The Law of Marks
This paper was written for the Birkbeck College School of Law Research Seminar, 21st November 2001.
Law of Marks
Literature is the result of the making of written marks and literary criticism the formulation of remarks about those marks. Criticism has reference to crises of meaning and the decisions that cut a definitive path through them. Neither law nor literature are of writing in their essence, for both can come from the spoken word; but both law and letters, the letter of the law, have a primary reference to cutting, to the agonistic submission of the less hard to the hard, the erring body to the obdurate law.
There is one particular kind of marking which seems to bring together law and letters: the marking of the body, or the surface of the body, as though it were a signifying medium. If law is to bear down upon the body, then the skin is the medium or locale for this encounter. Inscribing its text on the body, law makes the body, and more specifically its skin, bear witness. In the penal marking of the body, the law is not only done, it is seen to be done; and this seeing-to-be-done is no mere reflection or re-echoing of the operations of punishment; rather, it is the nature and reach of the doing itself. In the mark incised or pricked or burned upon the body of the criminal, the law precipitates a lasting sign of its action, the letter of the law made actual and present in a continuing here and now. Whatever its primary meaning, this unfading mark connotes a secondary meaning, of the enduringness of the law, the law of marks, the letter of the law, the time of the law that is brought to bear upon the merely mortal time of the body.
The law enacts itself through markings, but we can posit that there is a higher or more primary lawfulness which manifests itself in markings. This higher law is called upon to some degree in every kind of spontaneous or immediate manifestation of a mark: the handprint which signs the cave-painting, the writing on the wall at Belshazzar’s feast, the miraculous images deposited on the handkerchief of Veronica, or the Shroud of Turin, the ‘maternal impression’ that marks the foetus with the sign of the mother’s terror or immoderate desire, the stigmata of the mystic, the medium’s planchette suddenly filled with writing, the fingerprint of the burglar, the silhouettes seared upon the wall at Hiroshima, and the signature coiled in my DNA. This higher, lower law can perhaps be stated thus: things come together. Things of the world and beyond it sign themselves through the contact, impact, or printing of their surface upon another surface. This mode of manifestation is immediate, faster than thought or even perception. It requires and allows no transcoding, no transliteration, no selection, no compression. What signs in this spontaneous impression, this sigillating impingement of things one upon another, is not a proposition, or a proper name, but the all-at-once, tout d’un coup here-and-now haecceitas of the very gesture of the signature. One must sign quickly, after all, without pausing for thought; and how hard it is to do that consciously, as when we are required to sign a new credit card, taking care that the signature is like itself, which is to say unfalsifiably spontaneous, or when we strive to replicate it under a suspicious eye. Forging a signature, or imitating one’s own, cannot be done letter by letter or word by word, for a signature belongs to a different order from writing – the order of marks. A signature is therefore not to be inscribed, but stamped.
Prisoners and slaves were marked with the signs of their condition, which often meant signs denoting their owners. But they were also frequently marked with what appears to be their own signs. In a mime by Herodas from the second century BC, a slave is threatened by his mistress with a whipping and a tattooing, which will mean that he ‘will soon know himself when he has this inscription on his forehead’ (Jones 2000, 8), The reference is to the famous proverb ‘Know Thyself’ The oracle at Delphi was inscribed with a siglum ‘E’, which was sometimes interpreted as standing for ‘Know Thyself’. There seems to be the possibility that the slave would be tattooed, not just with the details of his crime, but with the injunction ‘Know Thyself’ itself. Other penal markings in the ancient world marked ownership and subordination by making subjects display marks signifying their own identities, rather than those of others. Plutarch relates that Athenians tattooed their Samian prisoners with a representation of the representative ship, the samaina, while Athenian prisoners were reciprocally tattooed with their symbol of the owl (Jones 2000: 8). C.P Jones finds it odd that the two sides should use each other’s emblem to mark their prisoners, but it is not necessarily more plausible that prisoners would be marked with signs denoting their owners. If this kind of marking is seen as a degradation, then one might expect uneasiness about the master implicating their own signs in the degradation. To make the one marked bear their own sign, to show forth as literally as possible their own character, is at once to reduce them to the condition of a sign, and to degrade their sign to the condition of a body.
Law has often sought to identify itself with the law of marks. Judicial branding and marking flourished in Europe during the eighteenth and nineteenth century especially for purposes of military discipline. Until the mid-nineteenth century, deserters from the British army might be branded on the forehead with the letter D, the brand being effected by an instrument that not only burned the flesh but crudely tattooed it by piercing it with needles arranged in the shape of the letter and rubbing gunpowder into the holes. The marking of the body with single letters is commonplace at various times: the letter K, for kalumnia, was used to mark bearers of false witness; Hester Prynne’s letter A in Hawthorne’s The Scarlet Letter refers back to this tradition. The great twentieth-century fabulist of judicial stigmatisation, Franz Kafka wrote of his abhorrence of the letter K, but adopted it nevertheless as his mark. The mark of Cain is traditionally supposed to have been a single Hebrew character, ot, a character that came to have the meaning of ‘a character’ or ‘sign’ itself. The fact that the word ‘character’ means a stamped impression implies a link between having a self and being marked in this single way. The one marked, whether with a D, a K or an A, is marked for life. His life becomes a mere punctuation mark in time; he becomes characterised, stigmatised, for ever, unchangeably. The law takes him out of his own time, and submits him to its durance. He is made to mark time.
