April 24, UC Berkeleytownsendgroups.berkeley.edu/sites/default/files/lawfare_paper1.1... · Web viewApril 24, UC Berkeley Dr.Birgit Langenberger, Ph.D University of Vienna, Austria

Dr.Langenberger Ph.D. Slavery, Colony - natural lawfare

April 24, UC Berkeley

Dr.Birgit Langenberger, Ph.DUniversity of Vienna, Austria

Slavery, Colony and Natural rights – performative maneuvers of “natural lawfare” in the American Declaration of Independence

(1776)

At the founding of the American republic there is an uncanny co presence of natural rights, slavery, and colony. Are the latter just a matter of historical coincidence or does it reflect a more intricate correlation between the liberal political principles of the Enlightenment and the oppressive state of human enslavement and colonialism than hitherto presumed? In other words, is it possible that the very principle of natural rights is in some ways conducive to the justification of oppression?

First, how can the American Declaration of Independence (1776), a paradigmatic document of colonial resistance that successfully underpinned the American colonies’ striving for independence from the motherland Great Britain in turn legitimize colonial conquest in the name of natural rights? Hence what is puzzling is the fact that this result comes about despite the presumption of the equal human nature of Native Americans.

Second, how can one explain the shift from Jefferson’s plea for the “most sacred rights of life & liberty” of African slaves in his original rough draft of the DI to his pessimism as to an ‘inevitable’ race-war, and therefore to the supposedly legitimate criminalizing of blacks in the final draft of the DI?

This paper intends to show that more than a coincidental co-presence of rights and oppression is at work. By tracing the speech-act- performative maneuvers of naturalization and dehistoricization, it attempts to demonstrate how the conceptual and philosophical tension of the principles of rights (“laws of nature” and “nature’s God”) turns the terrible exceptions of slavery and colony into American specific justifications of “natural lawfare.”

IntroductionI would like to start by briefly relating to you what got me interested in this topic to begin with. An American student once told me about an intellectual exchange he had with his teacher about the American Declaration of Independence 1776 (henceforth shortly to be called DI). The student raised the issues of slavery and colonialism at the time of the American Revolution. He questioned their compatibility with the inalienability of rights of “life, liberty, and the pursuit of happiness.” Yet

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the teacher answered “look at DI’s beautiful language and natural rights principles”- they cannot be invalidated by the “deplorable existence of slavery and colonialism.” The latter are just practical shortcomings of otherwise intact and universally valid principles of justice. But is this really the case? Can the principles of justice really be neatly separated from their practical implementation in a polity? …This is what got me started.

Thereafter, during my research I came across the commonly held scholarly (politically liberal) view that the DI (American Declaration of Independence) holds universally valid truths of inalienable rights potentially including everyone (black people and Americas first nations) whereas the US-Constitution legally permitted slavery and colonial expansion.1

Accordingly the practices of slavery and colonial expansion are, if at all, regarded as mere aberration of the DI’s “high principles of natural rights” and the US-Constitution as a “necessary” compromise between the Northern states and the Southern (slave-holding) states (for the purpose of upholding the union). Presumed is here a distinction between theory and practice – as if the “high principles” were the theory and the supposedly “necessary” (at times even called deplorable) compromise the practice. Yet the question is whether such a distinction can be consistently maintained.2 Indeed, the DI itself suggests more of a correlation of the assumed separate dimensions of theory and practice.

However, just to return to the point I’m trying to make, I was not buying into the official and commonly held view that slavery and colony (see definition below), are just practical shortcomings of universal natural rights principles. Instead I asked myself in which way the principles of natural rights/natural law appealed to in the DI may be contributing to the “terrible exception of slavery” and violent colonial expansion towards 1 Recall that the US-Constitution is rather ambiguous: slaves are counted as 3/5 of a person, i.e. as persons (sic!) of less value, yet “good” enough to increase the numbers of Southern representatives in Congress (US Const. Art.I, Sec.2, Cl.3); the passage of migration and importation of humans /wares which lingers between the two (US Const. Art.I, Sec.9, Cl.1); fugitive slaves’ clause, i.e. the duty of free states to return slaves (“persons”) to their owners according to the US-Constitution, thus overriding state laws that outlaw slavery and accordingly would declare blacks to be free (US Const., Art.IV, Sec.2, Cl.3) (why I say blacks? Because during the course of the 19th century being a black person (even if one was born free in a free state) became more and more inseparable from being a slave (up to the infamous Dred Scott decision and Chief Justice Taney’s violently racist majority view, Dred Scott v Sanford, 1857). On the one hand there is evidence that the US Constitution defines slaves as “persons” (Finkelman, 119), on the other hand the Fifth Amendment (no person could be deprived of life, liberty or property without due process of law) defines slaves as property (Finkelman, 120). The latter view was reaffirmed in Dred Scott (1857). Notice, though that the retrospective interpretation of the US Constitution as exclusively regarding slaves as property cannot cover over their ambiguous status in the US Constitution. 2 This is, by the way, crucial in terms of historiography- how does the very story of overcoming past injustices - abolition etc.- contribute to the continuation of injustices and racial discrimination, how does it work as self-justificatory instrument covering over its own role for the sake of the unity of the nation. Note for instance 19th century abolition societies, who, while fighting for equal rights were using images in which the status of blacks was depicted as inferior yet again (in kneeling positions a la, the white abolitionists liberating them according to the traditional division between actice/passive, white/black, civilized/savage -St.Hall). I cannot discuss this issue in detail because of constraints of time. I am just pointing out this important aspect that has been discussed by prominent African American scholars (T.Morrison; R.Castronovo; etc.).

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the West.3 This appears counterintuitive for the very principles of natural rights usually serve as a critical standard against which hierarchical political and social institutions may be held.

Yet, in the DI one can observe not only a puzzling overlap of natural law and positive law, but also how slavery and colony are placed right “in between” them. I am going to suggest that their very status” in between” makes slaves and Native Americans subject to gross injustice and violence by exposing them to natural lawfare. For according to natural law rights as humans accrue to them but according to positive law (i.e. posited law)4 they may be either treated as wares/property, wild creatures (applied especially to insurrectionary slaves) or persons. The violence resulting from their indeterminate status “in between” prepares the ground for targeting slaves and Native Americans because of their very being/nature by natural lawfare. (I am going to develop the concept of natural lawfare further below) At this point it suffices to point out that natural lawfare operates pre-emptively and that the disciplinary, police measures (internally irregular warfare) to put slaves/Africans down and fight Native Americans can be attributed to the “executive right of nature”(and not to civil laws only). To get back to the matter at hand, I took a closer look at the DI in terms of the relation between what is today called theory and practice, and at the time of the DI may be called relation between “natural law” and “positive law” (whereby positive law is understood in the widest sense of law being posited and followed, irrespective of the source of validity, whether by sovereign command or by common laws adhered to). More aptly, this correlation may be described as one between theory (universal, immutable principles) and the norms/conventions of practice (or a “theory of practice”). It is based on the assumption that knowledge of practice is not immediately, directly accessible but instead always already situated within discursive historical conventions. These discursive conventions enable and circumscribe these practices and the latter only make sense within this frameworkEvidence for the workings of the correlation between theory and norms of practice can be found in the various ways in which the DI’s preamble is contextualized in the DI’s “list of grievances.” Hence I propose a rereading of the preamble from the point of view of crucial concepts deployed in the list of grievances in terms of slavery and colony. More specifically, I trace the performative speech-act maneuvers by which the institutions and customs of American slavery and colony are put beyond contestation.

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3 Notice that in the field of representations, there is an ongoing reference to the Wild West that needs to be conquered again and again in popular cultural productions of Hollywood films.4 Notice the change from British common law that protected the life of all persons (17th century) and the subsequent adoption of the Roman law of slavery which reduced slaves’ legal status to either property orwild beasts in T.Jefferson’s homestate Virginia(end of 17th century)(Finkelman, 114).

