Mercy Triumphs: Crime, Guilt and Judgement's End in Agamben's "Karman"

 "How can a human being be guilty?" Kafka's question, manifest in the brutalizing bureaucratic nightmare of The Trial, is not an obvious one. Many may simply assume guilt emerges instantaneously from a moral action (act/action emerges from Latin actio, a court-proceeding), but even this supposition makes little sense. What makes an action moral? And where does this guilt emerge from? Many commentators will offer superficial distinctions between guilt and shame, where the former is internal/personal against the external/social. But again, what is the feeling of guilt? How am *I* guilty? The reality of guilt emerges from an accusation (the original meaning of "cause" [causa]), but where does this accusation come from? In the basic sense, the question of accusation and guilt comes from the court-room. There is no such thing as intrinsic guilt, it is imputed. And the question of imputation emerges from an accusation, where one (a singularity constituted through law) is charged. And what is proof of guilt? It is not only the judgement, but its subsequent punishment, which then gives it significance. For what would a judgement be without punishment? What is law without accusation? 

Of course, the question of an internal court - the feeling of guilt before a moral law - depends upon theology. Before the final judgement, God stands as judge before mankind to determine guilt or innocence, whether they had obeyed the law or had broken it as sinners (the primary significance of "sin" as "missing the mark" or not obeying the totality of the law). But what, exactly, makes a man guilty of breaking a law? How can punishment be just? Free-will becomes an important apparatus to sort innocence and guilt, the choice to break the Law or uphold it. Thus the gap - between guilt and law, action and actor, judgement and punishment - is held together through the will. The justification for the violence the law unleashes is because one freely chose to act in such and such a way. This claim becomes a kind of comfort for a lack of divine action. God could not stop a school shooter because prayer had been banned from school. Free-will is why a someone receives punishment for an act. Yet, as many laws recognized - whether ancient Torah or contemporary American jurisprudence - a crime may be ascribed without will, where harm is ascribed to an accidental action. Free-will is not necessary to explain the violence of the law, and thus the conjunction between person and act still remains.

Yet nevertheless, the punishment is meted out. The truest expression is in the description of penalty as a "sanction". Etymologically related to sacred and sanctuary, the sanction operates in a double-move. On the one hand, the sanction puts the guilty outside the protection of the law. On the other hand, this places the guilty under the violence of the law, an exception - a capturing of what's outside on the inside. It is precisely this moment that defines the modern view of law that has incorporated all life and established the endless trial of Josef K:

"The sanction, which was initially nothing other than the immediate and unmotivated consequence of a certain action, now becomes the apparatus that founds, on the one hand, the 'holiness' of the law and, on the other, drives the behaviors that transgress its command outside itself as faults and crimes. In the very action in which the law is sanctioned as inviolable, it opens the space of legality, which is to say, of the juridical order in which it is  in force. Thus, the process begins that, by means of a long series of infamous and glorious episodes, will lead to the sanctification of the law that will conclude in the modern age when Kant - perhaps for the last time in the history of the West - will make the legal imperative the summit of human spiritual life" (19)

It is for this reason that law has become all-consuming and violence. Rather than law recognizing phenomena already in existence, law becomes increasingly important to determine all events. Litigiousness become important to describe the varieties of minorities which receive protections, receiving this existence in their juridical encodement, and may use the court to unleash the law's violence against violators. The law becomes the supreme form of morality, as the question of "guilt" continues to haunt Westerners even as God has ceased. Instead, history or fictitious future generations have become a secular final judgement. Ethics is entirely swallowed up beneath this supposed law court, and thus guilt is always already about the corner. The free-will only intensifies the guilt. And it is precisely the sanction, the applied punishment assigned to the guilty, which sanctifies the law. Punishment must exist if justice is to reign. Violence has swallowed up justice, where the law must strike if it is to realize its purpose. The law's supremacy and its holiness.

