[Editor's Note: This post is in response to "Law’s Prayer: Town of Greece v Galloway" by Winnifred Fallers Sullivan.]
Years ago, before I was a parent and obsessively risk averse, I took an eventful, if short, research trip. The trip was to northern-central Sri Lanka to visit the quasi-independent region that had been set up by the Liberation Tigers for Tamil Eelam (LTTE), or Tamil Tigers. It was a de facto state complete with its own roads, hospitals, school system, police force, customs officers, ministries and, of course, judicial system. All this was intriguing because the Tamil Tigers were an armed rebel group who since the late 1970s had been fighting a violent campaign against the Sri Lankan state. To most, they were known not for their visa forms and traffic cops, but for their brutal guerilla military tactics and devastating suicide bombings.
I had crossed the border into the ‘state of Tamil Eelam’ with the hopes of examining the Tamil Tigers’ practices of memorializing dead soldiers, such as elaborate burials and commemoration rituals. Yet, keen to make the most of the trip, I also thought I’d conduct some general journalistic interviews about rebel leaders’ grievances and goals. Contacting the Tamil Tigers was a remarkably easy process. I emailed the “LTTE Peace Secretariat” and made an appointment with their media attaché (of course they had one), a former English teacher from Jaffna. The attaché gave me directions to a compound in Kilinocchi where I was ushered into a well-appointed two-storied house. On arrival, I was seated on a large couch and offered a cup of tea. The media attaché soon entered with two other men, each with large purses that I recall as being suspiciously pistol-sized. Although the purses alarmed me slightly, I had vaguely expected this. After all, it was violence (and the threat of violence) that had made the LTTE what it was. I assumed that this was precisely the sort of thing to be expected when talking to a representative of an armed insurgent group.
If I half expected weapons, the conversation that followed caught me totally off guard. After our discussion about Tamil Tiger military cemeteries, I launched into my other questions about the movement. What were their rationales for fighting? What were their goals? I expected the responses to be the rhetorical equivalent of a pistol in a purse: superficially polite versions of the standard discourse of Tamil nationalism, ones that emphasized Tamils’ deep historical claims to northern Sri Lanka or that lashed out against instances of civil and state violence against non-Sinhalese. What I got was something completely different. Instead of talking about historical Tamil kings or anti-Tamil riots, the media attaché furnished me with a methodical justification for Tamil separatism couched entirely in the language of international law. For thirty minutes, I heard how the Tamil Tigers were exercising their rights to national self-determination and actualizing for themselves the principles outlined in the United Nations’ Universal Declaration of Human Rights. I heard about the Responsibility to Protect and the significance of cultural rights. I heard about the International Covenant on Civil and Political Rights and the legal legitimacy of other secessionist movements around the world.
In retrospect, perhaps I should not have been surprised. Why shouldn’t a rebel group speak publically (and this was ‘on the record’) in the language of international law? After all, increasingly in many parts of the world, the language of law—domestic law and international law—is the language of legitimacy par excellence. Describing the Tamil Tiger movement in the language of international law was not just an act of translation (of saying things legally,) it was a performative utterance. It made Tamil separatism legitimate through the very act of pronouncing on it.
Reading Winnifred Sullivan’s piece, I am struck by the deep similarities between the ‘legalization’ of legislative prayer and the ‘legalization’ of Tamil Tiger claims. I use this term legalization deliberately, in a way that leverages its ambivalence to make a point: casting public prayer and secessionist movements in the language of law not only alters the way those activities are understood and imagined (legalization as reclassification through law); it enacts their legitimacy on the spot (legalization as performing the legality of activities). When deployed successfully, the rhetoric of the U.N. Declaration of Human Rights or the U.S. First Amendment does not simply recode life through law, it calls into being the ‘lawfulness’ of life. That is, it makes real and persuasive the idea that human behavior is evaluable according to certain normative standards of decency, justice, or reasonableness—standards that make certain types of public prayer more reasonable than others, just like certain types of violence.
It is because of this dual aspect of legalizing—the classificatory and the performative—that law may come to have such deep effects on humans’ very lives, sensibilities, and practices. Because the legal expression of an act also calls into being its reasonableness, human practices can easily slip into becoming parodies of law. Legislative prayer becomes conspicuously (even histrionically) non-sectarian, inclusive, ecumenical, non-denominational—a pastiche of acceptable “non-established religion.” Tamil Tigers’ public policies reflect a constant, almost panicked performance of their espoused commitments to U.N. norms of justice, human rights, and the rule of law. Remember those traffic cops! It is not arbitrary that one frequently sees editorials proclaiming that under the Tamil Tigers the legal system operated more effectively than under the Sri Lankan state, and that court judgments and investigations were completed in a fraction of the time (to say nothing of their dubious fairness). The Tamil Tigers’ desire for legitimation manifested in a hyper-legalized public image: the conspicuousness of courts, cops, and customs acted as a billboards for the Tamil Tigers’ strident claims to legality.
What then of ‘pure prayer’ or ‘pure politics,’ prayer and politics prior to or outside of legalization? Put in Sullivan’s terms, what about benedictions and rebellions that have not already been “tamed by the law”? When the question is asked in this way we run into a conundrum: to the extent that human activity offers up “untamed” practices, we are less likely to recognize them as purer versions of prayer and politics than to treat them as incomplete or deficient forms. Public invocations that sound proselytizing or sectarian seem to most listeners as ersatz, not pure prayers. (And yet, it is precisely these modes of invocation that are un-tamed by establishment jurisprudence.) Equally, secessionist movements that forego legal rationalizing tend to strike us not as pure politics, but, pace Clausewitz, as politics by other means.
In a passage not far from the one that Sullivan cites in her essay, Bruno Latour muses that
it is as if there were no degrees in law: either one is fully into it, or one is not in it at all… Its conditions of felicity and infelicity have particularly abrupt limits… One can babble about science without being a researcher, but one cannot talk about law without being a lawyer.
This abruptness shows through in Sullivan’s analysis of legalized public prayer and my anecdote about Tamil Tiger claims. Following Latour’s observation, it seems as though the “backstream” effects of law are more totalizing then the backstream effects produced by other conceptual systems, such as the English language or Biology: we can conceive of our lives in multiple languages, yet it’s difficult to conceive of our lives simultaneously inside and outside of law. If this is the case, then to claim lawfulness, one must be “fully into it.” Or, put slightly differently, legal discourse declares and performs “law’s rule” at the same time. If it’s faxed pizzas on the one end, it may be parody on the other end.