A signature appears different from a mark: it is the illiterate peasant who, presenting himself to perform an act of witness, makes his mark, his handprint, his thumbprint, or a cross, instead of forming a sequence of letters – the joined-up writing that marks the successful passage into literacy. But the peasant’s incompetence also gives him access to a force, a force of necessity that bursts through the line of script, a force that is incommensurable with, perpendicular to writing. Marking literally cuts across writing, which makes it appropriate that it should traditionally be the cross that is made by the illiterate. Marking has as its basic form the chiasmus, the imposition rather than the juxtaposition. In handwriting, a cursive loop recoils upon itself in order to spring forward. The form of the cross, one line, crossed or crossed out by another, signifies the refusal of advance, reduces to the point of intersection, impact, incision. For Christians, the cross is the sign and the site of incarnation, because it is where heaven and earth, the divine and the human orders, painfully intersect. Christ is nailed to the cross as the cross is nailed to itself. The sign of the cross always implicates the body in writing; it marks the inflicting of the law of absolute identity between Christ and man in the phenomenon of the stigmata. Thinking of the signature affixed about the cross, Iesus Nazarethi Rex Judaeis, Joyce’s Leopold Bloom intuits the capital logic of its transfixing mark: ‘Iron Nails Ran In’. In reading records of trials in the Public Records Office, one will sometimes come across the mark of a red cross of St. Andrew next to a name, to signify that the person has been executed. The cross, the mark, is the defeat of syntax. This is why stamping is a warrant rather than a claim, and embodies rather than merely signifies authority; absolute, entire and uninflected.
In the West, penal or judicial marking of the skin appears later than the ornamental marking of the body. The practice of ornamental tattooing seems to have been unknown among Greeks and Romans, though the branding and tattooing of slaves and criminals was common from 500 BC onwards. Indeed, it is perhaps the very reservation of marking for these classes of person that made ornamental marking unappealing. In fact, penal marking marks a difference between the civilised, or law-governed peoples and those peoples they stigmatise as savage, lawless and, as proof of this, self-stigmatising. So the law of marks marks a break as well as a convergence; it marks the absolute coincidence of law and the body, but also marks an absolute break between an epoch of law and an epoch of wanton decoration.
One might even see this temporal break enacted spatially in the play of the two dimensions of physical letters: the vertical and the horizontal, or the line and the loop. The vertical suggests that letters are impressed or incised into their surfaces. Cuneiform scripts preserve the sense of the resistance of the clay or the stone, schooling the stylus to rectangles and chevrons formed from separate straight lines. The fantastic arabesques which are characteristic of many tattooing and skin-marking practices, especially among groups like the Picts and other similarly daubed and pictured peoples, make the body into a temporal topology, tempting and drawing the eye to follow the complexity of their lines. Curves and crossings-over suggest a medium that allows the stylus to slip and slide across its surface. multiplying forms, allowing individuality, accident, improvisation and signature: style, in fact. When the surface is not incised, the lines need not be broken up, and so can bend over themselves. Law, or its phantasm, look to the first mode or dimension of writing. Something like literature will come to be in the swirls and coils that move across the surface, bewildering and perfecting the letter in self-touchings.
A single letter stands for ornament bent to meaningfulness, the daylit law of the letter rather than the twilit twinings of scrolls, vines, serpents and leaves. Penal and punitive markings, the markings of law, may borrow these efflorescent effects, but aim to temper and discipline them. The branding iron scorches its mark in a moment, and is meant to be read instantaneously. It knits together the diffuse, tangled, procastinating, indolent time extravasating across the skins of backward peoples into its tight knot of fiat. Ornamental tattooing borrows, extends, conjugates and populates the body, constituting the ‘mixed body’ of which Michel Serres has spoken (1998). Penal marking, by contrast, confiscates, limits and divides the body. The letter replaces the complex, iterated chromothermodynamics of flesh and image, line and colour, with the absolute hot-cold, hard-soft of inscription. The ornamental tattoo preserves and awakens the repetitive movements of hands over the body, the fecundity of the caress: the brand or penal tattoo suggests the once-and-for-all application of an instrument.
Not all penal markings involve single characters, and classical Greek sources speak of slaves and captured prisoners being tattooed with lines of poetry as well as single characters. However, a magic potency does seem to attach to a single initial when it is stamped or incised. For a single character is a double violence, a reduction of the reduction that is language itself: it is language reduced to absolute picture, seared or sealed or sutured into ideogrammic instantaneity. The initial letter therefore borrows from the pictoriality which it is meant to replace. The fact that such magic characters often are also often credited with magical powers to protect, heal, or transform is the reflex of this power of stilling or disciplining the living body. Coptic fellahin consider the sign of the cross tattooed upon their wrists to be a protection against disease and ill spirits (Meinardus 1972, 30). Occult and medical texts of the early modern period provide evidence for the inscription of the body with marks and symbols for magical purposes (Rosencrans 2000). So the letter can give life as well as kill. Just as the body may be subdued by being reduced to the condition of a sign, so magical inscriptions – the characters inscribed upon the fragment inserted under the tongue of the Golem, for instance – have the power to give speech or movement to an inanimate body.
