No More Learning

8. Louis Althusser, "Ideology and Ideological State Apparatuses (Notes to- wards an Investigation," in Lenin and Philosophy and Other Essays, trans. Ben Brewster (New York: Monthly Review Press, 1972), 162. See page 159, where Althusser says, "ideology has no history," and goes on to remark: "As we know, this formulation appears in so many words in a passage from The German Ideology. "
9. In an equally important, though much less well known, definition of ideolo- gies near the beginning of "Phenomenality and Materiality in Kant" de Man assert- ed that ideologies are on the side of what Kant called "metaphysics," that is, in Kant's use of the term, precritical empirical knowledge of the world. Only critical analysis of ideologies will keep ideologies from becoming mere illusion and critical philosophy from becoming idealism cut off from the empirical world (AI 72). The anonymous reader for the University of Minnesota Press sternly challenged my understanding in this footnote of Kant's use of the term metaphysics. This is another allergic reaction, one that demonstrates just the point I am making about de Man. Surely Kant cannot have meant something so strange as this by "metaphysics"! At the risk of making this footnote tediously long for those who have read Kant and de Man's commentary on Kant, here is the relevant passage from Kant, followed by de Man's comment on it. I think my reader is mystified through having accepted received opinion about what Kant must be saying because everyone knows that is what he says. That received opinion is, precisely, a species of "ideology," even of
"aesthetic ideology. " Kant says: "A transcendental principle is one through which we represent a priori the universal condition under which alone things can become Objects of our cognition generally. A principle, on the other hand, is called meta- physical [Dagegen heisst ein Prinzip metaphysisch], where it represents a priori the condition under which alone Objects whose concept has to be given empirically [empirisch], may become further determined [bestimmet] a priori. Thus the prin- ciple of the cognition of bodies [der Erkenntnis der Ko? rper] as substances, and as changeable substances, is transcendental where the statement is that their change must have a cause [Ursache]: but it is metaphysical where it asserts that their change must have an external cause [eine a? ussere Ursache]. For in the first case bod- ies need only be thought through ontological predicates (pure concepts of under- standing [reine Verstandesbegriffe]), e. g. as substance, to enable the proposition to be cognized a priori; whereas, in the second case, the empirical concept of a body (as a movable thing in space) must be introduced to support the proposition [diesem Satze zum Grunde gelegt werden muss], although, once this is done, it may be seen [eingesehen] quite a priori that the latter predicate (movement only by means of an external cause) applies to body" (Immanuel Kant, Kritik der Urteilskraft, ed. Wilhelm Wieschedel [Frankfurt am Main: Suhrkamp, 1979], 90; The Critique of Judgement, trans. James Creed Meredith [Oxford: Oxford University Press, 1982], 20-21). De Man comments, in "Phenomenality and Materiality in Kant": "The condition of existence of bodies is called substance; to state that substance is the cause of the motion of bodies (as Kant does in the passage quoted) is to exam- ine critically the possibility of their existence. Metaphysical principles, on the other hand, take the existence of their object for granted as empirical fact. They contain knowledge of the world, but this knowledge is precritical. Transcendental prin- ciples contain no knowledge of the world or anything else, except for the knowl- edge that metaphysical principles that take them for their object are themselves in need of critical analysis, since they take for granted an objectivity that, for the tran- scendental principles, is not a priori available. Thus the objects of transcendental principles are always critical judgments that take metaphysical knowledge for their target. Transcendental philosophy is always the critical philosophy of metaphysics" (AI 71). De Man goes on to associate ideology with metaphysics as Kant defines it. The passage is an important gloss on de Man's definition, or, more properly, "call- ing," of ideology in "The Resistance to Theory," just cited. In the sentences that follow just after the ones already quoted from "Phenomenality and Materiality in Kant" de Man associates ideology with Kantian "metaphysics" and argues for an intricate interdependence of critical thought on ideology and of ideology, if it is to other than "mere error," on critical thought. If metaphysics or ideology needs criti- cal thought, critical thought also needs ideology, as its link to epistemological ques- tions. The link is "causal. " The "passage" is a good example of that almost imper- ceptible crossing, in de Man's formulations, of the border between rigorous reading of passages in the author being discussed and statements that are de Man's own, authorized by his own rigor of thought, as it extrapolates from what the author in question says: "Ideologies, to the extent that they necessarily contain empirical mo- ments and are directed toward what lies outside the realm of pure concepts, are on the side of metaphysics rather than critical philosophy. The conditions and modali- ties of their occurrence are determined by critical analyses to which they have no