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First, I start with clarifying a few concepts such as colony (why not colonization, imperialism) and give a little bit of a background on natural law/rights theories pertaining to the DI. I also address the historiographical context of the DI via Lincoln in order to show just one incident of the overlap theory and practice, and particularly how slavery and colony may be integral part of one type of American liberalism that may better be called republican liberalism. Republican liberalism combines natural rights with political acting of the people in concert in the name of self-government.5

As to the definition of colony: On the one hand, in terms of geopolitics it may be designated as the territorial dependence of one country upon a mother-country ruled at a distance, which might entail more or less self-legislation on the part of the dependant state.6 (Recall that at the time of the American Revolution, the great controversy raging in the American colonies regarding their relations to Great Britain was whether the colonies were indeed under English imperial rule or independent to begin with.7) On the other hand colony may be described in terms of the cultivation of the soil settled upon at the outer frontiers of a respective territory.8 (via lawfare (see below)).

The third and main meaning of colony (extending upon the second definition) in the context of the American DI refers to settlement at the outer frontiers that is accompanied by a process by which its provisory state is turned into a peremptory state. (It covers over the violence of settlement: also it legitimizes both “peaceful” settlement (right of life) and the violence involved in settlement into a pre-emptive right founded on the laws of nature). Colony is distinct from colonization in that the latter does not necessarily involve permanent settlement, a permanent

5 To be sure, today there are many strands of American liberalism, today they range from radical libertarian views (R.Nozick) excluding any state-interventions to liberalism (a la J.Rawls) that is compatible with state interventions insofar as they serve to improve the stances of those on the lowest levels of society to communitarian views that accept liberal values at the minimum- see M.Sandel, answering his liberal critics.6 There are precedents to this issue in law-of-nation writers such as Hugo Grotius who claimed that a “new people arises possessed of its own rights “with the establishment of a colony. H. Grotius, De Jure Bellis Ac Pacis, trans. Francis W. Kelsey, II (Oxford, 1925), 264 (in P. Onuf, Towards Federalism: Virginia, Congress, and the Western Lands, in The William & Mary Quarterly, Third Series, Vol. 34, No.3 (Jul., 1977), 359, fn 177 As many proponents of independence such as T. Jefferson and J. Adams argued the colonies were never conquered - after all they emigrated and settled on their own allegedly “without any assistance” from Britain. T. Jefferson, DI 1776, ibid.; T. Jefferson, A Summary View of British Rights, 1774, ibid. Consequently their relationship to Great Britain is viewed as exclusively based upon contract, that is individual charters with the British King (J.Adams: “King of Massachusetts, King of Rhode Island, King of Connecticut … is no absurdity”) thus denying British parliament any right to pass legislation because the Americans were not represented. John Adams, Novanglus, No. VII January 1775, Great Neck Publishing 2009

8 This refers back to the “Roman colonus” that initially entailed some amount of overlap with slavery and attachment to the soil. For even though the Roman colonus was “originally a free person who took land on lease” and who as a “cultivator” was “attached to the soil, and transmitted his condition to his descendants” it merged with their status as “rural slaves” in the order of coloni.” “Coloni appears to have been composed partly of tenants by contract who had incurred large arrears of rent and were detained on the estates as debtors (obaerati), partly of foreign captives or immigrants who were settled in this condition on the land, and partly of small proprietors and other poor men who voluntarily adopted the status as an improvement in their position.” In Webster Dictionary, http://www.1911encyclopedia.org/Slavery (01.22.2010)

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http://www.1911encyclopedia.org/Slavery

http://www.1911encyclopedia.org/Rent

http://www.1911encyclopedia.org/Cultivator

http://www.1911encyclopedia.org/Lease


establishment of a political order, but only a more or less peaceful/violent use/occupation of land, to be abandoned at will.

As to the definition/specificity of American slavery, (I presume that everyone to know) I would like to point out just two crucial aspect of American slavery, namely the indefinite, indeterminate status of slaves according to the laws of the American colonies (see Finkelman), and the internal procreation and inheritance of the status of a slave qua birth (starting at the end of the 17th cent.).

2. Second, I explore the speech-act- performative maneuvers of naturalization and dehistoricization9 as related to slavery and colony. It bears mentioning that analysing the DI in terms of performativity of speech is nothing new. Indeed, I find myself in a most prominent tradition of interpreters: H.Arendt, J.Derrida.10 Both emphasize different aspects of speech-acts – from constative to performative – with different intentions and results, they share a focus on the DI’s preamble in its reference to the absolute and divine. (details will be outlined below)

My interpretation differs from theirs11 at least in two ways. First, I attempt a re-reading of the DI’s preamble from the point of view of the DI’s list of grievances” (that has been neglected by H.Arendt and J.Derrida). I am looking at the ways by which the preamble of the DI is contextualized/contextualizes itself in the DI’s “list of grievances” and, conversely, at how the complaints in the list of grievances may shed light on the conception of natural rights declared in the preamble. Second, I engage in a re-reading of selected passages of the DI in terms of slavery and colony.

3. Third, I discuss colony and slavery to the various contexts of lawfare and warfare in the DI while at last proposing the new conception of natural lawfare. The conception of natural lawfare attempts to explain the hybrid/ambiguous position of African Americans and Native Americans at the borderline/grey legal space between natural law/rights and positive law. Due to their stance they are subjected to the “executive right of nature.”

9 Naturalization and de-historicization, are crucial for R.Barthes concept of myth. Myth explicitly does not refer to the stories of gods and heroes. Instead they refer, in a postmodern sense to the signs, or more specifically the signifiers on the surface that get reified by hegemonic interpretations. Accordingly they attempt to present themselves as immutable, eternally true. It is based on the assumption that there is no “deeper” meaning or truth “behind” the signs. R.Barthes exemplifies this insight by reference to the famous front page of the Paris Match that depicts a black soldier saluting the flag. Given the historical background of the Algerian colonial war, this image de-contests French imperialism- as if soldiers of all colors thankfully served the French colonial power. In terms of signification, the latter being the signified that in turn beomes a signifier gets quasi “frozen” in time acquiring a quasi-permanent status. As a result the arbitrary process of signification itself (!) is covered over and made appear as natural. 10 H.Arendt, On Revolution; J.Derrida; B.Honig11 And many others, I may add, depending upon whether they are adherents of political liberalism or of republicanism/communitarianism. While the former focus on the natural rights philosophy in the DI’s preamble, the latter focus on the common law tradition discernible in the DI’s list of grievances.

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1. Natural law and the utility of slavery and colony

First, I give you a short overview of traditional conceptions of natural law in order to provide a little bit of a background of the debate and to draw some connections to the DI.

1.1. Natural law- J.Locke, Hume/Wilson, RepublicanismI will cut a long story short, though: traditional natural law was divine law. The obligation to follow was therefore determined by God’s will. Hence the realization of natural law in the human realm was considered as reflecting God’s will and as constricted by it. However, with the onset of modernity/rationalism the matter changed. While natural law was still of divine origin it also became rational. Thus, once activated even God could not “justly” change it anymore (since it was God’s law after all and had to be rationally consistent). This opened the way to modern human conceptions of natural law that can be gained by human rational insight.