From the very beginning of judicial marking, the trade in the removal or modification of the tattoo or brand has flourished. There are two ways in which a disfiguring bodily mark can be removed. One is through effacement, disfiguring of the disfiguring mark. Here the skin may be razed or cauterised. But the skin is a thing of time, which means that it can never suffer revocation, but only revision. Something will always remain of the first defacement and decision, the first excision of the body’s immaculate autonomy. The other, subtler and less drastic way of removing a mark from the skin is to subject it to overwriting or extrapolation. The shaming ‘A’ which Hester Prynne is made to wear is never removed, but is transformed, by extension, extrapolation, variation. Eventually, the badge of shame which is intended to maintain the absolute hold of the past over the present, comes to signify the revisability of the past an the present. Hester Prynne is not only an adulteress, but a seamstress, and the implicature of the needle is oblique to the caricature of the brand.
Not surprisingly, the law has practised its own brand of overwriting. For the law can carry the making of marks to the point where it destroys signification itself; and for human beings, the possibility of signification is always dependent upon some thought of the skin. The revolting and extreme practices of military discipline which took a grip in Europe during the period of colonialism and slavery represent an attempt to take into law the orgiastic practices of scourging and flagellation of previous eras. When 200 lashes were comfortably enough to induce death through sepsis or shock, punishments of 1000 lashes were designed, not to mark the body of the offender, so much as to destroy its capacity to bear marks. Under these circumstances, the only point of the neat and decimalised systems of counting, with their divisions of 25, 50 and 100, along with the ledgers in which such punishments were recorded, was to degrade the body into arithmetic. The law here is concerned not with appropriate penalties, not with establishing exact and measured retribution, but with the denial that there could be anything other than law, here made identical with the establishing of quantitative equivalence, ever. Law will be exacted exactly, to the letter. And yet the spectacle of punishment, like the extremities of hanging, drawing and quartering of an earlier age, seems also designed to bring about a sort of higher body, a general military corporality, bracing together the ship, the regiment in its remorselessness.
And yet, bodily markings can also act to hold or contain this absolute dissolution of the surface. The Australian convict John McCarthy, who was subject to floggings of almost unbelievable severity, had a tattoo on his chest of the crucified Saviour bleeding, and an angel catching his blood in a cup, which has allowed Hamish Maxwell-Stewart and Ian Duffield to reflect on the interchange between the figurative and the literal:
On every occasion, the assembled convicts would have seen two passions. First, there was McCarthy hanging limp from the triangle, his ‘Back like a Bullocks liver and…his shoes full of Blood’. Secondly, there was the passion pricked out on his blood-splattered chest: ‘Crucifix Our Saviour bleeding on it [and] an angel with a cup catching the blood.’ (2000: 113)
The point of such floggings seems to have visibly to annihilate the skin’s power of holding, of bearing marks intact. Here, the savage and remorseless overwriting of the skin reduces it to a kind of bloody nothing, an invisibility in plain view. Even the implements with which such floggings were effected seem designed to erase the possibility of leaving legible traces: the cat o’ nine tails allowed the widest possible area of flesh to be tortured with each lash. Images such as those borne by McCarthy provide a picture of religious suffering which holds suffering together with meaning (the etymological meaning of the word ‘religion’ is a binding)
Historians of tattooing have frequently observed a duality acted out through the marking of the skin. The skin provides the means for the law to enact itself upon the flesh of transgressors, bringing together the penalty and the meaning of the penalty, making, as we say, the punishment fit the crime. (The word fit often brings with it an epidermal idea of a match, a hand-in-glove coincidence of inner and outer,a body and its skin.) But the power that is displayed in and through the body of the one whose body becomes pure signification can be captured and reorientated. The abolition of compulsory tattooing of prisoners in the French penal service during the nineteenth century was followed by a huge increase in the activity of voluntary tattooing.
The Judaeo-Christian law of marks is enacted between the alternatives of Leviticus 19.28 – ‘Ye shall not make any cuttings in your flesh for the dead, nor print any marks upon you: I am the Lord’ – and Galatians 6.17, in which Paul declares ‘From henceforth let no man trouble me: for I bear branded on my body the marks of Jesus’. These two texts mark the polarity of the mark as the sign of discredit and sin, and the mark as the guarantee of salvation. Leviticus both prohibits marking – in the chapter which also forbids the cutting of the corners of the field and of the beard – and also enjoins the solidary cutting of circumcision. Circumcision is circumspect cutting, a mutilation hemmed in with rules and rituals, that takes extreme care, or exhibits the signs of taking care, to be as close as it can be to a non-touch. Marking is at the heart of Judaic religious thought. A marked man is one who is a target (a mark means a target). But a marked man is also a protected, reserved man, for God is the source of all markings. Even the mark of Cain, spoken of very obliquely in Genesis, is intended, not to mark him out, but to protect him from being slain: ‘And the Lord appointed a sign for Cain, lest any finding him should smite him.’ This apotropaic mark reappears in chapter 9 of Ezekiel, which describes a vision of God taking vengeance upon the corrupt city of Jerusalem. He first of all commands a man clothed in linen and equipped with a writer’s inkhorn to go through the city, ‘and set a mark upon the foreheads of the men that sigh and that cry for all the abominations that be done in the midst thereof’ (Ez 9.4). Six armed men are subsequently sent through Jerusalem to slay all those who are unmarked. This recalls other instances of protective markings, notably the marking of the doors in Egypt. Paul may be recalling this story of the mark in Galatians 6.17. His comments occur at the end of a discussion of the idea of rebirth, and contrast this branding with the empty rite of circumcision: ‘For neither is circumcision anything, nor uncircumcision, but a new creature.’ (Gal 6.15). There is evidence among early Christians of the adoption of tattoos as a mark of identification with Christ – the use of tattoos was common among Coptic Christians in Egypt until relatively recent times.
