are try- ing to find out whether the statute applies only to natural persons, is here applied precisely to an artificial person, Congress, which is per- sonified as having natural intentionality. "If Congress had meant . . . " The Court's decision repeatedly relies on this type of personification: it is as though Souter has to treat Congress as an entity with intentions, even natural intentions, in order to say that Congress could not have meant to include artificial entities in its ruling. There is a personifica- tion of an artificial entity, Congress, embedded in the very project of interpreting how far the law will allow for artificial entities to be con- sidered persons.
Turning to the Dictionary Act for person and to Webster's diction- ary for context, Souter also notes that he has to define indicates. The
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difficulty of doing so pushes him into a volley of rhetorical flourishes: "A contrary 'indication' may raise a specter short of inanity, and with something less than syllogistic force. " "Indicates," it seems, means more than nonsense but less than logical necessity. In other words, the task of reading becomes an infinite regress of glossing terms that are themselves supposed to be determinants of meaning. De Man's linguis- tic stutter returns here as the repeated effort to throw language outside itself. We could read a text, this implies, if only we were sure of the meaning of the words context and indicate. But those are precisely the words that raise the question of meaning in its most general form-- they cannot be glossed with any finality because they name the process of glossing itself.
Souter's text, in fact, is most anthropomorphic at those points where the infinite regress of language is most threatening. Congress is endowed with "natural" intentionality in order to sweep away the abyss of reference. Souter's dismissal of the prisoners' association as an "amorphous legal creature" is the counterpart to the need to reinforce the anthropomorphizability of the artificial legal creature, Congress. 17
Souter's opinion proceeds to detail the ways in which he thinks the in forma pauperis ruling should only apply to natural persons. If an af- fidavit alleging poverty is required for a person to proceed in forma pauperis, then can an artificial entity plead poverty? Souter again turns to Webster's dictionary to find that poverty is a human condition, to be "wanting in material riches or goods; lacking in the comforts of life; needy. " Souter also refers to a previous ruling, which holds that pover- ty involves being unable to provide for the "necessities of life. " It is as though only natural persons can have "life," and that life is defined as the capacity to lack necessities and comforts. "Artificial entities may be insolvent," writes Souter, "but they are not well spoken of as 'poor. '" An artificial entity cannot lack the necessities and comforts of life. Only life can lack. The experience of lack differentiates natural persons from artificial persons. To lack is to be human. In a sense, we have returned to de Man's question about mourning. Is lack human, or just a struc- ture? Whatever the case, the Court holds that associations cannot be considered persons for the purpose of the in forma pauperis procedure.
The majority was only five to four, however. In a dissenting opinion, written by Clarence Thomas, it is argued that there is no reason to re- strict the broad definition of "person" to natural persons in this case. Thomas quotes the Court's view of "poverty" as an exclusively "human condition," and comments:
I am not so sure. "Poverty" may well be a human condition in its "pri- mary sense," but I doubt that using the word in connection with an arti- ficial entity departs in any significant way from settled principles of English usage. . . . Congress itself has used the word "poor" to describe entities other than natural persons, referring in at least two provisions of the United States Code to the world's "Poorest countries"--a term that is used as a synonym for the least developed of the so-called "devel- oping" countries.
Souter has glossed the word poor as though speakers of English could only use it literally. Thomas responds by including the figurative use of poor as included within normal usage. The boundaries between natu- ral persons and artificial persons cannot be determined by usage, be- cause those boundaries have always already been blurred. In treating Congress as an entity with natural intentions, indeed, Souter has al- ready shown how "natural" the artificial can be.
At another point, Thomas takes issue with Souter's discussion of a case in which an association or corporation is considered a person de- spite strong contextual indicators to the contrary. In the case of Wilson v. Omaha Indian Tribe, 442 U. S.
653, 666 (1979), it was decided that "white person" could include corporations because the "larger con- text" and "purpose" of the law was to protect Indians against non- Indian squatters, and would be frustrated if a "white person" could simply incorporate in order to escape the provision of the law. Souter admits that "because a wholly legal creature has no color, and belongs to no race, the use of the adjective 'white' to describe a 'person' is one of the strongest contextual indicators imaginable that 'person' covers only individuals. " Justice Thomas argues that if the Court "was cor- rect in holding that the statutory term 'white person' includes a corpo- ration (because the 'context' does not 'indicate otherwise')--the con- clusion that an association is a 'person' for in forma pauperis purposes is inescapable. " Perhaps another inescapable conclusion is that despite its apparent reference to the physical body, the phrase "white person" is the name, not of a natural, but of a corporate person.
