On September 4, 2007, the Washington Post published an article discussing proposed changes to the U.S. government’s administration of disaster areas. Titled “ID Would Control Access to Disaster Sites,” it states that
in an effort to provide better control and coordination, the federal government is launching an ambitious ID program for rescue workers to keep unauthorized people from swarming to a disaster scene. A prototype of the new first-responder identification card is already being issued to fire and police personnel in the Washington area. Proponents say the system will get professionals on the scene quicker and keep untrained volunteers from making tough work more difficult.1
The article cites the collapse of the World Trade Center buildings on September 11, 2001, as the beginning of a trend away from a more laissez-faire approach to disaster relief,2 and Hurricane Katrina, in 2005, as the moment when the Federal Emergency Management Agency (FEMA) “came up with the idea . . . [after] countless Americans rushed to help—unasked, undirected, and sometimes unwanted.”3
This article and the proposal that it addresses raise a number of questions about political control over public space, freedom of information, grassroots activism, and, more basically, whether institutions like FEMA are in fact competent to respond to disasters without civilian interference. It is not for this reason that I bring it up here, however. Rather, this new federal initiative is an excellent example of disaster law as I have been discussing it throughout this book. There is, first of all, an insistence underlying the initiative that disaster areas be political spaces, spaces defined and regulated by government agencies, and spaces linked to national identity. This is made clear both in the policy’s emphasis on state regulation, and in the rhetorical placement of this policy within the radical state-based nationalism that followed the destruction of the World Trade Center. That FEMA should recommend this new approach to disaster areas only after its incorporation into the Department of Homeland Security, for example, is arguably not a coincidence. The spaces subject to the emergencies and disasters to which FEMA responds are precisely the spaces that demand an articulation of the “homeland”—precarious, vulnerable spaces in need of a stabilizing national narrative.
More than that, though, this redefinition of the disaster area likewise redetermines what type of political subject can legitimately exist within the borders drawn by the crisis. By issuing government ID cards to what are deemed professional rescue workers, the policy makers are creating three distinct categories of citizenship. First there are the civilians outside the disaster area who cannot get in. Second, there are the civilians within the disaster area who cannot get out. And finally, there are the quasi-military professionals, those vetted by the state, who can cross the boundary between the disaster and the not-disaster. What has been created, in other words, is one group of people, visible and clamorous, who are irrelevant to the disaster, a second group of people, invisible and silent, who can define the disaster, and a third group, the professionals, who can speak to the visible on behalf of the invisible. FEMA and Homeland Security, in other words, have managed with this policy to regulate and codify what was previously a threatening and unstable relationship between the subject offstage and the disaster. The invisible, eccentric political subjects who had for three centuries produced the meaning of the crisis can now be effectively represented by professional rescue workers.
By drawing these spatial and political lines, FEMA and Homeland Security have resolved a number of problems that plagued the Ottoman, Japanese, Turkish, and U.S. governments throughout the twentieth century. By regulating the flow of supplies, for instance, the gift of life will now be something easily monitored. There will be no embarrassing incidents of the sort caused by Osman Durmuş. Instead the ecstatic transfer of bodily fluids and body parts will happen in silence—invisible within the walls of the well-patrolled disaster site. Likewise, the death toll will remain official, and only official—there will be no alternative, no private, no unprofessional group challenging the government’s ability to compile lists of newly dead citizens. Finally, the throwing up of walls and barriers within the disaster area, the rearticulation of political space, will happen without hindrance, without comment even. Legal ecstasy will now be something, perhaps paradoxically, subject to constant control and regulation.
From this perspective, it makes sense that FEMA officials should introduce their new policy with the counterintuitive comment that their efforts during Hurricane Katrina were “burdened” by civilian interference. It likewise makes sense that these officials should deny civilian claims that the government was unfit to engage in even the most basic disaster relief.4 If the purpose of disaster response is not, after all, to distribute supplies and to collect information, but rather to distribute supplies and collect information for a particular political purpose—a purpose linked to the goals of Homeland Security—then interfering civilians are very much a burden, and the government has been doing an effective job. If the first step in disaster response is to produce an ecstatic, eccentric subject who will bring the political reality of the disaster home, these government agencies have been extraordinarily competent. In the wake of Hurricane Katrina, an entire population of subjects beside themselves, previously offstage or ignored, were suddenly revealed to be living on the roofs of submerged houses or in tents on isolated freeway overpasses—these subjects suddenly became the population at the center of the disaster narrative. And it was FEMA that made this narrative possible.