On the one hand, then, there is the mark of the sinner, mark of the beast, disfigurement of the body formed in the image of the Lord. On the other, there is the mark of salvation, the mark as the sign of the body reborn, redeemed, a new creature. On the one hand, the outsider, the lawless pagan: on the other, the circumcised, the one knowing and known to the law, marked out for redemption. Law will make use of both modalities of marking.
In marking the skin, part of the point is to set the skin at naught, to treat it, not as the outward part of a living being, but as an object. And yet the skin itself is indispensable to that process; the living quality of the skin, the cutis in Latin, is necessary to the process whereby it is made two-dimensional, reduced to a pellis, or pelt. Writing instantiates a play between hard and soft, durable and malleable, mineral and organic. When the stylus writes in the soft clay, it is hard to its soft. But when the clay bakes hard, it arrests the nervous fluidity of the writing hand. This commerce of hard and soft is accompanied and interpreted by an exchange between wet and dry. The drier and less organic the surface which receives writing, as with the baked tablets of the Sumerians, the more permanently signs can be fixed. For Europeans, Latin, the language of law, learning and authority, always contains an implicit visualisation as public inscription or prescription (set, as we say, in stone), on a column or a monument, or set in Black letter. But, when it comes to paper, the more desiccated the surface, the more easily it will absorb the ink deposited upon it. However, if that surface is too absorbent, as in blotting paper, there is nothing to fix or arrest the ink, which then flows away from the nib. Wet or greasy paper, by contrast, repels the ink.
In marking the flesh, the law indicates that it is harder, more enduring than the soft, vulnerable flesh. The flesh, by contrast, can grow back around its wound, borrowing the hardness of the wound. When we say that someone has become ‘inured’ to pain, we are borrowing a metaphor from the Latin ‘inurere’, to incise by burning, or to brand. When someone is given the law, they are given something of the law’s insensitivity, the coldness of the decree that is joined to the vengeful burning of the brand. The flesh can become harder than that which marks it, can give itself coldness and hardness. Tattoos often involve the assumption of the image of cold-blooded and shell-covered creatures, like lizards and snakes. The past participle of iurere is iustum, coinciding therefore with the word for the law of the social body in Latin, the ius, as opposed to the lex of statute law, or the fas of divine law.
It is necessary for the surface to yield to the iron or stylus which marks it; but, if the mark is not to dissipate, if the action of marking is not to destroy itself, then it is the surface, the integument, not, as Yeats said, the centre, which must hold.
The act of writing has been so closely linked to the hand that all these abstract possibilities have bodily and sensory correlatives. The hard is that which resists the hand, forcing it to cramp and concentrate its movements. The warm and the soft – wax, clay – are a kind of reciprocal, emollient flesh, which soften the hand and finger. When wax or clay dries, it seems to form a scar or cicatrice, which seals in the meaning, as though a skin had formed over it, protecting it from degradation and change. It is the body which writes, and in writing, discovers, or bestows a skin wherever in the world it writes.
The practice of sealing – from Latin sigillum – concentrates together the impressing of a mark or visible form and the closure of a surface. The signet ring stamps its authorising mark in the formless wax, and the resulting device then forms a seal for an envelope or a document. The seal, with its mark, first breaks and then completes and guarantees the epidermal integrity of the object that is sealed. The incising of solemn marks always has this symbolic reference to the body, the integrity of which is first violated, and then restored in a new form, that pretends to be original. ‘Nothing can be sole or whole/That has not been rent’, as Yeats’s Crazy Jane declares.
Writing is painless. But the fact that writing seems to have an ineliminable reference to the skin, as its ideal ground or surface, implies hurt and injury as the counterpart of law. If letters are imagined, not as resting on a surface, but as being incised into it, then that surface cannot be imagined except as patient but suffering, passive yet impassioned by the signifying touch. Writing awakens its mute, receptive surface into life, by constituting it as a surface. For beings in whom the reddening and darkening of the flesh is both signification of stimulus and itself stimulating (at once designating and transmitting alarm, fear, pleasure, arousal), the making of marks is a passional affair. We speak of ‘angry’ marks left in the skin of the victims of violence, or ‘livid’ marks, where lividness is also the sign of anger. The transfer of sense here seems to be literal as well as metaphorical; the victim of violence may be angry, but it is their marks which are said to be angry. The anger of their oppressor has been caught and preserved in their skin, becoming their skin’s anger at its own violation. The skin’s capacity to bear and retain marks is also a capacity to transfer affect from body to body.
