The destructive function that shadows the constructive promise of legal interpretation stands out as one of the key provocations in Cover’s ‘Violence and the Word’ (1986). I wish to raise here a couple of questions relating to the limits of the ‘world-destroying’ violence with which the author tries to displace the ‘world-making’ fixation of the jurisprudence of Dworkin and White.

The first concerns the intrinsic limits of ‘common meaning’ that Cover suggests to be implied in the unhealable rift that separates law and the criminal. For Cover, the prisoner’s ‘co-operation’ with the legal system evidences not so much his/her repentance as the coercive domination of the machinery, which extinguishes the possibility of cohabitation in a normative universe. Already thinned by the institutional division of will and labour, the ‘common meaning’ of law is further delimited by the wound that law burns into the ‘body of the condemned’ (Foucault). My question: would this ‘hole’ mark the horizon of the nomos (‘the one ends here; there lies the other’), or might it further indicate an impossibility within the nomos (‘there is no “one” to begin with’)? Is a world being destroyed (‘I am if you are not’), or might it already be destroyed (‘you are not and neither am I’)?

The second concerns the possibility of resistance, of which Cover cites three instances: martyrdom, rebellion, and revolution. These scenes evince a militant refusal to accept the substitution of one law with the other (‘I would rather die than be you’) or even a repetition of world-destroying violence (‘be me or die’). They suppose the sacrifice of the outlaw or the coup sought by a counter-community. They rehearse the destructive function of law. But not every prisoner is destroyed by law. Aung San Suu Kyi survived her 15-year house-arrest. Indeed, criminal recalcitrance suggests the very longevity of the condemned. Sade’s libertinism resumed between his incarceration, not to say it flourished then — in those 27 years behind bars he wrote the copious pornography that were destined to outlive him and the regimes which sanctioned him. So if worlds survive law, is law’s operation ‘world-destroying’? Or does this characterisation, however well-intentioned, collude with law by concealing its limits? And, with Sade in mind, could life resist law without destroying it? Give in to law without giving in?

While revisiting the Crary fragment (pp18-19) last night, I was briefly struck by the impression that despite the pessimism in the author’s judgment of the probable incurability of insomnia in the global capitalist conjuncture, his suggestion of the body’s resilient awareness of its complicity in the ongoing globalist processes of expropriation bears a certain optimism. That what is foreclosed to the self-serving psyche of the consumer-citizen could nonetheless be registered by the body through its refusal of the balm of sleep – a refusal so strong that it survives the opiates and subsists in the day’s lethargy – supposes a community-bound ontology that operates to limit violence. Further implied in this diagnosis is the true antidote to the affliction: the conscious recognition of this corporeal guilt and the likewise conscious withdrawal of one’s consent to the global capitalist machinery through action.

There might linger, nonetheless, a doubt as to whether the body is indeed as attached to community as the critique suggests. If the narcissism of the consumer-citizen allows him/her to avert his/her gaze from the contemporaneous sufferings of the impoverished other and to saturate himself/herself with the pleasures afforded by more immediate communities (family; friends), would the body be so agonised by the pain of the distant other as to alter its habitual patterns? Or is Crary interested not so much in furnishing a biological explanation grounded in what the natural sciences consider to be facts as in crafting another narrative that appropriates the figure of the body as a means of reclaiming our responsibility for the other? Does the critique then occur in a space of ‘pure’ fiction that only mobilises ‘fact’ as a rhetorical device for its appeal to its intended addressees? What is its ‘truth’?