On the one hand, natural rights proponents (J.Lock)e presume that rational knowledge of natural law automatically makes one obey natural law. Moral sense adherents (Hume), on the other hand, show that one obeys because natural law fulfils one’s sense of justice and not because of rational insight into the right or wrong of a matter. Indeed, so the latter argue, nothing is in and of itself right or wrong, it depends upon the historical, social, political context (A sense of right of wrong, i.e. conceptions of justice, arise within a certain community). (see the utility natural law paragraph below)

I mention the natural rights tradition(Locke) and moral sense theory (Hume, etc.) because of the intellectual influence of Scottish Enlightenment on the American Declaration of Independence (DI). (I just briefly point to the influential tradition of republicanism because of its lack of considerations of natural law – except H.Arendt who I will briefly discuss below.) Arguably then the DI might be called an amalgam of natural rights individualism (as in J.Locke), Scottish Enlightenment conceptions of community /sociability, and republicanism.12

How are the DI’s reference to the “laws of nature” and “nature’s God” be interpreted against this backdrop? The DI raises the question as to divine or human origins of natural law and, possibly, of a Deistic interpretation. According to a deistic approach God leaves his creation alone as long as the laws of nature rule, yet the latter being certified by the authority of “nature’s God.”

12 See also Zuckert, Michael, Natural rights Republicanism, who, however ultimately favours the individual rights approach; Maier, Pauline, The Natural Rights Republic…

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Returning to the comparison between the two traditions, namely natural rights and moral sense theory: T.Jefferson’s trias of inalienable rights of “life, liberty, and the pursuit of happiness” in the DI may be viewed as a reformulation of J.Locke’s trias of natural rights of “life, liberty, and property.” Also the right of revolution declared in the DI closely resembles Locke’s right of revolution against a government that violates these rights. By contrast, the “pursuit of happiness” (notice: at issue are not just the rights but the happiness of a political community even though the “pursuit” does not really fit in)13 and Jefferson’s (the main drafter of the DI) statement that in the DI he just speaks the “common mind” (thus merely articulating the common sense feelings of justice in this matter) may point to the moral sense tradition. Furthermore, the fact that the DI does not just intend to change a government, but to replace the monarchical with the republican principles of governance, points to the Whiggish republican elements in the DI.(because of time constraints I cannot explore the intricacies of these traditions in detail) All in all, natural law conceptions of justice in the DI, in contrast to a merely Lockean natural rights individualist view (in which rights are innate and can therefore not be abrogated by “positive” law), may to a certain extent be reconcilable with utility14 and the principles of republican self-government. Conversely, in contrast to “pure” moral sense theory, it might be compatible with natural rights.

Why is this important? It is important because traditionally utility (moral sense theory) and natural law are regarded as opposites. Accordingly, the question of slavery and colony would be conceived in terms of utility only (a la: slavery and colony are useful for the American settlers, colonizers, slave-owners - no questions as to in/justice of their undertakings being asked). Thus discourses of utilty (as e.g. found in moral sense theory) would be removed from questions of justice (i.e. from questions of right and wrong that can be gained by rational insight- as opposed to customs of the social political community out of which conceptions of justice – following moral sense theories- arise to begin with; this distinction is one between absolute, universally valid conceptions of justice and those relative to the particular context of the community). Likewise, from the point of view of republicanism there are no natural laws (no egoistic pursuance of individual rights and profits) nor is political acting defined in terms of utility (in the sense of private gain). Instead at issue is whatever a free people decide in the course of self-government (acting together in concert in public-H.Arendt) for the sake of the whole political community. Abstract universal principles of justice do not play any role in this account.

But if one grants the possibility that natural law and utility are not any longer mutually exclusive - insofar as rights may be inalienable and 13 However, this reading is in contradistinction to republican conceptions of public happiness that entails citizens’ political involvement in matters of public concern.14 This does not imply that they are founded on utility as in the subsequent tradition of utilitarianism. Instead they might be based upon inalienable rights yet still be deployed in terms of utility. Buckle, Stephen, Natural law and the Theory of property, Grotius to Hume. Oxford Clarendon, 1991

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founded in nature, but may also be put to a certain use- then the in/justice of slavery is not an abstract matter any more but may be considered within the field of practical use (utility) of a self-governing people.(see Lincoln- paragraphs below) One may simply presume, as a start, that they are neither in principle irreconcilable nor in historical practice; indeed their reconcilability may be a characteristic feature of US-American discourses of political/republican liberalism. To the extent that the principles of justice are deployed within a particular historical context they may be interpreted as historically relative “universal” principles. The same might apply to the “laws of nature” and “nature’s God” in the DI.(I am going to discuss the impact of these considerations below in the passage on performative maneuvers, especially with regard to J.Derrida.) 1.2. Lincoln- ex post facto rationalizations?Slavery is regarded, most prominently by US American president A. Lincoln “as violating the natural rights of liberty and equality of the American slave population.”15 On the one hand the recourse to slaves’ natural rights contributes to presenting slavery to be no more than a practical shortcoming. On the other hand, a Lincolnian as well as a Jeffersonian account may also demonstrate the ways in which the DI’s natural rights principles are closely intertwined with their application/realization in practice in terms of the republican principles of self-government. According to Lincoln the just application of the doctrine of self-government depends upon “whether a negro is not or is a man” and he concludes that “if the negro is a man, is it not a total destruction of self-government, to say that he shall not govern himself?”16 (Am I allowed to use the n* word, even though it is a citation?) He continues to state that it is one of the “nation’s founding principles that all men are created equal” (the “ancient creed” – referring to the DI) and therefore one cannot justly make a slave of another.

Thus the political practice of self-government has to live up to the just principles of the DI transforming the latter into practical principles, i.e. principles that serve as guidance to practical political acting. This coincides with the “norms of practice” alluded to in the introduction (See ad correlation “theory” and “norms of practice”) Following A.Lincoln, the American type of liberal republicanism may have never been abstract/universal to begin with (unlike liberalism based on J.Locke) and may have never been concerned with individual natural rights (universally valid) only. Instead they may have always been aiming at their realization in a self-governing free polity. Evidence for this can be found in Jefferson as well given that his aim was a certain politics enacted in the “here and now.”17 15 E.g. Belz, Herman, Abraham Lincoln and the Natural Law tradition, http://www.nlnrac.org, URL: 10.3.201416 A.Lincoln, Peoria, Ill, Oct 16, 1854 against senator Douglas’s Nebraska Act and the opening of further territory to slavery17 Jefferson even denies the possibility of practical political principles of republican self-governance extending further than one generation. Indeed, the law of nature rules between the generations.

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http://www.nlnrac.org/


However, at closer inspection one can discern various performative contradictions and ambiguities in the statement/utterance above “whether a n* is not or is a man,” exemplifying yet again the status “in between.” Also notice the use of the conditional form in “if the n* is a man” as if a black person’s status as man were a hypothetical matter, as if there were reasons to doubt. Add to this the multiple, contradictory negatives in the statement “if the n* is a man, is it not a total destruction of self-government, to say that he shall not govern himself,” in which there appears to be an emphasis on the act of “say(ing) that” more than on the “govern(ing) himself” (i.e. the content).

Furthermore, does it matter that this insight emerges from a retrospective point of view? And that, as a matter of course, it is a case of selective retrospective historicization and ex post facto rationalization on part of Lincoln; of appropriation of the principles of the “sacred tree of liberty” that needs to be refreshed with the blood of revolutionaries from time to time, as T.Jefferson remarks for a certain political purpose? thus covering over the ways in which these very principles serve to justify slavery and colony in the name of “laws of nature” and “nature’s God.” Conversely, the mere fact of ex post facto rationalization does not per se preclude the possibility that the natural rights principles of the DI may be deployed for emancipatory purposes.

If slavery and colony are legitimized as exceptions (see Locke’s state of war and defense of property) permitting the executive right of nature in the name of natural rights, then how can these same(?) principles be deployed to do the opposite, namely to abolish slavery. In the end, as a matter of historical fact they did not, only a violent war (of secession) would result in abolition. For as A.Lincoln stated his uttermost aim was the preservation of the union, disregardless of whether this aim would be achieved by abolishing slavery, by keeping some enslaved and liberating others, or continuing with slavery altogether.