In penal marking, the hard appears to impose itself relentlessly and unbendingly upon the soft. This is in violent contradiction to the alternative trajectory which Michel Serres has made out in the history of culture, in which energy is gathered up as information, the obdurateness of inhuman nature is taken up more and more into the softness of signs, codes and culture (1998: 141-9). Certainly the physical embodiments of writing seem to have undergone this passage from the hard to the soft, from the tablets of the law through to the virtuality of digital lexis, in which words are at once permanent and erasable, absolute and abstract. In digital text, both the surface and that which is inscribed upon it have dissolved. Or perhaps we should say that digital writing has taken the play of surface and stylus up into itself, as so many designs on the skin, mermaid, crab, dragon, incorporate secondary, represented skins of their own. Nowhere is this allegorised more obviously than in the ubiquity of the word ‘brand’ itself, which has been in use since the early 1800s to signify a particular company or product line, which presents itself to market in the form of a mark. The brand here is no longer literal, but aims to purloin some of the enigma of the literal. The production of a brand is the display of the mark of a necessity, an essence. The real, as has been said, is what hurts. And yet the age of digital writing, of ubiquitous signification, seems to have brought about a nostalgic return of the bracing encounter of the hard and the soft, in the imagery and practices of contemporary skin marking.
The two kinds of skin markings, letter and picture, discourse and figure, encode absolute and empty time. The law which enacts its everlasting marks is a law of vengeance, measure and ordeal, enacted in linear time. The marks of law mark the entry of law into time. This is the law of the line, the line to which time is reduced, and the line which divides different times absolutely one from another. This is why the coming of the law often involves the forbidding of marking. Tattoo is close to taboo. When the savage judicial marking of human bodies began to pass away from the penal systems of Europe (passing across into colonial locations), the second half of the nineteenth century saw a fascination with a different kind of marking: the taxonomic attention to and ordering of self-markings among the poor, the mad, the criminal and the deviant. During the nineteenth century, the word ‘stigmata’ began to be used by medical writers to signify the essential characteristics of conditions such as hysteria, degeneration and criminality, often in distinction from the ‘accidents’ which signified non-essential features of these conditions.
The assumption grew in the literature on tattooing that, far from being a punishment to be feared, self-marking was an innate degenerative tendency, which was likely to appear under conditions of boredom and underemployment. Convict ships in particular were thought to breed epidemics of body-marking. This is the resurgence again of a kind of waste time; arrested on the body are the marks of what overflows this schedule, the eddying indolence, the entropic, infantile shilly-shally of self-attention. Self-marking, as in Joyce’s evocation of the masturbatory writer Shem in Finnegans Wake, covering his own body in excremental daubings, like the self-mutilations so endemic in prisons, is the sign of the refusal to ‘do time’. Hysterics were similarly thought to be marked with the unmistakable – but so easy to mistake – marks of simulation and malingering.
Whether it is an exhibition of a penalty or a redemption, marking is a making good, in which the exhibition of the mark is part of the equation. This is an equation that aims either to refuse or to reverse time. It borrows and transforms the skin’s tendency to gather and retain the marks of injury and accident. It trammels up accident and change in representation. Marking is remarking. The marked skin allows the past and present to communicate, easily, running backwards and forwards. The mark in my skin is a destiny, a portent of what I may become, as in the explication of moles, or birthmarks, or chiromancy. Thus what I will have become is that which I will always have been meant to have been. Marks in the body are foldings of time, bookmarks which look forward to the future that will loop back to them, the body made pluperfect.
The order of marks is the order of identity, of immediate resemblance, in which everything can be the image of everything else, because everything can both make its mark and be made to bear the mark of everything else. The law of marks strives against all differentiations of time, place, person and form, all the painful distance and difference between things. It dreams of a primal and a final compaction, in which every offprint will be returned to its source, every simulacrum will fly back to its original, every every form to its matrix, every flame to its spark; a Big Crunch in which time and space themselves will be folded tightly together like the pages of an unopened book.
Because of this, the law of marks has hitherto always been rare and absolute. It represents the occasional, redemptive irruption into successive time of a folded-together, instantaneous time. It is precisely because of this power that the making of marks has been associated with the extension and distribution of power, with the replications and repetitions of mass communications. They have their beginnings, not with the technologies of phonography, photography or even printing, but with numismatics and the practices of sealing and the casting of metals from moulds. They represent the extension into mortal, linear time of the logic of the mark, the attempt to deflect the signular event of the mark into the general logic of writing.