I emphasize that although this approach to disaster control flies in the face of what, on a gut level, many people understand to be the purpose of effective state engagement, it is not actually far removed from the three-century-long story of crisis and governance that I have been telling in this book. It is also not only an example of those who are already marginalized or victimized becoming that much more so when the crisis strikes.5 Instead, or in addition, the production of the subject in ecstasy—exemplified by FEMA’s policies—is a deliberate, meaningful, politically essential process, in no way accidental, and in no way the result of failed legal and political structures. FEMA’s unique management of the destruction caused by Hurricane Katrina was not simply a postdisaster exposure of the state violence that under day-to-day circumstances remains for the most part hidden. In addition to that, what the response to Hurricane Katrina and these recent proposals to reimagine and regulate disaster areas hint at is a deliberate form of governance that meets at the intersection of the day-to-day and the crisis.
Although until now I have played up the differences or at least tensions between the politics of the everyday and the politics of disaster, I conclude this book by suggesting that in many ways they are identical—and that the disaster represents a quite normal, or normative, form of democratic engagement. Moreover, as I mentioned briefly in Chapter 1, one lesson to learn from these trends in disaster law is that, rather than aiming at some resolution to crisis or disaster situations, rather than attempting to solve the problem that is the crisis, we might instead try to develop a vocabulary that accepts disaster as the endpoint to law.
What do I mean, though, when I say that the disaster represents a normal or normative form of democratic engagement or that it might be the endpoint to law? In part, I am taking up the point made by Sophocles and embodied by Antigone, Creon, and Polyneices many centuries ago: at the basis of tyranny is confusion or anxiety about the burial of bodies, and at the (implicit) basis of democracy is comfort and reassurance about the burial of bodies. The burial or disinterment of bodies says something very fundamental about the nature of politics—and has, for 2,500 years. In part, however, I also take up the point made in the 2007 Washington Post article—a point derived from the linkage between Hurricane Katrina and the destruction of the World Trade Center, between FEMA and Homeland Security, and between, on the one hand, invisible, marginal populations being rescued (or not) from their sinking houses and, on the other, invisible, marginal populations being held in the not quite sovereign space of U.S. camps in Cuba, Afghanistan, Iraq, and elsewhere.
Each of these approaches to democracy—although in many ways quite different—are also in many ways similar. Each takes disintegrating, silent, unbounded subjects as the normative subjects of politics. In the first, the dead body defines democracy; in the second, the invisible occupant of the camp defines democracy. Each likewise takes the crisis as the foundation for everyday politics—each relies on a narrative of disaster (the incest of Oedipus, the tyranny of Creon, the wound to U.S. national pride, the demolition of a historic city) to produce a democracy of the day-to-day. When I say that the disaster represents both a normal and a normative form of democratic engagement, therefore, I mean that quite explicitly: the disaster is normal in that it is part of the everyday. It is normative in that it also defines the everyday.
In Chapter One, however, I also talked about the optimism embodied by the subject in ecstasy, especially vis-à-vis Agamben’s homo sacer. It may seem now that this optimism is misplaced—that there can be no optimism in the face of such destruction, there can be no optimism following upon so many stories of subjects ripped apart, buried alive, burned to death, or shot as ghouls and anarchists. I emphasize, however, that the optimism that I associate with the subjects of legal ecstasy is in no way an optimism that sees in the future some end to political violence—be it the political violence of states in crisis or the political violence of so-called healthy states in their day-to-day manifestations.
Rather, the optimism that I associate with subjects in ecstasy is an optimism related to their insistent nature.6 Not only do subjects in ecstasy have unique access to political truth and reality, but they insist on being heard. Both Mary Schloendorff and the long-dead bodies churned up in shattered cemeteries may have been in a bad physical state—may have lived horrific personal lives—but, politically, they simply could not be ignored. The political life of Mary Schloendorff became the foundation for a century of U.S. legislation on bodily integrity, and the political lives of the dead bodies in the cemetery became the basis of legislation on everything from liberal equality (in France and England) to disease control (in Turkey and the United States). The subject in ecstasy, in other words, represents the possibility at least of enduring and vocal political existence.
Indeed, a second reason to see the ecstatic subject as an optimistic figure is that this subject promises to destabilize the specious rationality that in the past has led so frequently to the demolition or coercive re-creation of political identities. The subject in ecstasy is not a political subject easily turned into an internal refugee. Linked not only to the admission but to the celebration of the relationship between political truth and unbounded irrationality, the subject in ecstasy becomes a figure whose political existence is virtually unassailable.