(The ambiguity involved extends to A.Lincoln’s personal stance on slavery. Despite his personal abhorrence of slavery, he still insists on blacks’ physical etc. inferiority and the impossibility of granting them equal rights in the polity, clearly asserting white rule over them while simultaneously arguing against the extension of slave-states.18 He shares this ambiguity with T.Jefferson who asserts blacks’ physical and moral inferiority while at the same time “trembling for his country that God may be just.” This statement refers to slave-holding not only as a sin but also points to the necessity that this abominable condition will eventually find a violent end.

Indeed, it appears to be the case that this very ambiguity, exhibited in the co-presence of natural rights/law “rhetoric” and slavery and colony may be guiding principles of personal if not political action. Morally justifying both taken together - taking it as an excuse, blaming oneself for

18 A.Lincoln Peoria, 1854

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these horrific practices, declaring oneself to be committed to these rights yet, at the same time insisting on the necessity to perpetuate these for the sake of the preservation of life, liberty, and the pursuit of happiness in a polity governed by free white propertied men. Given that this ambiguity may very well be characteristic of American republican liberalism then slavery and colony are compatible with the latter!)

2. Performatives/Constatives In the following I am going to outline first, H.Arendt’s and J.Derrida’s considerations as to constative and performative dimensions of speech-acts in the context of the DI.19 The constative refers to statements of fact, which can be considered in terms of truth or falsity. The performative, by contrast, refers to utterances in which the saying is a doing. Second, I am going to develop an alternative performative within the context of what African American scholar Toni Morrison called the “spoken un-spoken.”

2.1.H.Arendt is the first to point out the performative and constative dimensions in the DI. For the DI is “the perfect way for an action to appear in words” (performative) in contradistinction to its being “an argument in support of an action.” (constative) (127, On Revolution) The American colonies’ very performative act of declaring independence from Britain amounts to enacting independence. According to Arendt it is this a performative political act as it is “one of the rare moments in history when the power of action is great enough to erect its own monument”(127, On Revolution) Arendt locates the American Revolution and the DI within the tradition of the absolute,20 “from which to derive authority for law and power”(160, On Rev.). The question concerns the “origin of power which would bestow legitimacy upon the powers that be”(159, On Rev.) Notable in regard to the DI’s preamble is the reference to the “laws of nature” that need legitimacy of the “higher law”(Arendt) of “nature’s God” for justifying American independence. Arendt resolves the problem of the absolute by praising the DI and the American Revolution as performative political “ act of foundation”(196, On Rev.), that is, as being a paradigmatic act of republican self-government.21 The way in which the performative overrides the constative can also be discerned in her rendering of the DI’s famous utterance “We

19 Following J. Austin’s theory of speech-acts, they do not attend to his distinction between locutionary/ illocutionary/perlocutionary speech acts; the locutionary roughly corresponding to the constative, the illocutionary to the performative (I promise), and the perlocutionary speechact in its consequentialist dimension(“look at what you are doing” may have the effect of my stopping my work and looking to see whether I have spilled coffee…-A.Crary, p.70) 20 This is so even though it did not have to struggle with the tradition of absolutism as the French Revolution.21 Notice that participation in politics is the precondition of individual liberty. In this regard republican politics is associated with a positive concept of liberty.(Arendt) However, republicanism may also defend a negative conception of liberty in the sense of liberty as non-interference (Q.Skinner) or as non-domination (P.Pettit).

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hold these truths to be self-evident that all men are created equal, …inalienable rights of life, liberty, and the pursuit of happiness.” While appearing to assert absolute universal truths, Arendt would, by contrast, emphasize the fact of “holding” of these truths relative to the political community that had just constituted itself/been constituting itself by acting together in concert in public (rather than the “truths” or their supposed “self-evidence”).

J.Derrida focuses on the tension between the performative and constative in an attempt to show how the absolute and truth (associating the latter with the constative) is replaced/ substituted by the force of the performative utterance. Against the backdrop of the Euro/American-metaphysical tradition of the absolute, Derrida points to the epistemic violence and arbitrariness of the act of founding. He identifies the appeal to the laws of nature, nature’s God, and “self evident truths” as dangerous self-justificatory act of the American people, in which the outcome of the performative act of declaring oneself independent is already anticipated from the beginning. The newly constituted political order based upon freedom of a self-governing people covers over the bottom-less, unfounded foundation of political authority. Demonstrating the violence of the origin via this performative act,22 the force of the absolute is reinstalled by reference to truth.23

How do H.Arendts and J.Derridas accounts fare with regard to the questions of slavery and colony?H.Arendt does not mention these phenomena in the context of the DI. However, in an attempt to explain the difference between the violence of the French Revolution and the relatively peaceful American revolution, she attributes the absence of violence in the latter to the fact that it did not have to deal with the “social question.” She concedes though that the “absence of the social question from the American scene” is quite “deceptive” and that “abject and degrading misery was present 22 One might briefly mention B.Honig’s interpretation of the DI, who, following H.Arendt as well, attends to the performative speech acts in relation to the DI by exclusively focusing on promising and story-telling. Completely leaving out the constative that she associates with objective truth, her account sheds any tension with the constative/absolute and results in an agonistic account of politics.23 J.Derrida’s textual interpretation could be confronted a Skinnerian contextul account, in which “speech-acts” are supposedly rendered historically plausible. Q.Skinner, while not explicitly speaking of the DI, offers a historical method of textual interpretation based on J.Austin’s speech-act theory. In a move against a-contextual political theorizing, he attempts to make plausible the meaning of a text exclusively within its historical context. (This is to be viewed in contrast to the hermeneutical tradition in which the meaning of a text can be recovered only through today’s lenses). More specifically, he is keen on identifying the social and historical discursive conventions, against the backdrop of which a particular text may be interpreted. He takes into consideration not only the locutionary meaning of a text (as statement of fact that can be true or false) but also the illocutionary force (an utterance that is doing something by saying something – persuading, convincing,… (performative). Skinner’s account is based on the assumption that the possible (rational) intentions an author might have had in conveying a message could be retrieved. In the end, however, it is not clear how the rationalist intentions (thoughts) of an author, uttered in illocutionary speech-acts (a-historically adopted from J.Austin’s speech-act theory) really translate into action (again following a contemporary model of a philosophical theory of action contrary to his own assumption) within the field of history. Furthermore, even if this model had some validity the question remains according to which criteria the multifarious historical context can be closed down (at some point one must start to focus on one dimension rather than on another).

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everywhere in the form of slavery”(65, Arendt, On Revolution) …”the slave, not the poor man, was “wholly overlooked”(66). (By contrast, the violence of the French revolution that resulted from the social question was explicit and had a succinctly identifiable enemy.) The structural violence of slavery and colony may not have been so obvious. As to the issue of colony Arendt is more explicit. From her statement that violent actions at the frontiers can be attributed to acts of individuals only (as she states “however criminal and even beastly the deeds might have been that helped colonize the American continent, they remained acts of single men”(88, On Revolution) and not to collectives (“political behaviour of organized groups”) one can infer a “blind eye” to the complexities of colonial conquest.24 These considerations may be plausible with regard to British imperial law insofar as the latter provides over clear territorial boundaries within which the rule of law reigns and insofar as it does not concern itself with territories beyond/at the frontiers.25 Yet this view cannot be maintained with regard to the American settlers/colonizers who (as Arendt remarks) are familiar with “violence and lawlessness” in the “unstoried wilderness” of the American continent from the beginning.(88, On Revolution) As matter of fact, precisely by designating wilderness as “unstoried,” Arendt removes wilderness from the historical, social realm into the state of nature - rendering it innately and permanently violent and lawless. In other words, she fixes (naturalizes) the difference between violence and law by establishing a binary, mutually exclusive opposition between them. Hence she ends up introducing the absolute into the realm of politics.