We have perhaps arrived at the beginning of an age in which the logic of the mark has been finally captured within mortal time. As Michel Serres has recently suggested in his Hominescence, we live at the threshold of an era in which there will no longer be any distinction possible between the model and the copy, the code and its embodiment, theory and the world (2001: 75-83). Genetic research has revealed coding to be the very stuff or felsh of things. In such a period, it is not the copy, but the (im)mediated live with dominates. Photography presented itself to Walter Benjamin as a powerful irruption of the previously unapprehensible instant into ordinary time and perception – ‘the dynamite of the tenth of a second’. Paul Virilio points to the acceleration and generalisation of the photograph as an image of what he calls the ‘over-exposure’ of the contemporary world, in which there is no longer any delay or gap between originals and images. The intervals and extensions, of time, of space, of a previous era yield place to a continuous interface. The law of marks was once powerful because, unlike everything else which occupied space and took time, it testified to an instantaneity. But a world run at maximal speed, with communications which operate literally at the speed of light, is a world which operationalises the law of marks, or self-impressing signatures. We are seeing, says Virilio, ‘the emergence of a new conception of time, which is no longer exclusively the time of classic chronological succession, but now a time of (chronoscopic) exposure of the duration of events at the speed of light’. We must look forward to living in ‘an intensive present, spawned by the limit-speed of electromagnetic waves and no longer registered in chronological time – past-present-future – but in chronoscopic time: underexposed-exposed-overexposed.’ (Virilio 1997: 3, 28) Once rare and redemptive, the law of marks seems to have become routine and ubiquitous.
At such a time, the desire for a return of the lost rarity of the law of marks may be seen; whether it is in the desire for a model of the self based upon trauma, or in the politics of lines drawn in the sand, or the practices of piercing, marking and punctuating ordeal applied to the body. I am about to suggest that the epidermal justice-machine of Kafka’s ‘In The Penal Colony’ anticipates our nostalgia for this law of marks.
What makes the marking of the skin different from marking paper, what seems in fact to make it the origin or model of the marking of paper, is its reference to time.
The marked skin means memory, means never being able or willing to forget.
The mark of law is enacted both in absolute linearity and in absolute reversibility. Law is a system for making the past and the present commensurate, the present and the future in balance. Without penalty, law would always be owing. Law aims for absolute equality between a deed and the penalty, crime and retribution. It is because law ranges time in a line, or irreversible sequence, that it can give itself the power of folding time over on itself, in exact equivalence. Law, as retribution, must not only come last (the last judgement), it must come first; for there to have been crime, there must have been law to be broken. The marked body is the sign of this meeting and marrying of disjunct times. Cain kills Abel, but what law does he break? The law that his own act institutes as prior to it; thus Cain is marked with the primal mark. Cain is marked with the sign of the deserter; but, like certain Greek slaves who, according to one ancient commentator, were marked, as with an ex libris plate, with the words, kateche me, pheugo: stop me, I’m a runaway, (Jones 2000: 9), he is marked in order that he can never desert, that he will always be at home in his wanderings.
A sizeable literature has established the connections between the violent mode of a modern epistemology, and the defacing encounter between surface and marker. In Spurs, Jacques Derrida suggests that philosophical style itself is nothing but this resumed meeting of female fabric and male stylus:
In the question of style there is always the weight or examen of some pointed object. At times this object might only be a quill or a stylus. But it could just as easily be a stiletto, or even a rapier. Such objects might be used in a vicious attack against what philosophy appeals to in the name of matter or matrix, an attack whose thrust could not but leave its mark, could not but inscribe there some imprint or form. But they might also be used as protection against the threat of such an attack. (1979: 37)
Where Derrida sees an originary agony in all stylistics, Friedrich Kittler sees a more systematic, and historical escalation of violence in modernist technologies of automated writing, with the displacement of the pen by the typewriter, and then by the typewriter’s analogies, phonograph, telephone and cinema. Where the pen inscribes, the typewriter impacts. In the `discourse network’ that was already in place by 1900, the intimate economy of brain, hand, eye, line and paper is replaced by the violent, blind, tactile concussion of surfaces. `All that remains of the real is a contact surface or skin, where something writes on something else’, Kittler tells us. (1990: 224).
The hideous writing machine of Kafka’s `In the Penal Colony’ cannot now not be read as the direct, unconscious inscription of such processes of inscription. In this self-explicating allegory, the story imprints itself as forcefully and corporeally as the very process of inscribing the law which it presents. Like the body of the condemned prisoner, the story seems to have no interiority, no curiosity or secret, no concealed or implicit backside. Law, like psychoanalysis and the other privileged expressions of the discourse network, bypasses consciousness and is made to appear directly on the body of the subject (the subject here being literally, in this story in which everything is done to the letter, the one who lies underneath, the support, the platen, the receiving bed). The text which shows all this seems itself to be inscribed by the truth it inscribes, locked between the recto and verso of its pages as immovably as the condemned man is inserted between the Designer and the Bed.
But the machine (or perhaps we should say the two machines, the device written of in Kafka’s story and the machinery of that writing itself) goes wrong. Realising that the explorer, to whom he has been explicating the glories and mysteries of the machine, is not convinced of the justice of the old way of execution, the officer takes the place of the condemned man under the harrow. And then the machine appallingly, absurdly begins to destroy itself, vomiting up its own mechanical innards in place of the human body that it ought to deliver, just in time, at the fulfilment of its sentence, and in the demonstration of the demonstration, to its ready-made grave. There is a horror and a violence in everything being brought to the surface, in everything being made a matter of surface, in the way of the old law. But the story itself seems not to be able to articulate the nature of the different horror, when the defining, violent encounter between the surface and the inscribing force fails. Does the machine of Kafka’s own allegorical demonstration itself fail as a result? Or is its aim to open up a gap between itself and the mode of law’s inscription? Does it know its meaning, or is its meaning written involuntarily through it? The story might be available to be read, not only as the figuration of a traumatic assault on a surface, as the dread of a failure of the surface, the giving way of embodiment.