Justice Thomas refutes the reasons Souter has given for finding that artificial entities are excluded from the in forma pauperis provision, noting that there may be sound policy reasons for wanting to exclude them, but that the law as written cannot be construed to have done so. The Court's job, he writes, is not to make policy but to interpret a statute. "Congress has created a rule of statutory construction (an
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association is a 'person') and an exception to that rule (an association is not a 'person' if the 'context indicates otherwise'), but the Court has permitted the exception to devour the rule [a nice personification]" (treating the rule as if artificial entities were excluded rather than in- cluded unless the context indicates otherwise). "Whatever 'unless the context indicates otherwise' means," writes Thomas, "it cannot mean 'unless there are sound policy reasons for concluding otherwise. '"
Permitting artificial entities to proceed in forma pauperis may be unwise, and it may be an inefficient use of the government's limited re- sources, but I see nothing in the text of the in forma pauperis statute indicating that Congress has chosen to exclude such entities from the benefits of that law.
Thus, Thomas's two conservative instincts are at war with each other: he would like the government not to spend its money, but he would also like to stick to the letter of the law.
The question of what counts as a juridical person has, in fact, been modified over time in the legal code. It was in 1871 (significantly, per- haps, at the beginning of the end of post-Civil War Reconstruction) that the so-called Dictionary Act was first passed by Congress, in which the word Person "may extend and be applied to bodies politic and corporate. " More recently, the question of fetal personhood has been debated, not only in the Roe v. Wade decision, where it was de- cided that a fetus was not a legal person, but also in Weaks v. Mounter, 88 Nev. 118, where it was decided that a fetus was a person who could sue for intrauterine injuries, but only after birth. Recently, the question of granting patents for forms of life such as oil-slick-eating bacteria or genetically altered mice has raised the question of whether a hybrid be- tween humans and close animal relatives can be patented. And also, of course, the question of the ethics and legality of cloning humans has been raised. The law has reached another crisis about the definition of "person. " In an article on constitutional personhood, Michael Rivard writes:
Current law allows patents for genetically-engineered animals but not for human beings. Humans are not patentable subject matter because patents are property rights, and the Thirteenth Amendment forbids any grant of property rights in a human being. Nevertheless, this exclusion for humans will prove impossible to maintain: within ten to thirty years, or perhaps sooner, advances in genetic engineering technology should allow scientists to intermingle the genetic material of humans and ani-
mals to produce human-animal hybrids. . . . It may soon be possible to patent--and to enslave--human-animal hybrids who think and feel like humans, but who lack constitutional protection under the Thirteenth Amendment. 18
The Thirteenth Amendment is the amendment that abolishes slavery. The constitutional protection against slavery operates as a constraint on the patent office, but it does so in a paradoxical way. The fear of re- instituting something like slavery, or property in humans, is a reaction to, but also a sign of, what must be an ongoing research goal to come as close as possible to creating the ownable, enslavable human. 19
Constitutional personhood has in fact often been defined in prox- imity to slavery. The contradiction between equal rights and chattel slavery led from the beginning to verbal gymnastics, even in the draft- ing of the Constitution itself. By not using the word slavery in the Constitution, and by revising the text of the original fugitive slave clause to refer to the legality of slavery only on the level of the states rather than of the federal government, the framers built a double inten- tionality into the very foundation of their law. Douglas Fehrenbacher, studying the egregious understanding of original intent later employed by the Supreme Court in the case of Dred Scott v. Sanford, writes of the Constitution: "It is as though the framers were half-consciously trying to frame two constitutions, one for their own time and the other for the ages, with slavery viewed bifocally--that is, plainly visible at their feet, but disappearing when they lifted their eyes. "20 A written text of law can thus contain a double intention, the trace of a compro- mise between differing opinions. No wonder interpreting the law's in- tention is so complicated. That intention can always already be mul- tiple. The distinction Justice Thomas made between interpreting the law and making policy cannot hold if the law's ambiguity allows for the possibility that the policy it governs will change.
III
The "inhuman" is not some kind of mystery, or some kind of secret; the in- human is: linguistic structures, the play of linguistic tensions, linguistic events that occur, possibilities which are inherent in language--independently of any intent or any drive or any wish or any desire we might have. . . . If one speaks of the inhuman, the fundamental non-human character of language, one also speaks of the fundamental non-definition of the human as such.
--Paul de Man, "Benjamin's 'The Task of the Translator'"
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Only smoking distinguishes humans from the rest of the animals.