This is in striking contradiction to her conception of the political, which is open-ended and dependent upon the people as self-governing. What is to count as political agenda cannot be determined in advance but emerges during the course of the people acting together in concert in public. Correspondingly there are no issues that can be regarded as a/political beforehand or can just be removed at will. A paradigmatic example for this sort of political acting is the American Revolution and its founding of a “constitutio libertatis,” in which ”men” were joining “themselves together for the purpose of action”(174) However, speaking in terms of the political, blacks and Native Americans would not be admitted to have a voice or a possibility of participation in the newly self-governing community.26 Given Arendt’s blind spot in her republican political theory, her lack of attention to the issues of slavery and colony in the DI does not come as a surprise.

24 Arendt only concedes that if these criminal acts “gave cause for generalization and reflection” these were “perhaps upon some beastly potentialities inherent in man’s nature”(88, On Revolution); she also rejects a Hegelian account of history as “historical necessity” enacted via “crimes and criminals”.25 However, it is controversial whether a clear line of demarcation can be drawn between conquered lands, in which the rule of law reigns and the territories beyond , in which the violence of the men at the frontiers prevails.(John and Jean Comaroff)26 This blind spot of republicanism has been pointed out by African American scholar Derek Bell (see also E.Foner).

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Presumably Derrida can accommodate colony and slavery by subsuming it under the general epistemic violence of the founding and its ensuing closure. However, he cannot sufficiently explain the specificity of these acts of (structural) violence and the specific ways in which slavery and colony were (morally) legitimized in the DI.

For both, Arendt and Derrida, do not pay sufficient attention to the constative/absolute dimensions of slavery and colony. Derrida: This is due to his focus on the rejection of absolute objective truth; by thus reducing every account of truth (in terms of epistemic violence) - in the wider sense of utterances in language/ and statements somehow relating to the world out there - to absolute truths (interchangeably with objective truth), he does not pay enough attention to historically socially relative truths. He is correct in revealing the performative dimension of the DI’s appeal to the “laws of nature” and “nature’s God,” its pretence to guaranteeing the truth (constative) of the American colonists’ upright intentions; thus covering over the violence performatively enacted. As a result, however, all truth is asserted as absolute ex negative; emphasizes the performativity of the text. Derrida’s important contribution to the debate is the violence involved in policing the boundaries of absolute truths and of every act of founding of political authority. However, his overall critique of metaphysics does not allow him to consider the specific ways in which the violence of slavery and colony are removed from political historical contestation in the DI. Arendt: by virtue of her republican conception of participatory politics there is no place for constatives such as slavery and colony that are introduced to the political debate beforehand. Hence due to her focus on American republican politics and the self-governing people’s great act of founding a “constitutio libertatis,” underestimates the “constatives” of slavery and colony. While she rejects absolute truths she underestimates the historically relative, though persistent “truths/facts of slavery and colony” that are reaffirmed/reinstated in the newly founded republic.

2.2. “Spoken un-spoken” – an alternative performative

In order to show how natural law is contextualized in the DI I turn first, to the performative speech-act maneuvers in the DI and thereupon to the DI’s crucial concepts of lawfare, warfare, and natural lawfare, in which these are deployed/enacted.

As suggested earlier, I am looking at the ways in which the natural rights/natural law in the DI’s preamble are contextualized in the DI’s list of grievances. It is my point of departure that the political, legal, para-legal, legitimate and illegitimate acts supposedly committed by the British Crown against the American colonists and invoked in the DI’s list of grievances shed light on the natural rights/laws proclaimed in the preamble.

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Furthermore, given the context of political independence and war, these are not innocent, neutral speech-acts but performative(illocutionary- the saying is a doing) - and they are a call to arms (perlocutionary, i.e. that might result in some actions as a consequence of this), a call to independence and framed in terms of declarations of war. Crucial is the appeal to and the invocation of irregular warfare (police actions, piratical warfare…) of which the British Crown and “others” (“Indian savages,” and other insurrectionists) are accused. The invocation of irregular warfare serves to present the American colonists as victims and to justify American colonial self-defense in the name of natural law/rights.

I am starting with passing a few comments on the DI and its correlation between the preamble and the list of grievances.

DI as performative speech-act

As to the DI, the very discursive conventions exhibited in the DI’s list of grievances (that follow a long tradition of making appeals to the British Crown as well as declarations of war in the 18th century) apply to the DI’s preamble insofar as they enable the formulation of the “laws of nature,” “nature’s God,” and “inalienable rights” to begin with.27 Crucial is the way in which the preamble and the list of grievances are presented in tandem - for the discursive (not only!!) conventions are adhered to and simultaneously transgressed by the invocation of “nature’s God.” (the latter of which introduces the novel and the absolute) What we see then may be comparable to the exercise of systematic doubt/complaints, i.e. performing the very stripping of the American colonists’ rights by the British Crown that finally results in the establishment of a new foundation of the political order to come – based on the “laws of nature” and “nature’s God.” In a complex interaction of the tenses, the list of grievances serves to establish what will have been anticipated and been taken for granted to begin with (see J.Derrida), namely revolution and political independence of the American people authorized by the “laws of nature” and “nature’s God.” Thereupon the relation of the preamble to the list of grievances is severed while simultaneously remaining dependent upon it.

The DI’s preamble starts with an appeal to the “laws of nature” and “nature’s God” justifying the move to political independence and the appeals to the “inalienable rights of life, liberty, and the pursuit of happiness”. Important here is the reference to God that underpins the laws of nature. It points to the fact that the laws of nature are not valid in and of themselves but need authorization from some “higher” source.28 These appeals to inalienable rights are contextualized by the DI’s “list of

27 This way of getting to the “truth” of the matter might be methodologically comparable to Rene Descartes’ systematic doubt, a method by which he divests himself incrementally of all historically, socially contingent bodily matters until finally arriving at the ultimate instance that cannot be doubted, the guarantor of truth of his being, namely God. 28 I do not need to expound any further than that at this moment since, after all I’m facing an American audience who knows these lines by heart. Speaking in a Jeffersonian vein, that he was ”not saying anything new” but intended the DI to be just an expression of the American common mind…so to say

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grievances.” I propose a rereading of the preamble from the point of view of crucial concepts deployed in the list of grievances, i.e. I attempt to take a fresh look at the DI in terms of slavery and colony. The DI’s list of grievances complains that the British Crown keeps the colonists from “further acquisition of land, further migration to the frontiers and populating of territories beyond, naturalization, etc.” It also reports/complains about “Indian savages” attacking presumably innocent people (women, children, and the elderly, i.e. non-combatants) at the frontiers. Last, it explicitly does not speak/ keeps silent about slavery – referring only implicitly to the subsequently excised passage on slavery, which T.Jefferson included in the DI’s rough draft but does not appear in the final document of the DI. Therein black people /Africans are declared to be endowed with “the most sacred rights of life and liberty.” Yet at the same time they are condemned because of their alleged attacks on “their” masters.

Significant in the DI (as already alluded to above) is the Africans’ status “in between” the “most sacred rights” as humans according to the laws of nature and their sub-ordinate status as humans, chattel, animals, wares…according to the positive laws of the American colonies. Something similar applies to Native Americans whose natural rights as humans are recognized (e.g. by T.Jefferson and B.Franklin) ) while simultaneously declaring them to be “savage Indians” in the realm of positive law . While slaves’ ambiguous status is the script underlying the final version of the DI, in which slavery (and more particularly, its ambiguity!) is officially excised, Native Americans status only appears to be more straightforward.

The reference to the” laws of nature” and “nature’s God” serve a specific purpose, namely to cover over the constructionist, interpretative, non-natural meaning of the DI and, in particular, to present slavery and colony as unalterable, to be taken for granted (presuppositions). The DI’s performative maneuvers aim at covering over any ambiguity thus reifying, and, indeed adducing additional justifications of slavery and colony.