In his remarkable meditation on Kafka’s story, Jean-François Lyotard marks out in it a conflict between two modes or moments of touching. For Lyotard, Kafka writes of the violent touch of the law, which demands to be written directly on the body, rather than merely being applied to it. Lyotard’s concern is with the topography and the temporality of this typography. On what, and in what time, does the law inscribe itself? The law wants to impose its violent figuring touch upon what at first and in the end must slip through its fingers, namely an experience of an indeterminate preconceptual `here and now’ of the body that can be in no way prefigured or prescribed. This `infant’ body knows nothing of law or language, for it has not yet received their touch or taken their print. Lyotard identifies this groundless, lawless being in the here and now of corporeal experience, in which one is `exposed in space-time and to the space-time of something that touches before any concept and even any representation’, with the aesthetic:
To be esthetically (in the sense of the first Kantian Critique) is to be there (être-là) here and now… This before is not known, obviously, because it is there before we are. It is something like birth and infancy (Latin in-fans) – there before we are. The there in question is called the body. It is not I who am born, who is given birth to. I will be born afterwards, with language, precisely in leaving infancy. My affairs will have been handled and decided before I can answer for them – and once and for all: this infancy, this body, this unconscious remaining there my entire life. When the law comes, with my self and language, it is too late. Things will already have taken a turn. And the law in its turn will not manage to efface the first turn, this first touch. Esthetics has to do with this first touch, which touched me when I was not there. (Lyotard, 1991b: 18)
What matters most about Lyotard’s autistic aesthetic of self-touching is that it leaves no mark, because there is not yet a ground or surface in place to retain the trace. It is this which makes the temporality of this primal touch, the temporality upon which we must make it rest to conceive it at all, so complex. For temporality works through the making and retaining of marks and is therefore of the order of inscription. To see this first touch as at first – first a surface, then what comes to mark it – is mistakenly to have preinscribed it with its place in that order of temporal succession.
When it is a question of an art that would manage an encounter with this primary corporeal aesthetics, Lyotard’s account has a more austere and destructive character. Discussing musical experimentation, for example, Lyotard writes of a writing that would not merely apply itself to a given surface (the blank slate of the medium, or of cultural tradition), but would scour or scratch away the surface of the inscription: `I’d like to falsify the value of the prefix `e’ to hear in écriture something like a `scratching’ – the old meaning of the root scri – outside of, outside any support, any apparatus of resonance and reiteration, any concept and pre-inscribed form. But first of all outside any support‘ (Lyotard, 1991a: 158). The avant-garde art which would make contact with that which has no concept is characterised no longer by the lightest of caresses, but by the incendiary destruction of contact itself:
There would not first be a surface (the whole tradition, heritage, memory) and then this stroke coming to mark it. This mark, if this is the case, will only be remark. And I know that this is how things always are, for the mind which ties times to each other and to itself, making itself the support of every inscription. No, it would rather be the flame, the enigma of flame itself. It indicates its support in destroying it. It belies its form. It escapes its resemblance with itself (Lyotard, 1991b: 158).
The primary touch of the infant aesthetic as conceived by Lyotard has certain resemblances to what Levinas thematises as the ethical condition of proximity, which Levinas regularly represents as a pure touch or contact without mark, residue or inscription. Where, for Lyotard, the aesthetic is the traceless touching that leaves no trace, for Levinas, the ethical relation is characterised by a contact that is too immediate to be susceptible to representation. But, like Lyotard, Levinas nevertheless characterises this immediacy of contact as a rupture:
The ethical…indicates a reversal of the subjectivity which is open upon beings and always in some measure represents them to itself, positing them and taking them to be such or such (whatever be the quality, axiological, practical, or logical, of the thesis that posits them), into a subjectivity that enters into contact with a singularity, excluding identification in the ideal, excluding thematization and representation – an absolute singularity, as such unrepresentable. This is the original language, the foundation of the other one. The precise point at which this mutation of the intentional into the ethical occurs, and occurs continually, at which the approach breaks through consciousness, is the human skin and face. Contact is tenderness and responsibility. (Levinas, 1987: 116)
What matters, in such contact between self and other, is not meaning or understanding. As with Kafka’s writing machine, there is nothing but the contact itself: `This utterance of the contact says and learns only this very fact of saying and learning – here again, like a caress’ (Levinas, 1987: 121).
Both Lyotard and Levinas seek from the skin figurations of the nonfigural: the image of a touching without marking, a writing without residue, a weightlessness, nearness and immediacy. The skin is now reserved as that which eludes visibility, the ground on which the visible is written and which itself can thus be seen only in intimate revelatory flashes: `The law takes a grip…Features have to be deciphered, read and understood like ideograms. Only the hair, and the light that emanates from the skin escape its discipline’ (Lyotard, 1991a: 190). This is perhaps why both Levinas and Lyotard are reluctant to thematise the skin; they want the skin to remain invisible, unfigured, and yet able to touch and be touched through the blind palpations of metaphor, the nudgings and insurgences of touch into discourse.
