One for the lawyers

[I read Derrida's Gift of Death last week and was immensely moved by some of the meditations on the relationship between responsibility, death and ethics. (Yes, I work in a field where being moved by something is legitimate motivation for thought ...) Anyway, here's a piece I wrote for another member of my Committee. It's a reading of two versions of the tale of Lycurgus and the founding of Athenian law. I summarize the story within the essay but here's a the link to the Wiki entry on Lycurgus of Sparta, who is the mythological figure the tales refer to.]

Founding the Law Through the Gift of Death

Derrida's The Gift of Death offers some provocative meditations on the notion of "responsibility" and how it is tied with the absolutely unique sense of one's own mortality. In a section that comes close to a summary of his thoughts on the subject, Derrida writes:

The gift of infinite love comes from someone and is addressed to someone; responsibility demands irreplaceable singularity. Yet only death or rather the apprehension of death can give this irreplaceablity, and it is only on the basis of it that one can speak of a responsible subject, of the soul as conscience of self, of myself, etc. We have thus deduced the possibility of a mortal's accession to responsibility through the experience of his irreplaceability, that which an approaching death or the approach of death gives him. But the mortal thus deduced is someone whose very responsibility requires that he concern himself not only with an objective Good but with a gift of infinite love, a goodness that is forgetful of itself. (51)

Responsibility is possible, and constitutes the subject when the individual acts in a way that is non substitutable, in a manner that either causes the singular experience of my own death or reminds me of my impending death. In acting as this singular individual, the subject is able to face the absolute other (person) and respond to the Other (God), without the supporting or masking elements of ethics or the law.

The law (the Platonic Good or ethics) is problematic as a foundation of the "responsible subject" for Derrida. Contrary to common sense, when we think that a responsible person is one who abides by rules and obeys the law, who makes decisions rationally, Derrida sees behavior governed by the law as "the technical deployment of a cognitive apparatus, the simple mechanistic deployment of a theorem" (24). Merely acting in an ethical manner shrugs off the absolute burden of responding to the Other without question or justification. To speak the justifications of the law denies the singularity of being and reduces the subject into an egocentric entity:

The ethical can therefore end up making us irresponsible. It is a temptation, a tendency or a facility that would sometimes have to be refused in the name of a responsibility that doesn't keep account or given an account, neither to man, to humans, to society, to one's fellows, or to one's own. Such a responsibility keeps its secret, it cannot and need not present itself .... It declines the autobiography that is always auto-justification, egodicy. (61-2)

I found that these thoughts illuminated the tale of Lycurgus and the founding of Athenian law that is found in both Book VII of Confessio Amantis (VII.2917— 3025) and Hoccleve's The Regiment of Princes (2950—89). The outline of both versions of the story is similar. In order to ensure that the Athenians will abide by the laws that Lycurgus has instituted during his reign even after his death, he strikes a deal with them. He says that he has an appointment to keep with a god (Mercury in Gower's version, Apollo in Hoccleve's) and that Athens must keep the laws while he is gone. After having obtained their vows that they will do so, Lycurgus then goes into self-imposed exile, and never returns to Athens. In doing this, he secures the future of Athenian law.

Insofar that it is an origins myth, what is interesting is the way that absence grounds the law. The pledge to keep the law until Lycurgas returns also guarantees that absence is not figured by loss but by the expectation of return. Held up against Derrida's thoughts on the nature of responsibility, and the way that absolute responsibility cannot be defined as ethical behavior or actions bound by law, the myth seems to further suggest that what grounds the law, on the other hand, is perhaps an act by the irreplaceable subject, a gift of death on Lycurgas' part.

Each version of the tale demonstrates this notion more fully, if differently, while raising questions about the efficacy of such an act when it is performed not in the face to face confrontation between one individual and another absolute individual, but when an individual acts for an entire society.

In Confessio Amantis, the law is already founded on the person of Lycurgus when the tale begins. It works to protect the conservative interests of a carefully ordered society:

Richesse upon the comun good
And nought upon the singuler
Ordeigned was, and the pouer
Of hem that weren in astat
Was sauf: wherof upon debat
Ther stod nothing, so that in reste
Mihte every man his herte reste (VII.2930-6).

Lycurgus' challenge then, is to wean the people off his presence, as it were. His desire is to move from the specific to the general because their allegiance to him governs their adherence to the law.

The excuse Lycurgus offers for his departure is that the true author of the law, Mercury, wants to speak to him about how to further improve life in Athens. It is at this juncture that two questions emerge. Why is attributing the law to a god not enough to secure its survival? And if the name of a god is not efficacious in this way, why invoke the gods at all? While 'Mercury' is a convenient excuse in Lycurgus' own narrative for him to tell the people that he is going "into a place / Which is forein out in an yle" (VII.2974-5), this fails to account for the tension between faith and doubt in the name of a god that arises in Lycurgus' actions.