These speech-acts are not neutral but deny the violent impact of these legal claims as well as of the speech-acts themselves. They are not violent in and of themselves and do not necessarily result in violent acts. Yet they would be meaningless were it not for the practices of appropriation of land and slavery and, most importantly, for the prevailing justifications for the further appropriation of land and slaves in the name of the “laws of nature.” Accordingly they cannot be neatly separated from the then prevailing violent para/legal practices and customs. The latter are based on norm of practices that are guided by the “laws of nature.”

For the complaints in the DI’s list of grievances do not just reflect the acts of naturalization, further acquisition of land etc. (constative) but also produce these via performative speech-acts. Yet this is not all, they

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invoke these para/extra/legal practices and conventions and reinterpret these in terms of rightful, legitimate claims based upon their natural rights to life, liberty, and the pursuit of happiness.

It is not clear that the DI’s drafters are able to authorize themselves29 and its audience to attack, punish slaves, “Indian savages” and other internal enemies (such as loyalists and slaves) who engage in insurrections against the American colonists. Violent speech does not necessarily result in violent acts because the relation between speech and action is contingent given. There may be infelicitous speech-acts (Austin) that “fail” for different reasons; the incitement of irregular warfare might simply be an “unhappy speech-act. However, at the minimum a performative speech-act may be constructing such a position (irrespective of whether such a position may actually be held or not). Correspondingly it cannot but draw upon predominant meaning, favoring one type of interpretation over another.

The fact that the DI authorizes the American colonies via recourse to the natural right of self-defense, points to the para/legal dimension involved. The licence (or even duty) to act in self-defence applies only if the American colonists are attacked first. Therefore by presenting themselves as victims of attacks in the DI the American people’s self-defence receives a moral legitimation. More specifically, by accusing the British and various insurrectionist to engage in irregular warfare (piratical warfare) they in turn justify their own irregular warfare against their “enemies.” While the DI is not legally binding, it permits, if not requires (for it a duty according to natural law) self-defense in the name of the natural rights of life, liberty, and the pursuit of happiness. The American colonists would be allowed to react as if in a state of nature and exercise their” natural executive right” (e.g. irregular warfare).

However, one needs to distinguish between performative acts by which settlers perform their status as victims whereas “Indian savages” and slaves are presumed not to speak but act. These are performative speech-acts that entail a good amount of violence for there is a hierarchy of speech- there are those who speak and those who are spoken about, i.e. turned into objects via speech. To be sure, performative acts can reassert domination and hierarchy but they can also undermine these. Which one of these two contrasting meanings are finally adopted can only be decided by taking into account that these speech-acts are operating against a backdrop of domination, violence, exploitation, and occupation. Within it the natural law discourses and conventions of self-defense are well understood. Moreover, the DI, considered within the context of 18th cent. declarations of war and the American colonies’ struggle for independence, performed also a call to arms. Hence the DI as a speech-act cannot be separated from discourses and practices of war. These were predominantly enacted by militias via irregular warfare at the frontiers and elsewhere.

29 To be sure, the selves referred to are not the fully constituted political community yet but they do not need to be.

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The performative invocation of self-defense exhibits yet another problem. It is plausible that self-defense is allowed or even required in case of an actual attack as this is one of the natural rights one carries into the states of society. It faces two challenges. One, what happens if their supposed acts of self-defense are contradicted by the fact that they may have been the first attackers (those starting violent acts) to begin with, be it by “peaceful” settlement and belabouring of land or by conquest – both of which entails some amount of violence. Two, what happens if one considers for instance the American colonizers/slaveholders’ belief that their ingrained institution and customs of chattel-slavery and colony are under attack. Arguably this is a very different scenario and the argument of self-defense does not qualify any more because the natural right of self-defense remains contingent upon specific attacks. Hence, if it can be demonstrated that the DI aims at the defense of the institutions of slavery and colony then the argument of self-defense does not hold.

Furthermore, from the point of view of the list of grievances not only are slavery and colony –removed from contestation. Also the appeal to the “laws of nature” and “nature’s God” even helps to establish a pre-emptive right of colony and slavery. Their attempt to naturalize the difference between the “us” and “them” appears as evidence that the difference between the American colonizers/slave-holders is fixed in advance and not just a reaction to violent attacks. This is furthermore corroborated by slavery’s underlying script of the unavoidable war of the races (in the excised passage on slavery). Precisely because slavery and colony are being placed in the grey legal zone between natural aw and positive law violence results. For in the space “in between” the executive right of nature reigns – thus giving licence to irregular warfare.

Accordingly one can speak of natural lawfare: slaves and savages (first nations) are the American colonizers’ targets not because of their actions (such as alleged attacks on their masters or Indian savages allegedly attacking innocent settlers) but because of an “enmity in their being” (J.Locke). Indeed, the naturalization of this difference is one of the functions of natural law/rights in the DI within the context of the list of grievances. Naturalization involves presenting what is socially politically constructed as fixed, de-contesting, de-historicizing it, thus removing it from history and transforming it into immovable, inalterable, eternal features.

Significantly these performative maneuvers of naturalization, de-contestation, de-historicization are not just speech-acts (in the case of which they could just be reduced to semantics). Instead in the DI they are to be considered within the context of declarations of war and as such a call to arms that instigates the executive power of the laws of nature and thus the authority to punish those who transgress the laws of nature. (natural executive right- Locke, Grotius).Notice, the authority to punish does not necessarily require a central sovereign power holding the

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monopoly of violence as in developed states of civil society; rather it relegates the authority to punish to those operating in the gray legal space of “territories” (not yet officially incorporated into the colonies) and slaveholding for these are privatized relations).

3. Lawfare, warfare, natural lawfare

In the following I explore the concepts of lawfare, warfare, and natural lawfare as deployed in the DI in detail. I first turn to

3.1. LawfareLawfare/law in the context of the DI is(epitomized by “contract’s capture of land”)30 and including appropriation of land legally approved by the British Crown and “contract’s capture of humans” including the slave-trade legally approved by the British Crown).

Colony“He has endeavored to prevent the population of these states; for that

purpose obstructing the laws for naturalization of foreigners; refusing to pass others to encourage their migration hither, & raising the conditions

of new appropriations of lands.”(DI 46-49)First I am turning to “contract’s capture of land”: In the DI’s list of grievances the British Crown is accused of keeping the colonists/colonizers, settlers from doing what they wish to do, namely engage in: - further acquisition of land (in need of legalizing), - naturalization, - migration/populating the frontiers (DI) These appear to be – and so they are presented- instances of peaceful settlement of land, legalizing of property in land (the right to which is acquired by cultivating, belaboring it), and legalizing (naturalizing) of persons populating the frontiers (“no man’s land”). On the face of it then these can be called instances of law. How does lawfare enter the picture?

From the point of view of the settlers/colonizers their greed for new land (implying legalizing it) was severely restricted by the British. This refers to the historical background of the Royal Proclamation 1763 that occasioned the call for the above legal measures required by the colonists in the DI. In the Royal Proclamation 1763 the British Crown attempted to stop further territorial expansion (behind the Appalachians), even reversing some former territorial gains.31 Henceforth “facts” created “on the ground” would not any longer be legalized by the British as a matter of course. Thus, given the colonial context of appropriation of land, the 30 C.Tomlin uses this concept in a critical sense: it is based on W.Hirst who uses it in an affirmative way. 31 To which extent it managed to keep expansion in check is certainly a matter of debate. At least it constituted an attempt to do so even though, undoubtedly, serving British interests.

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laws confirming property in land (created ex post facto) are revealed as instances of lawfare (regardless of dis/approval of the first nations’ use of these lands in common).