If we accept legal ecstasy as our starting point, for example, it is difficult to imagine an endpoint at which an individual must maintain x, y, or z characteristics in order to enjoy full citizenship rights—and in which citizenship rights disappear along with the disappearance of x, y, or z characteristic. Legal ecstasy involves the blurring of even the most basic distinctions between individual and individual—it demands that x, y, and z be unknowable, and in constant flux. Again, to make this point concrete, Schloendorff and Polyneices may have been in a bad place, but this was certainly not because either had been deprived of a political identity. As subjects in ecstasy, they were indefinable and therefore the very basis of politics. If we accept that law ends in disaster—that the subject in ecstasy is the normative subject of politics—we can thus start to think about legal and political structures in a new way. The violence by no means evaporates—but it is resituated, open to alternative analyses.
And it is for this reason that I have both implicitly and explicitly relied on the insights and methodologies provided by feminist theory throughout this book. If there is a field that lends itself to dynamic and multiple analyses of law, subjectivity, and violence, this field is feminist theory. Embedded in each of the stories that I have told—stories of blood transfusion and national identity, of dismemberment as a progressive political act, of disease control used to produce hysterical subjects, of death tolls and disinterment as means of granting rights to corpses, of the living-dead ghouls who assault these rights, and of camps and cemeteries replacing public squares and monuments—is likewise a story of gendered or sexed subjectivity. As Braidotti has argued, it is primarily in the field of feminist theory that the subject in crisis—be it a metaphysical, political, or natural crisis—has been engaged. It is primarily in the field of feminist theory that the relationship between shattered subjects and political or legal structures has been described in detail.
That the rhetoric of feminine hysteria embodied by Mary Schloendorff, for example, should provide the basis for the postdisaster gift of life is something that makes sense only if we recognize the centrality of the gendered or sexed subject. There may or may not be direct mention of women or sexual identity in narratives of this gift—in the narratives of transfusions, transplants, and disease control—but these narratives are nonetheless indebted to three centuries of assumptions about the nature of women’s embodied or disembodied sexuality. The connection between Schloendorff ’s hysteria and dismemberment on the one hand and the gradual elaboration of the democratic subject, possessed of the inviolable right to bodily integrity, on the other, is precisely the sort of connection that feminist theory seeks to analyze. When Henrietta Moore notes, for instance, that from a Lacanian perspective, “the body as it is experienced and perceived by the child is fragmentary, a body-in-bits-and-pieces. Out of this biological chaos of sensation and physiological activity will be constructed a lived anatomy, a psychic map of the body which is given not by biology, but by significations and fantasies (both personal and collective) of the body,”7 she is commenting on the particularly political implications of physical dismemberment and linguistic (or legal) reintegration. When Butler asks three years later, “what does it mean to embrace the very form of power—regulation, prohibition, suppression—that threatens one with dissolution in an effort, precisely to persist in one’s own existence,” 8 she is likewise asking a question about the disintegrating subjects of law and politics. Both Moore and Butler are describing a seeming contradiction between the linguistic or legal insistence on coherence that in turn relies on a psychic or even physical incoherence. Each is addressing this contradiction from the perspective of shifting sexed or gendered subjectivity. And each is finding a potential source of optimism in the very confusion that seems to make all activity meaningless.
Although I have written this book primarily as a description of the laws that attempt to bind the ecstatic subject, I have also described the ways in which these laws relate to the subject’s potential activity or lack thereof. Butler’s question is, again, what does it mean when subjects turn toward the law as the source of both their existence and their disintegration? The question with which I initiated this book was, what does it mean when the law seeks to define a disintegrating or ecstatic subject as the political norm? Although Butler takes the subject as her starting point and I take the law as my starting point, we are nonetheless each drawing on gender studies methodologies as a means of addressing related contradictions in the politics of freedom and security. We are each asking what this particularly gendered form of democracy looks like.
Although the democracy defined by the decomposing, disintegrating corpse from Chapter Four may seem to have little to do with the ways in which women navigate legal and political systems, in fact it is a democracy very much gendered and sexed. If nothing else, Antigone’s traditional role as the representative of this type of politics—this democracy of dead bodies—suggests a connection between her precarious gendered subjectivity and the likewise precarious subjectivity of her disinterred brother. It is precisely what Nussbaum calls Antigone’s “morally superior” desire to be dead and beloved by the dead that leads to the democratic moment at which Antigone (and her brother) become political subjects rather than objects. And it is therefore Antigone’s ecstatic, disintegrating, gendered subjectivity that makes her democratic activity possible. As Butler argues, building on her existing work on gender and melancholy,
melancholia [uncompleted grief] rifts the subject, marking a limit to what it can accommodate. Because the subject does not, cannot, reflect on that loss, that loss marks the limit of reflexivity, that which exceeds (and conditions) its circuitry. Understood as foreclosure, that loss inaugurates the subject and threatens it with dissolution.9
Democracy defined by the disintegrating, disinterred corpse is thus a melancholic democracy—in which it is precisely the dissolution or shattering of the gendered subject incapable of articulating desire that likewise “inaugurates” this same subject as (I am arguing) a political actor.