Paul de Man as Allergen 203
204 J. Hillis Miller
access. The object of these analyses, on the other hand, can only be ideologies. Ideological and critical thought are interdependent and any attempt to separate them collapses ideology into mere error and critical thought into idealism. The pos- sibility of maintaining the causal link between them is the controlling principle of rigorous philosophical discourse: philosophies that succumb to ideology lose their epistemological sense, whereas philosophies that try to by-pass or repress ideology lose all critical thrust and risk being repossessed by what they foreclose" (AI 72). The only responsible way to challenge de Man's reading of Kant would be to go back to Kant for oneself and read him with scrupulous care, trying not to be misled by ideological presuppositions about what Kant must be saying. This is extremely difficult, not just because Kant is difficult, but because those ideological presuppo- sitions are so powerful and are unconscious to boot, as Althusser says, that is, a taken for granted assumption that something really linguistic is phenomenal.
10. See de Man's "Reply to Raymond Geuss" (AI 185-92), first published in Critical Inquiry 10:2 (December 1983), a rejoinder to Geuss's "A Response to Paul de Man," in the same issue of Critical Inquiry.
11. Speaking in "Autobiography as De-Facement," of what Ge? rard Genette says about the undecidable alternation between fiction and autobiography in Proust's Recherche, de Man says: "As anyone who has ever been caught in a re- volving door or on a revolving wheel can testify, it is certainly most uncomfortable, and all the more so in this case since this whirligig is capable of infinite acceleration and is, in fact, not successive but simultaneous" (RR 70).
12. Jacques Derrida approaches this problematic from another direction in his second essay on Levinas, "En ce moment me^me dans cet ouvrage me voici," in Psyche? : Inventions de l'autre (Paris: Galile? e, 1987), 159-202.
13. Geoffrey Chaucer, Troilus and Cressida, 2:49.
14. Friedrich Schlegel, Kritische Schriften (Munich: Carl Hanser, 1964), 501-2. 15. I do not mean that it is impossible to disagree with what de Man says or to
challenge his positions, as I have done elsewhere (by way of calling attention to the way de Man cannot expunge one trope, prosopopoeia, from his own language, though he rejects prosopopoeia as a false projection), or as I am doing here in stressing what is "unintelligible" in what de Man says, or as Jacques Derrida does with exemplary care and delicacy in his essay in this volume apropos of de Man's sense of the relation of Rousseau's Confessions to literary history. I mean that chal- lenging de Man persuasively and responsibly is not all that easy, and that de Man will most often have foreseen and effectively forestalled the objections that it occurs to a skeptical or antagonistic reader to make.
Anthropomorphism in Lyric and Law
Barbara Johnson
Anthropomorphism. n. Attribution of human motivation, characteristics, or be- havior to inanimate objects, animals, or natural phenomena.
--American Heritage Dictionary
Through a singular ambiguity, through a kind of transposition or intellectual quid pro quo, you will feel yourself evaporating, and you will attribute to your . . . tobacco, the strange ability to smoke you.
--Baudelaire, Artificial Paradises
Recent discussions of the relations between law and literature have tended to focus on prose--novels, short stories, autobiographies, even plays--rather than on lyric poetry. 1 Literature has been seen as a locus of plots and situations that parallel legal cases or problems, either to shed light on complexities not always acknowledged by the ordinary practice of legal discourse, or to shed light on cultural crises and de- bates that historically underlie and inform literary texts. But, in a sense, this focus on prose is surprising, since lyric poetry has at least historically been the more law-abiding or rule-bound of the genres. Indeed, the sonnet form has been compared to a prison (Wordsworth),2 or at least to a bound woman (Keats),3 and Baudelaire's portraits of lyric depression (Spleen)4 are often written as if from behind bars. What are the relations between the laws of genre and the laws of the state? 5 The present essay might be seen as asking this question through the juxtaposition, as it happens, between two sonnets and a prisoners' association.