Accordingly, lawfare relates to two aspects, first, as just mentioned- ex post facto laws conferring property status to used/occupied/conquered land (whether by peaceful means-as is alleged by the use legal terminology - or by violence- remains unaddressed; whereby the violence engaged in may be attributed to the violence of the “origin” of a political order and may therefore be neatly separated from law proper, in fact, expelled from the latter). Second, lawfare could relate to the following ambiguity. Colonial expansion legally approved by the British Crown AND general tolerance by the British of further incursions into territories beyond law were taken for granted practices. While the latter was operating in a quasi grey legal space, it must have at least tacitly been approved (that is one possible line of reasoning). Insofar as this is the case, violence cannot be viewed any longer as the outside of law but may be intricate part of it. (how to distinguish this aspect of violence from warfare is going to be addressed in the section below on “warfare,” suffice it to say at this point that their overlap, at least partly, may not be coincidental).

In light of the appeals to the “laws of nature” and “nature’s God” in the DI, the British Royal Proclamation 1763 may have constituted a decisive infringement on what the American colonizers perceived as their rights for the following reasons. On the one hand the British had attempted to limit colonial expansion by legal authority (arbitrarily- in the colonists view). On the other hand they had also tacitly permitted the colonial expansionary practices of individuals operating in a “grey legal space.” Thus the violation of their rights consists in British interference in the combined legal and beyond legal practices - making both together explicit while putting severe restrictions (if not a halt) on both existing and future non/legal colonial practices that had been operating in the “grey legal space” or legal loophole. British rule, even though having prepared the ground for it, would henceforth not any longer allow irregular, privatized colonial lawfare in a “grey legal space.” (indeed, Britain was threatening to outlaw these practices)

SlaveryNow I am turning to “contract’s capture of humans” via the slave-trade (legally approved by the British Crown? Was it still?? Yes) that can be found in the DI’s passage on slavery that was excised in the DI’s final draft (upon pressure of the Southern slaveholding colonies). How and why can one talk about slavery and slave-laws given the fact that they are not officially mentioned in the DI?I base my account on T.Morrison’s considerations of the “spoken un-spoken”…which gives an account not only on what is spoken about explicitly (by putting it into words) but also what remains un-spoken, left unsaid, maybe meant, referred, impossible to be/speak.…According to T.Morrison these are the characteristic ways by which African Americans

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haven been excised, erased from historiography – denying their status even retrospectively. Furthermore, the other reason why one can speak about the subsequently excised passage on slavery is precisely because of the way in which slaves are placed into a “grey legal space” in which their status remains ambiguous. This also points to the practices of US-slavery that are one the one hand barely legally regulated, or if so, only in contradictory way, and on the other hand leaving it to the slave-owners/dealers to decide, determine their status as property at will.32

In the DI’s list of grievances the British Crown is accused of keeping the US-American slave-owners from doing what they wish to do, namely

- continuation of American slaveholding (British inciting slaves to attack their masters)- increase of inner-colonial trade (stop the transatlantic slave-trade)- increase of number of slaves by “natural means,” i.e. by procreation (second meaning of naturalization)

These appear to be – and so they are presented – the US-Americans’ rights of slave-holding, legalizing of property in slaves (the right to which is acquired by “natural” increase of slaves via procreation),33 all in all “naturalizing” slavery in the colonies. Arguably these may be called instances of law in the sense that, at a minimum, the laws make possible the persistence of slavery. How does lawfare enter the picture?

From the point of view of US-American slave-holders their rights of slavery appear to have been under threat by the British. Recall also that British common law protected the life of all persons, including slaves (end of 17th cent), whereas the introduction of the Roman law of slavery for instance in Virginia slaves were turned into either “property” or “wild beasts.” (Finkelman, 114) The DI’s passage on slavery speaks of slaves’ ‘attacks on masters” allegedly incited by the British hereby referring to the historical incident of British Governor/General Hutchinson. He promised citizenship to slaves who were fighting on the side of the loyalists (on the side of the British). Hence US-American slave-holding/holders were presented themselves to be exposed to a double threat. Not only were they as slave-holding individuals turned into “victims;” also the institution of American slavery - if you will the “facts” of slavery created “on the ground” (handling slaves as wares) - would not any longer be tolerated by the British as a matter of course. Instead, slaves could even become citizens. Given the context of US-American slavery, the laws confirming property in humans (created ex post facto) are revealed as instances of lawfare.

Lawfare as related to slavery is exhibited in the ways in which the British handled slavery in two ways. 32 See P.Finkelman, P.Williams; Crenshaw33 Notice that according to British common law the children of male slave-owners and female slaves would be free. With the adoption of Roman laws of slavery in the American colonies the matter changed, children produced in such a relation would be born slaves according to the maternal line (17th cent.) and as such be treated like animals. (Finkelman, 114, ff)

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First, while attempting to appear keen on outlawing slavery in England34 the British did not interfere in US-American slavery. Rather they tolerated commercial transaction of slaves as wares and respected these within the laws of private property and right of individuals to buy and sell, even of such “particular ware.” Second, lawfare could relate to the following ambiguity. US-American slavery legally approved by the British Crown AND general toleration by the British of further increase of slavery beyond the law (such as via “piratical warfare,” condemned by T.Jefferson in the excised passage on slavery) were taken for granted practices. While the latter – slavery as “piratical warfare” was operating in a quasi grey legal space, it must have at least tacitly been approved. Insofar as this is the case, violence cannot be viewed any longer as the outside of law but may be intricate part of it.35

Arguably, by not interfering but instead permitting the buying and selling of slaves, the British more than tacitly approved of these practices. Likewise, the fact that slaves were arbitrarily designated as either humans(to be taxed and/or counted as votes), wares, animals (used for labor; or to be chased as wild animals when they attempted insurrections) points to the “grey legal space” operating in this matter. Yet, the fact that the British had outlawed slavery in Britain indicates their attempt at ultimately extinguishing slavery. While this in and of itself would pose a threat to US-American colonial practices of slavery, the even greater threat would be posed by the fact that the grey legal space of slavery (in which “the laws of nature” and natural executive right reign) could not be expanded any more at will, that is, that it could not be counted on any more without saying. All in all, the productive use of land, resting on the terra nullius or vacant land argument, could be turned into a legal relation by laws issued ex post facto. Even the DI’s appeal to the need of further acquisition of land + legalizing these acquisitions may just be interpreted in terms of the first meaning of lawfare. In other words, it can be aligned with a commonly held assumption (following the tradition of natural rights, contract-theories) that the law replaces the violence of the state of nature. While British legal colonial practices (relevant in the context of the DI) may have been accompanied by non-legal/para-legal/violent practices of land-grabbing, the violent practices of slavery and colony (as indicated above) are considered as not related to the legal practices, i.e. as external to British colonial law. However, the second meaning of lawfare raises the possibility of violence as prescribed if not made possible by law. The reversal of this logic, namely of law as separate from (even replacing/ contradicting) violence, to law as possibly continuous with certain forms of violence can be traced during the course of the DI’s performative manoeuvers. Hence, concluding with the first meaning of lawfare, multiple, though not necessarily oppositional, contradictory 34 Recall the Sommersett case of an emancipated slave in England (judge Lord Mansfield), which helped initiate the movement to abolish slavery (1772)35 It is not just as double moral standard on part of the British as T.Jefferson seems to imply.

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dimensions of meaning may be entailed – relating to customs between the settlers and Americas’ first nations such as buying and selling of land, and more or less peaceful trade.

However, in the following section we will see how, within the context of warfare in the DI, the matter changes into a binary opposition pitting “us” versus “them.”

3.2. Warfare

“[The King] has abdicated government here, by declaring us out of his protection and waging war against us.”