In Butler’s work, this melancholic, shattered subject is often, although certainly not always, silent—not dissimilar from Agamben’s homo sacer. As Braidotti has suggested, however, the shattered subject need not necessarily be a quiet one—“non-unitary identity” in her writing is frequently described as a “process of resistance.”10 I must stress, in fact, that although Nussbaum, Butler, and Braidotti are not writers who ordinarily have a great deal in common with one another, they do seem to be moving in similar directions here. Each describes the difficulties or complexities of political engagement, each situates her description within an implicit or explicit story of gendered subjectivity, and each concludes with an implicit or explicit proposal for destabilizing or undermining the narratives that (inappropriately) produce and destroy these subjects. Each has thus appeared throughout this book as I have tried to contextualize the law of disaster—and the democracy that it underlies—within these theories of sexed and gendered subjectivity.
Finally, the camps and cemeteries that serve as ecstatic backdrops to the subjects of disaster law may seem to be spaces defined by a (self-conscious) “masculine” military rule. But they are also spaces in which it is arguably precisely the uncertain, indefinable movements of gendered and sexed actors, actors tied neither to the fantasy of the public nor the fantasy of the private, that are the norm. To the extent, therefore, that there exists a relationship between ecstatic space and the ecstatic subject—a relationship that eventually makes the disaster intelligible—this is a relationship most effectively addressed through the lens of feminist theory. Whether feminist scholars are challenging the notion that representation within knowable space is an act of violence, or whether they are supporting it, they are providing a framework for thinking about the subjects and spaces of disaster law.
In their discussion and critique of Butler’s work, for instance, Abigail Bray and Claire Colebrook state that, “by questioning the idea that representation is a ‘break’ with the fullness of reality, or that the body is, to use Butler’s terminology, a ‘constitutive outside,’ we suggest that feminism rethink its antirepresentationalism. The body is not, we argue, a necessary outside produced by the limiting violence of representation.”11 They continue, “for Butler, discourse cannot include the outside; exteriority may be known or thematized through discourse but is not itself discursive. It is this boundary between signification and the constitutive outside that has produced the feminine as a sexed and prerepresentational materiality.” 12
If we understand ecstatic space—like Butler does—as the exterior space that (a) cannot be represented and therefore (b) is a necessary foundation for what must be represented, then its relationship to the law of disaster becomes clear. Ecstatic space in its very inability to be defined, in its very obscenity, makes the disaster politically meaningful. Likewise, if we understand the relationship between—or conflation of—ecstatic space and ecstatic bodies as Butler does, then the paradoxical nature of the subject of disaster law becomes similarly apparent. At the same time, however, if we take Bray’s and Colebrook’s critique of Butler as a starting point, the relationship among ecstatic spaces, ecstatic bodies, and the subjects of disaster law can likewise be articulated. If representation is not a complete break with reality, if the body as a space can be a site of creative opposition, then legal ecstasy can likewise be a mode of positive activity.
I end, therefore, by revisiting the new policy recommended by FEMA from the perspective of the gendered, sexed, and shattered subject. Again, the notion that disaster areas should be inaccessible to anyone except politically vetted “professionals” raises a number of traditional liberal concerns about freedom of information, freedom of movement, and freedom of speech. If we consider this policy as a prime example of legal ecstasy and the new politics of disaster, however, it can be read less as an assault on liberal freedoms, and more as an assault on the security-based authoritarianism that apparently produced it. FEMA and Homeland Security are now explicitly recognizing the subject in ecstasy as the normative subject of disaster law and the law of the day-to-day. More than that, they are attempting both to regulate and codify—to define and to bind—this subject. By definition indefinable and unbounded, however, the ecstatic subject necessarily eludes this process—and thereby highlights the fractures in FEMA’s policy. Just as the gendered subject of liberal politics gradually came to personify the crisis of liberalism, in other words, the ecstatic subject of the politics of security arguably personifies the disintegration of any effective authoritarianism. Again, the violence does not disappear. But a new vocabulary for addressing it does become possible. As Butler has suggested, “perhaps only by risking the incoherence of identity is connection possible . . . [perhaps] only the decentered subject is available to desire.”13