--Anonymous (quoted in Richard Klein, Cigarettes Are Sublime)
The case of Rowland v. California Men's Colony, Unit II Men's Advisory Council was ostensibly about whether a council of inmates could sue prison officials in forma pauperis to get their cigarettes back. The de- tails of the case seemed irrelevant to the question of whether an artifi- cial person has the right to sue in forma pauperis. Yet perhaps some of those details deserve note. Is it relevant that the suit to decide this ques- tion is brought by a council of inmates? The phenomenon of the in- mate civil suit has grown to the point where the case law may very well be transformed by it. In a 1995 study of inmate suits in California, it was reported that "For the last fourteen years at least, the federal courts have faced a growing caseload and workload challenge posed by inmate cases. . . . By 1992, these filings numbered nearly 30,000, and constituted 13% of the courts' total civil case filings nation- wide. "21 The majority of these suits are filed in forma pauperis. 22 The Supreme Court's decision may well have been affected by what Clarence Thomas calls "policy decisions. "
If prisoners are affecting the nature of civil proceedings, they are also, at least figuratively, affecting theoretical discussions about the na- ture of rational choice and the evolution of cooperation. The celebrat- ed "Prisoner's Dilemma" has been central to questions of self-interest and social goods since it was introduced by Albert Tucker in 1950. Max Black has even entitled his discussion of the issues raised "The 'Prisoner's Dilemma' and the Limits of Rationality. "23 Why is it that the theoretical study of rational choice has recourse to "man" con- ceived as a prisoner? Does this have anything to do with the poets' ten- dency to see the sonnet form as a prison?
And is it by chance that Rowland v. California Men's Colony, Unit II Men's Advisory Council is about cigarettes? On the one hand, it seems paradoxical that the council has to demonstrate its indigence in order to pursue its suit against the prison directors for depriving the prisoners of access to cigarettes, which in prisons function as a form of currency. On the other hand, it seems fitting that the personhood of the association is the counterpart to the humanity of the inmates, which, as common wisdom (quoted above, second epigraph) would have it, is demonstrated by the act of smoking. The prisoners would thus, in a very attenuated way, be suing for their humanity. As Richard Klein has wittily shown, smoking serves no function other than to enact a struc-
ture of desire--of human desire for self-transcendence, for repetition, for bodily experience corresponding to something other than the "ne- cessities of life" required for existence alone: in short, desire for the sublime. 24 Far from being what defines natural personhood, then, need for the "necessities of life" alone is precisely what cannot define the human.
In the article cited earlier, Rivard declares that "corporations would be presumed constitutional nonpersons," especially for liberty-related rights, unless the corporation could rebut its nonperson status by showing specific natural persons "who would be affected if the corpo- ration were denied these rights. "25 This is the opposite of the Dictionary Act, which considers a corporation a person "unless the context in- dicates otherwise. " Rivard's article is arguing for the rights of new bio- logical species who can pass the "self-awareness test" (which, in a surpisingly Lacanian move derived from Michael Dennett, he defines as wanting to be different from what one is), and he claims that corpo- rations, by their nature, do not pass this test.
But the question of the nature of corporations as persons has never been a simple one, as Rivard admits. In an article titled "The Personifi- cation of the Business Corporation in American Law" (University of Chicago Law Review 54 [fall 1987]: 1441), Gregory A. Marks out- lines in detail the history of corporate personhood. The relation be- tween corporations and the natural persons who compose them has grown more complicated over time, but in most discussions of the mat- ter, it is the "natural" person that functions as the known quantity, and the "artificial" who is either just an "aggregate" of natural persons, or a fiction created by the state, or a mere metaphor, or actually resembles (is like, to return to the Baudelairean word) a natural person in that it has a "will" of its own. Such a corporate will is a form of agency sepa- rate from that of the natural corporators, who exist behind the "veil" of the corporation. Much of Marks's article concerns the exact rhetori- cal valence of this personification:
American law has always recognized that people's activities could be for- mally organized and that the resulting organizations could be dealt with as units. Personification, however, is important because it became far more than a quaint device making it possible for the law to deal with or- ganized business entities. In American legal and economic history, personi- fication has been vital because it (1) implies a single and unitary source of control over the collective property of the corporation's members,
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(2) defines, encourages, and legitimates the corporation as an autono- mous, creative, self-directed economic being, and (3) captures rights, ulti- mately even constitutional rights, for corporations thereby giving corpo- rate property unprecedented protection from the state. (1443)