To effect these punishments, to be brought to the court-room, an accusation must summon the accused. Within the Bible, The Accuser (Satan) is the shadowy spirit that points his finger at the People of God for their sins. This unmasks a dual role that haunts certain aspects of Christian theology. Satan is an evil figure who harasses the People of God, an enemy of the Lord's purposes in Israel. But at the same time, it is in the form of an accusation that law-breakers receive sanction, and thus Satan is God's means to punish his wayward creation. Satan is in someway integral to the task of divine judgement. While the imagery of satan has faded for many in the West, Karma has replaced it. Derivated from the Indo-Aryan world karman meaning simply "action", Karma is in effect the interrelation of all actions in a series of cause and effect. Every moral action metaphysically summons a moral judgement, transmuting an assignable human action into a crime (crimen in Latin originally meant action prior to its juridicization). Thus every action is in potential a crime, sanctioned before the law and requiring due punishment. While the specifics of Hindu metaphysics remain external to Western civilization, this core interrelation defines the relationship of cause and effect. It is not because Karma is Oriental mystique, but precisely the opposite, tapping into the core of Western (understood in its broader Indo-Aryan origins) metaphysics. The core of reality is an endless judgement, where karma links together agent and action, crime and punishment in a never-ending wheel. Whether it is the Hindu wheel of Samsara or the eternal punishment of Hell, both have received a moralistic designation where a negative infinity of the law's violence becomes permanent.

The apparatus of the will makes this situation even more intolerable. It is precisely in the ability to choose that action remains a permanent condition of Human nature. As long as Humanity possesses a free-will, pertaining to nature, it has the potential to sin. Human nature becomes fundamentally culpable in itself, a guilt nature that belongs to every single person who can stand before Final Judgement. Christian theologians had struggled to understand, in what way, Human nature could remain in tact, yet misses of this nature become possible. The free-will was the potential for man to go astray. While some Christian theologians, like Maximus, distinguish a hypostatized accident of this will (the gnomic will; the decision, and thus possible indecision, in carrying out an action from its potential), this has been completely swallowed up in modernity. Potentiality has increasingly been identified with actuality, and the will becomes the apparatus to continually convert. If God, as in classical metaphysics, is actus purus, entirely actualized, modernity has meant drive towards a self-divinization. It's no longer the case that man may exist in potential, but must actualize all potentials. Human rights discourse has reframed around mere potentiality (the king's prerogative) to act towards a demand that all potentialities be realized. Modern man must be fully actualized and the will, like a task-master, drives on this process. The anthropological novum has reached a critical level: one must be or not, but one must will to be. The law becomes the tool of the will to self-divinize. The man-god is one who wills, where all ethics is the morality, the demand of the law to act. Such would make Earth into Hell.

It's from this vantage that Agamben seeks to recover an alternative tradition that recognized these fundamental caesurae within metaphysics. If the Law operates as a conjunction between Justice and Violence, what is to prevent this conjunction from collapsing into itself, where Justice is swallowed up in Violence? What is to stop the Law from becoming a killing machine, eradicating the guilty, which in short becomes all Humanity? If the above is so far a tragedy - this falling together of events into anarchy - then the only thing that can save us is comedy.

This ambiguity is explored in a midrash Treatise on Satan, which sees God's final judgement against his accuser. However, how can God accuse the accuser? It's here Satan offers a damning retort: "You say to me: Vanish from the world! Yet I resemble you because I am associated with you: you created the heavens and the earth, and I created hell" (8) If God damns Satan it is precisely because the Creator of Heaven and Earth has drawn upon the infernal powers of the Accuser, involving a self-destruction. If Judgement is Judged, if Satan and Law reach a climactic conclusion, there must emerge a hidden God, the God beyond God.

The comedy of history - an unveiling of its mystery (a revelation of the sacred drama, an original meaning of mysterion) - is thus the inoperativity of the court-room. Justice and Violence meet at a dialectical stand-still, separated and incapable of interrelation, where guilt and punishment ceases. In Hindu cosmology, it is enlightenment that produces nirvana and ends the wheel of samsara. Nirvana is not so much an end to being, but ceasing the legal machine which constitutes agents to assign guilt. It is a vision of life after judgement, the world of forgiveness. It is this vision, in its totality, that Christ crucified enacted in history. It is the moment of God under God's own judgement, God handed over to Satan, that the radical disjuncture that allows the Law to function, this gap between Violence and Justice, is made available. As St. Paul put it: the charges of the Law were nailed to the cross (Gal. 2:14). This resulted not in the destruction of the Law, but it's inoperativity. The Law ceased to judge, and now can be the basis for a living justice, an ethics freed from the assignment of guilt. The internal court is shut down permanently. Instead, through the forgiveness of sins, the comedy of life emerges:

"Praxis - human life - is not a trial (an actio), but rather a mysterion in the theatrical sense of the term, made of gestures and words.

To every human being a secret has been consigned, and the life of each one is the mystery that puts this arcane element - which is not undone with time, but becomes ever more dense - onstage, until it is ultimately displayed for what it is: a pure gesture, and as such - to the extent that it manages to remain a mystery and not inscribe itself in the apparatus of means and ends - unjudgable." (83)

Or, as St. James wrote: Mercy triumphs over Judgment.