Michel Serres offers us another, more irenic meaning of the word prescription. In his Le tiers-instruit, translated as The Troubadour of Knowledge, Serres protests against the ideal of just reason based upon equilibrium:
Here is the immobile motor of our movements, reason in the world and in history, the twin of vengeance, imitating its compensations or reparations…Vengeance and its apparent justice, founding the eternal return, keep the complete memory of exact reason intact, through reversible and cyclical time. (Serres 1997: 139)
However, the passage of time opens up lack or non-equivalence in these vengeful equilibria of reason. The word prescription, which in French signifies something like the English statute of limitations, prescribes the time after which the grip of law lapses. Prescription is the law given to law, the law of fading, forgetting. On the one hand, therefore, there is Lyotard’s greedy prescription, in the desire of the law to come before every other marking, to put itself in the place of the first touch of the flesh. On the other, there is Serres’s ‘natural law’, the law of the fading of every law, a law which the law can and should give itself, in the name of a reason which knows how to limit itself.
But there is another possibility. Yet the skin marks and holds another time, an embodied temporality that is a third element, between the law and the flesh, which, we will see, disturbs their settled compact. The skin may be something else, a third thing, between the alternatives of a screen that lets things through, or a slate on which things may be deposited. It might be, as it in fact is, a milieu, an environment, a multiplicity, a depth, an archipelago, or Northwest Passage. The law of marks imposed upon the body, either as expression or as accident, is a positive law, that erases the possibility of loss, or erasure, or approximation. The life of the skin is probabilistic, an unfolding between the alternatives of the family face, with its bags and folds and wrinkles buried in the genes, and the tannings, softenings, emaciations and alimentations to which it is heir in time. The idea of marking the skin aims to hold it suspended between the alternatives of figure and ground, accident and intention. But the mark on the skin in fact marks out the subjection, not to the positive law of visibility and making good, but the subjection to the invisible and imperfectly calculable space of competing probabilities. Freckles and acne come and go. The mole may or may not develop into melanoma, which may or may not be malignant. The skin is more like a sea than a screen, more like a mobile sky of shifting cloud and sun than the punctual night sky.
Scissors, Stone, Paper
We have seen that law and the body therefore change places with each other; the body becomes inured with law’s hardness to the injustice and the cruelty of law. The game of vengeance and retribution played out between the law and the body through the law of marks endlessly presents a hard thing with a harder thing, and in which only hardness, coldness and endurance can win. It is like the game of scissors-paper-stone flattened out, or reduced to a linear series driven by the endlessly reconstituted binary of hard and less hard. If the flesh is not grass, but paper, and the operations of penalty and retribution are the scissors, then the stone may appear as the impassive, enduring, inured law, against which even penalty blunts its edge. Sharpness wins against softness, and hardness wins against sharpness.
But, as we know, the elements in this game are not ranged in a simple ascending series, from hard to less hard. For there are not only two possibilities, of winning or losing, depending on one’s antagonist, dependent on one’s degree of hardness relative to that of one’s opponent, literally, that which you come up against (scissors wins against paper, but loses against stone), but also two ways of winning or losing. Stone either wins because it is harder, or loses because it is harder, depending on whether it meets something which is softer (scissors) or something which is even softer (paper)..
So this marking out of the relations simultaneously and all in one go, on a single plane or surface, does not complete the picture, precisely because it renders it as a picture, a something that might be apprehended by the eye, held in the hand. What is the space in which the combinatoire of this game is enacted or exhibited? It cannot be grasped, held all at once, or maintained in a now, a maintenant, because it includes and is caught up in the action of grasping. Each of the vectors in fact involves a change of value; scissors beat paper by cutting it; but stone beats scissors by blunting them; and paper beats stone by enfolding it (which is a way of blunting weight). The game is a phase-space, a ambidextrous topology that requires the repeated protean contest of hands, a battle played out as a Klein bottle.
Serres’s prescription involves the subjection of the law, not to a greater and more remorseless hardness, but to an inescapable liability, a subjection to the softening and diffusing influences of time. Serres’s prescription, like the paper-scissors-stone game, requires of the law that it do time.
So there is a law that comes before and after the law of marks. There is the law of the scar, the tattoo; and there is the law of the scar’s preordained (prescribed) subjection to time. Herodotus tells us that Xerxes commanded the waters of the Hellespont, which had impeded the progress of his army, to be given 300 lashes, and then threw a pair of manacles into the waters (Jones 2000: 7). Iron beats flesh, but water’s irony blunts iron. There is the law of memory, equilibrium and retribution, kept radiantly in sight and in mind; and there is another law enjoining on us eventual recall of the forgetfulness of time. Amnesia is a slower, surer bomb than the dynamite of the tenth of a second. The skin can be forced to remember: but it will always harbour a longer intimation, that it cannot but forget.
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————————- (1991b). `Prescription’. L’Esprit créateur, 31.
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