Marks takes seriously the role of language in the evolving history of the corporation. Philosophers and legislators have gone to great lengths to minimize the rhetorical damage, to eliminate personifi- cation as far as possible, but he asserts that it is not just a figure of speech to speak of a corporation's "mind," or even its "life. " "Prac- tical experience, not just anthropomorphism, fixed the corporate mind in the management hierarchy" (1475). The corporation resembled a human being in its capacity to "take resolves in the midst of conflict- ing motives," to "will change. " Yet the analogy is not perfect. The cor- poration, for example, unlike its corporators, is potentially immortal. The effect of personification appears to derive its rhetorical force from the ways in which the corporation resembles a natural person, yet the corporation's immortality in no way diminishes its personification. When Marks says that it is "not just anthropomorphism" that under- pins the agency of the corporation, he still implies that we can know what anthropomorphism is. But his final sentence stands this presup- position on its head. Far from claiming that a corporation's character- istics are derived from a knowable human essence, Marks suggests that what have been claimed to be the essential characteristics of man (es- pecially "economic man") have in fact been borrowed from the nature of the corporation:
Personification with its roots in historic theological disputes and mod- ern business necessity, had proved to be a potent symbol to legitimate the autonomous business corporation and its management. Private property rights had been transferred to associations, associations had themselves become politically legitimate, and the combination had helped foster modern political economy. The corporation, once the de- rivative tool of the state, had become its rival, and the successes of the autonomous corporate management turned the basis for belief in an in- dividualist conception of property on its head. The protests of modern legists notwithstanding, the business corporation had become the quint- essential economic man. (1482-83)
Theories of rationality, naturalness, and the "good," presumed to be grounded in the nature of "man," may in reality be taking their no-
tions of human essence not from "natural man" but from business corporations.
Ambivalence about personification, especially the personification of abstractions, has in fact permeated not only legal but also literary his- tory. Nervousness about the agency of the personified corporation echoes the nervousness Enlightenment writers felt about the personifi- cations dreamed up by the poets. As Steven Knapp puts it in his book Personification and the Sublime:
Allegorical personification--the endowing of metaphors with the agency of literal persons--was only the most obvious and extravagant instance of what Enlightenment writers perceived, with a mixture of ad- miration and uneasiness, as the unique ability of poetic genius to give the force of literal reality to figurative "inventions. " More important than the incongruous presence of such agents was their contagious ef- fect on the ostensibly literal agents with which they interacted. 26
The uncanniness of the personification, then, was derived from its way of putting in question what the "natural" or the "literal" might be.
We have finally come back to the question of whether there is a dif- ference between anthropomorphism and personification, which arose at the end of the discussion of the essay by Paul de Man. It can now be seen that everything hangs on this question. Not only does anthro- pomorphism depend on the givenness of the essence of the human and personification does not, but the mingling of personifications on the same footing as "real" agents threatens to make the lack of certainty about what humanness is come to consciousness. Perhaps the loss of unconsciousness about the lack of humanness is what de Man was calling "true 'mourning. '" Perhaps the "fallacious lyrical reading of the unintelligible" was exactly what legislators count on lyric poetry to provide: the assumption that the human has been or can be defined so that it can then be presupposed without the question of its defini- tion's being raised as a question--legal or otherwise. Thus the poets would truly be, as Shelley claimed, the "unacknowledged legislators of the world," not because they covertly determine policy, but because it is somehow necessary and useful that there be a powerful, presup- posable, unacknowledgment. But the very rhetorical sleight of hand that would instate such an unacknowledgment is indistinguishable from the rhetorical structure that would empty it. Lyric and law are two of the most powerful discourses that exist along the fault line of this question.
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NOTES
1. I am thinking of Richard Posner's Law and Literature (Cambridge: Harvard University Press, 1988), Richard Weisberg's The Failure of the Word (New Haven: Yale University Press, 1984), and Peter Brooks, Troubling Confessions (Chicago: University of Chicago Press, 2000). But for a legal approach that does address poetry, see the interesting discussion of Wallace Stevens by Thomas Grey and Margaret Jane Radin in the Yale Journal of Law & The Humanities 2:2 (summer 1990), as well as the more extended treatment of Wallace Stevens in Thomas Grey, The Wallace Stevens Case: Law and the Practice of Poetry (Cambridge: Harvard University Press, 1991).
2. William Wordsworth's sonnet, "Nuns Fret Not at Their Convent's Narrow Room," contains the lines, "In truth the prison, into which we doom / Ourselves, no prison is: and hence for me, / In sundry moods, 'twas pastime to be bound / Within the Sonnet's scanty plot of ground" (Selected Poetry and Prose of Words- worth [New York: Signet, 1970], 169).
3. John Keats's sonnet on the sonnet begins, "If by dull rhymes our English must be chained, / And, like Andromeda, the sonnet sweet / Fettered . . . " (The Selected Poetry of Keats [New York: Signet, 1966], 264).