…“He has excited domestic insurrections among us, & has endeavored to bring on the inhabitants of our frontiers, the merciless Indian savages, whose known rule of warfare, is an undistinguished destruction of all

ages, sexes & conditions”(DI 76-79; 89-92)

Within the context of warfare the issue of violence ranges prominently. Moreover, warfare is structured according to the following binary oppositions: external/internal; regular/irregular, state-violence/violence exerted by pirates, insurgents, “Indian savages”(DI). The distinction between legitimate/illegitimate warfare in the DI serves to show that fighting the British is legitimate/whereas ”Indian savages’ indiscriminate warfare” is not. These binary distinctions are not neutral but hierarchical because they abrogate the rights of legitimate warfare to the first nations/inhabitants whose lands/territories have been invaded by the US-American settlers/ colonizers. Notice that the entire multifaceted paragraph on slavery is replaced (in the final draft of the DI) by the statement “he has excited domestic insurrections among us.” Furthermore, notice that the complex relations to America’s first nations are reduced to them allegedly being “merciless Indian savages,” whose “rules of warfare” aim exclusively at “undistinguished destruction” of non-combatants. Accordingly they are submitted to the simple logic of “us” versus “them,” which leaves no alternative ways of reasoning. As matter of fact it follows the logic of violence.Notice also that Jefferson regards the slave-trade in which the British engage in as an instance of “piratical warfare.” While rightly condemning the cruelty of the transatlantic slave trade, calling it “piratical warfare,” it draws attention to three other, though related, aspects of the dispute between Americans and British.

As to the subsequently excised passage on slavery:First, speaking in terms of performative speech-acts, the war waged by the British against the African people is put on an analogous level as the war waged by the British against the American people. For Americans are able to present themselves also as victims of the British Crown’s piratical warfare as if their status were the same or even comparable to those people that are victimized by the slave-trade. Viewed against the

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backdrop of the slave-trade and American slavery these are not just innocent speech-acts or semantics but operate within a social political historical field of violence. In other words establishing comparability within a hierarchical context amounts to downplaying the fact of violent domination. Furthermore it contributes to leaving unquestioned American slavery.

Second, “piratical warfare” presupposes regular, legal warfare. Correspondingly piratical warfare may be viewed as the flipside of the coin of war as state-action. In fact, piratical warfare challenges the state’s monopoly of violence at its borders and may therefore be regarded as lying between natural law and the positive law of the “state.” The colonists’ invoking of piratical warfare is yet another instance that serves to demonstrate the illegitimacy of British irregular warfare (police actions) against the colonists. Essential element of this piratical warfare is (as T. Jefferson alleges) the British inciting of insurrections against the colonists, i.e. encouraging slaves and loyalists to attack their masters.

Third, these in turn help to justify the police actions, i.e. irregular warfare, towards “savages” and other enemies within the colonies/colonized territories (“domestic (sic!) insurrections” to put it shortly), as in the final draft of the DI, officially permitted according to the rules of natural law, potentially enlisting the people at the frontiers for this purpose. All in all then warfare explains violence, the pitting of “us” against “them” but not how it is turned into new rule, removed from contestation via reference to the laws of nature and nature’s god; and, more specifically, how slavery and colony thereby receive a firm authoritative foundation. This is what natural lawfare might achieve.

3.3. Natural LawfareI propose to redefine lawfare and warfare as natural lawfare. While lawfare explains the way in which “contracts capture lands” and “contracts capture humans” (dealing with slaves in private commercial transactions (contracts), thus privatizing the relationship (de-politicizing it), the violence involved in these legal transactions is left out of the account (even though capture of land as well as capture of humans alludes to it). It appears to be an exchange of land or slaves between equals- disregarding the position of those involved in the trade or the wares traded (individuals of first nations selling their people’s land, slaves’ status as wares are simply presumed and not questioned). It fails to consider the significance of the violent outside of law (outlaw, pirates etc.) to the production of the law. As to warfare – while the violent aspects of warfare are recognized ranging from somewhat controlled police- and disciplinary actions to irregular militia, piratical warfare - its possible dependence upon law is left out of consideration. In other words, the dependence of warfare upon

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the law is being underestimated especially in regard to the ways in which arbitrary conquest and violence are turned into law (thus reifying hierarchical, unjust social relations by law).

The conception of natural lawfare, by contrast, builds upon lawfare and warfare, incorporates elements of both, yet supplements these in the following ways. It attempts to recognize the legal dimension of lawfare along with the structural violence involved without reducing law to violence only. Likewise it attempts to recognize the violent dimension of warfare along with the contribution of law in structuring violent relations presumed outside or regarded as the “other” of law - without setting it identical with law. Last it connects both with natural rights.

The concept of natural lawfare attempts to explain how the exception of creating facts on the ground (tacitly permitted by the British) is turned into a rule (so it could not be abrogated or revised at will any more). This required more than just legal change within the existing legal political order. It needed authoritative support/ underpinning by the laws of nature/nature’s God so it could not be altered arbitrarily. Crucial are the symbolic/discursive processes by which the terrible exceptions of slavery and colony are turned into rules that cover over its violence- insofar as they are getting endowed with the moral cloak of natural law. A further crucial element of natural lawfare is the dimension of “natural executive right.” Both together result in removing the practices and customs of creating “facts on the ground” from contestation: dehistoricizing, naturalizing it, fixing it, authorized by the laws of nature. Natural lawfare then addresses the pre-emptive dimension of violence and law in terms of natural law and the reification of hierarchical, violent relations in the law of the land. It morally encourages irregular law/warfare. It has no need of a sovereign/central authority ordering or directing the processes of land-grabbing and enslaving even though the latter may be rubber-stamped at some point (ex post facto).Its strength derives from the natural rights of life, liberty, and the pursuit of happiness in their “material”/substantive dimension.

Natural lawfare/ mix of the former, with a firm foundation in natural law…moralizing (specifically directed at those in between/”hybrids”/in a legal “grey zone….) to explain how the provisory is turned into a peremptory constellation not just retrospectively (installing the a priori from the a posteriori), but in advance; thus the exception is turned into a rule. Key elements of natural lawfare are the right of pre-emptive strike (based on the assumption of violent attacks of “our” frontiers by “savages”), the right to use vacant lands (based on the terra nullius argument of land not properly used/cultivated), and the right to punish those who transgress the law of nature (A.Pagden, following Lockean and others’ arguments) and the (preemptive) right of enslavement (of free blacks- resting on the assumption of necessary, unavoidable race war). They are justified by recourse to natural law, i.e. regarded as right and good (serving the purpose of self-defense and survival) and not as instances of violence and conquest.

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To wrap up: I sketched the relation of natural law to “positive law” in the DI relating it to slavery and colony whereby positive refers to a wide range of more or less quasi/para/extra legal practices that are being “posited” and adhered to (such as British common law, Roman law, American customs of slavery and colony). Crucial are the following 1) the status accorded to African people and Native Americans at the border/”frontiers”/”grey legal space” between natural and positive law (notice that within the latter Africans are either persons, or things/wares, like animals, wild beasts) 2) the power of disciplining, punishing that does not derive from “positive” law only (in terms of civil law/common law jurisdiction, control) but also from natural law insofar as the “executive right” of nature reigns in it (Locke) 3) natural lawfare attempted to explain then how the provisory state of slavery and colony is turned into a peremptory state.All in all its purpose was to find a answer to the way in which natural rights/law shift from a critical to an affirmative function hence justifying slavery and colony.

Insofar as natural rights/laws discourse as deployed in the DI amount to declarations of war (are continuous with these) and insofar as these specifically target those inhabiting the “grey legal spaces” in between natural law and civil law, namely slaves and Americas first nations (called “savages” in the DI) (their difference retrospectively being fixed in advance) then the violent practices of slavery and colony cannot any longer be neatly separated from natural laws/rights. It follows that slavery and colony are not any longer practical shortcomings of otherwise intact natural rights principles of justice but an inherent part of these (it can perhaps be called contextual universalism).

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April 24, UC Berkeleytownsendgroups.berkeley.edu/sites/default/files/lawfare_paper1.1... · Web viewApril 24, UC Berkeley Dr.Birgit Langenberger, Ph.D University of Vienna, Austria