Perhaps this instability clarifies Derrida's suggestions about the interaction between the Other and the one who is about to become a responsible subject. Lycurgus needs to use the name of a god in order to convince not the people but himself that his act of grounding the law with his disappearance is indeed a responsible act that responds to some absolute Other. For he does take a risk in grounding the law with his absence: the people could easily go back on their word and not abide by the law anyway. Given the stable hierarchical society that is presented in this version of the tale, with Lycurgus at the apex, his disappearance might prompt a power struggle, upsetting the social balance. In fact, the emphasis on the carefully ordered society in the lines quoted earlier suggests that the "comun good" may really rest on a fragile balance of power that could easily slide into disequilibrium. The name of God, in this instance, grounds the law only as an after-effect: its primary function seems to be to account for absence, to transform loss into a productive phenomenon.

While Hoccleve's version of the tale is similar in outline, there are crucial differences. To begin with, Hoccleve's protagonist is not named or established as the respected ruler of Athens: "Ther was a knyght, I not what men him calle / A just man and a treewe in all his deede". (To distinguish between the two, I'll refer to Hoccleve's version of Lycurgus as "the knight"). Further, the motivation for the knight to establish the law with his absence is very different. Unlike the ordered and happy Athenian society that Gower presents, the knight's "sharp lawes" cause the people to become angry and contentious:

And whan they [the laws] weren byfore hem [the people] yrad
They made hem wondir wrooth, and seiden alle,
They weren nat so nyce ne so made
To hem assente for aght may befalle;
They wolden nat hem to tho lawes thralle;
And wolde hand artid this knyght hem repele,
Makyng ageyn him an haynous querele. (2955-61)

Unlike the picture of stability that Gower's Lycurgus presides over, the laws cause social unrest in this case. In effect, by proposing the laws the knight participates in action that is more radical than Lycurgus', for the latter just wants to preserve the status quo. Yet this in itself cannot be the responsible action that Derrida discusses, despite defying social convention and thus possibly answering an absolute call of duty, his actions seem to stem from his own disposition (he is a "just man" and "treewe") rather than from an encounter with the absolute Other. Further, his immediate actions in response to the pressure of the crowd delay the assumption of responsibility. Instead of assuming authorship for the laws (and thus assuming the guilt that must follow on the heels of the social disruption that he has caused), he defers that responsibility, transferring the authorship of the laws of the god Apollo:

Whan he sy this, he blyve to hem seide
He made hem nat, it was god Apollo.
'And on my back,' quod he,'the charge he leide
To keepe hem ... (2962-5)

Not only does he deflect responsibility onto a god, he simultaneously places himself between the god and the people. This allows him to assume another position, another duty – "dever" (2975) – that appears as a responsible act in the eyes of the people: he will go to the god and ask Apollo to repeal the laws. These movements of shrugging off responsibility and then re-inscribing a new role as intermediary for himself, illustrate Derrida's contention that the notion of responsibility can indeed be deployed in an ungrounded, yet politically strategic manner.

Yet ultimately, in both versions of the story, I think there is an assumption of responsibility that approximates to what occurs in Kierkegaard's reading of Abraham's sacrifice of Isaac. Like Abraham, Lycurgus and the knight hold on to a secret. They know that there is no god and they know that they will never return. To justify their leaving may have jeopardized their responsibility but the very structure of their absence ensures that they can never speak of the secret that binds the people to obedience to the law. While Gower's Lycurgus just never returns and dies, Hoccleve's knight goes further to ensure that his body will not betray the secret even after his death:

And whan his laste day gan to appeere,
He bad men throw his body in the see
Lest, if upon the lond maad were his beere,
The peple mighten unto hir citee
His bones carie, and at hir large be,
Qwyt of hir ooth, as to hir jugement. (2983- 8)

In both cases, the self-imposed exile is a moment that immediately becomes mindful of this point of death, when their return to Athens, willed or accidental, can no longer occur. Because of the singularity of their deaths – no one else can authentically claim to be them after they have died – the generality of the law, over time and a nation and distinct from their identities, becomes assured. Yet does this act of sacrifice ironically institute the law as a generality that is itself at odds with the further possibility of responsibility for others? Does the law generalize and order behavior such that it eradicates the encounter with an Other, even if it is the imagined encounter of Lycurgus and the knight? Further, Derrida's responsible subject seems to act in a face-to-face moment when confronting a human other, an individual recipient of the gift, not on behalf of the social order. Does sacrifice, when it becomes the focal point of a group identity (even if it is unconscious, as is the case in the tale), necessarily lose its meaning as an act of responsibility precisely because it falls into the realm of making human others general entities rather than particular subjects?

Both Gower and Hoccleve place this tale in sections of their work that insist on the impersonality of the law. Princes themselves cannot be above the law and the ostensible moral of the tale is that the law itself can never be founded on a personality but must be assented to by the people. However, the way that this myth of origins gains this assent, through acts that problematically devolve and then assume responsibility, suggests that the relationship between the law and the singular act of personal sacrifice might be much more intimate than those who trust the law's transcendence would like to admit.

Works Cited:
Derrida, Jacques. The Gift of Death. Trans. David Wills. Chicago: University of Chicago Press: 1995.
Gower, John. Confessio Amantis Volume 3. Ed. Russell A. Peck. Kalamazoo: Medieval Institute Publications: 2004.
Hoccleve, Thomas. The Regiment of Princes. Ed. Charles R. Blyth. Kalamazoo: Medieval Institute Publications: 1999.