4. One of several poems by Baudelaire titled Spleen describes a mood pro- duced by or analogized to a rainy day: "Quand la pluie e? talant ses immenses traine? es / D'une vaste prison imite les barreaux . . . " (Baudelaire, OEuvres com- ple`tes, vol. 1 [Paris: Ple? iade, 1975], 75).
5. For a suggestive discussion of what it means for a text to obey the law of genre, see Jacques Derrida, "The Law of Genre," in Acts of Literature, ed. Derek Attridge (New York: Routledge, 1992).
6. Paul de Man, "Anthropomorphism and Trope in the Lyric," in The Rhetoric of Romanticism (New York: Columbia University Press, 1984). Page numbers in parentheses refer to this essay.
7. United States Law Week 61:25 (January 12, 1993). Page numbers in paren- theses refer to this text.
8. This allusion to Keats's "Ode on a Grecian Urn" stands in for the premise of the compatibility of literary aesthetics with linguistic structures, and of linguistic structures with perceptual or intuitive knowledge, that de Man is often at pains to contest. See his remarks on the pedagogical model of the trivium in the titular essay of The Resistance to Theory (Minneapolis: University of Minnesota Press, 1986).
9. Friedrich Nietzsche, "Truth and Falsity in an Ultramoral Sense," in Critical Theory Since Plato, ed. Hazard Adams (Fort Worth: Harcourt Brace Jovanovich, 1992), 634-39. If the Keats poem stands as the claim that aesthetic and epistemo- logical structures are compatible, Nietzsche's text, for de Man, stands as a parody of that claim.
10. The translations are mine, for the purpose of bringing out those aspects of the poems that are relevant to my discussion.
11. "Allegory and Irony in Baudelaire," in Romanticism and Contemporary Criticism (Baltimore: Johns Hopkins University Press, 1993). This essay is part of the Gauss Seminar given by de Man in 1967.
12. Jacques Lacan, "Aggressivity in Psychoanalysis," in E? crits: A Selection, trans. Alan Sheridan (New York: W. W. Norton, 1977), 17: "What I have called paranoic
knowledge is shown, therefore, to correspond in its more or less archaic forms to certain critical moments that mark the history of man's mental genesis, each repre- senting a stage in objectifying identification. "
13. Ibid. , 9.
14. Jacques Derrida, "Freud's Legacy," in The Postcard, trans. Alan Bass (Chicago: University of Chicago Press, 1987).
15. De Man, "The Resistance to Theory," 10.
16. United States Code (1994 edition), vol. 15, 438.
17. In a response to the present paper given at the Yale Law School, Shoshana
Felman made the brilliant suggestion that Souter would have wanted to rewrite Baudelaire's "Correspondances" as: "Le Congre`s est un temple ou` de vivants pil- liers laissent parfois sortir de confuses paroles . . . " The neoclassical, Parnassian ar- chitecture of official Washington, D. C. , and the common metaphorical expression "pillars of the community," add piquancy to this suggestion.
18. Michael D. Rivard, "Toward a General Theory of Constitutional Person- hood: A Theory of Constitutional Personhood for Transgenic Humanoid Species," UCLA Law Review 39: 5 (June 1992): 1428-29.
19. See A. Leon Higginbotham Jr. and Barbara Kopytoff, "Property First, Humanity Second: The Recognition of the Slave's Human Nature in Virginia Civil Law," Ohio State Law Journal 50:3 (June 1989): "The humanity of the slave, re- quiring that he be treated with the care due other humans and not like other forms of property, became part of the owner's property rights" (520).
20. Douglas E. Fehrenbacher, Slavery, Law, and Politics: The Dred Scott Case in Historical Perspective (Oxford: Oxford University Press, 1981), 15.
21. Kim Mueller, "Inmates' Civil Rights Cases and the Federal Courts: Insights Derived from a Field Research Project in the Eastern District of California," Creighton Law Review 1228 (June 1995): 1258-59. In the Eastern District of Cali- fornia, inmates' civil rights actions constituted nearly 30 percent of the case filings. (California Men's Colony is not in the Eastern District; it is in San Luis Obispo. )
22. Ibid. , 1276 and 1281.
23. Max Black, Perplexities (Ithaca, N. Y. : Cornell University Press, 1990). See also Robert Axelrod, The Evolution of Cooperation (New York: Basic Books, 1984).
24. Richard Klein, Cigarettes Are Sublime (Durham, N. C. : Duke University Press, 1993). Klein notes, incidentally, that Baudelaire is one of the first French writers to use the word cigarette in print (in his "Salons de 1848," 8).
25. Rivard, "Toward a General Theory of Constitutional Personhood," 1501-2.
26.