More profoundly, though, lyric and law might be seen as two very
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different ways of instating what a "person" is. There appears to be the greatest possible discrepancy between a lyric "person" (emotive, sub- jective, individual) and a legal "person" (rational, rights-bearing, insti- tutional). In this essay I will be trying to show, through the question of anthropomorphism, how these two "persons" can illuminate each other.
My argument develops out of the juxtaposition of two texts: Paul de Man's essay "Anthropomorphism and Trope in the Lyric,"6 in which I try to understand why for de Man the question of anthropo- morphism is at the heart of the lyric, and the text of a Supreme Court opinion from 1993, Rowland v. California Men's Colony, Unit II Men's Advisory Council. 7 This case has not become a household name like Roe v. Wade or Brown v. Board of Education, and probably with good reason. What is at stake in it appears trivial--at bottom, it is about an association of prisoners suing for the right to have free ciga- rette privileges restored. But the Supreme Court's task is not to decide whether the prisoners have the right to smoke (an increasingly contest- ed right, in fact, in the United States). The case has come before the court to resolve the question of whether the prisoners' council can be counted as a juridical "person" under the law. What is at stake, then, in both the legal and the lyric texts is the question, What is a person?
I
I will begin by discussing the article by Paul de Man, which is one of the most difficult, even outrageous, of his essays. Both hyperbolic and elliptical, it makes a number of very strong claims about literary his- tory, lyric pedagogy, and the materiality of "historical modes of lan- guage power" (262). Toward the end of his text, de Man somewhat unexpectedly reveals that the essay originated in an invitation to speak on the nature of lyric. But it begins with some general remarks about the relation between epistemology and rhetoric (which can stand as a common contemporary way of framing the relations between law and literature). The transition between the question of the lyric and the question of epistemology and rhetoric is made through the Keatsian chiasmus, "Beauty is truth, truth beauty,"8 which de Man quotes on his way to Nietzsche's short and "better known than understood" (239) essay "On Truth and Lie in an Extra-Moral Sense. "9 "What is truth? " Nietzsche asks in that essay's most oft-quoted moment: "a mobile army of metaphors, metonymies, and anthropomorphisms. " Thus it would seem that Nietzsche has answered, "Truth is trope, trope truth" or "epistemology is rhetoric, rhetoric epistemology. " But de Man wants
to show in what ways Nietzsche is not saying simply this. First, the list of tropes is, he says, "odd. " Although metaphor and metonymy are the names of tropes that designate a pure structure of relation (metaphor is a relation of similarity between two entities; metonymy is a relation of contiguity), de Man claims that anthropomorphism, while structured similarly, is not a trope. It is not the name of a pure rhetorical struc- ture, but the name of a comparison one of whose terms is treated as a given (as epistemologically resolved). To use an anthropomorphism is to treat as known what the properties of the human are.
"Anthropomorphism" is not just a trope but an identification on the level of substance. It takes one entity for another and thus implies the constitution of specific entities prior to their confusion, the taking of something for something else that can then be assumed to be given. Anthropomorphism freezes the infinite chain of tropological transfor- mations and propositions into one single assertion or essence which, as such, excludes all others. It is no longer a proposition but a proper name. (241)
Why does he call this a proper name? Shouldn't the essence that is taken as given be a concept? If "man" is what is assumed as a given, why call it a proper name? (This question is particularly vexed when the theorist's proper name is "de Man. ") The answer, I think, is that "man" as concept would imply the possibility of a proposition. "Man" would be subject to definition, and thus transformation or trope. But proper names are not subjects of definition: they are what they are. If "man" is taken as a given, then, it can only be because it is out of the loop of qualification. 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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210 Barbara Johnson
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.