Badiou's Nocturnal Jurisprudence

Electronic copy available at: http://ssrn.com/abstract=1134343

STRAMIGNONI.FINAL.VERSION 5/1/2008 12:19:26 AM

2361

BADIOU’S NOCTURNAL JURISPRUDENCE

Igor Stramignoni*

“[T]hen Justice . . . flew to heaven and found her place in the sky Where still in the night she appears to men”

[Aratus] “Ultimately, the owl of Minerva only takes off when night falls”

[Alain Badiou] “Even still in the timeless dark you find figures a comfort”

[Samuel Beckett]

In memory of Alexandra Matvijevna Dubina Gra

I. ABSTRACT How, in the philosophy of Alain Badiou, is the relation between

thought and language, the true and the legal, between philosophy itself and the impersonal transcendental field made possible through the occurrence of unexpected events? With and against Badiou, I argue that such a relation is one of subtraction and so similar to that which from time immemorial has permitted the somewhat enigmatic dominion of night and day in nature and culture alike. What then might be at stake in Badiou’s nocturnal jurisprudence, in his subtractive discourse of the truth of the legal?

* Department of Law, London School of Economics and Political Science. I thank Ray Brassier, Peter Goodrich, Vincent Lloyd, Alberto Toscano, and Bill Widen for their helpful comments over earlier drafts of this paper (usual disclaimers apply). Special thanks go to the Jacob Burns Institute of Advanced Legal Studies at Cardozo Law School and to the organizers of the Conference on ‘Law and Event’ held in New York City on 11 and 12 November 2007 for kindly inviting me to speak on the subject of Alain Badiou’s philosophy and its implications for law. The circumstance that Alain Badiou was there listening so attentively to each and every paper and “weaving” some of their claims into his own closing remarks to the Conference, no doubt added a certain productive immediacy or, dare I say, “nocturnal” quality to the event.

Electronic copy available at: http://ssrn.com/abstract=1134343


2362 CARDOZO LAW REVIEW [Vol. 29:5

II. ARATUS

Aratus today is but a name, but it is linked to a wondrous event

occurring time and again in the history of humankind and yet raising each time the same difficult question. Pliny the Elder, writing in the first century AD, relates the story well known in the past of how in the second century BC a new star had suddenly appeared in the night sky, persuading the Greek scientist Hipparchus of Nicaea that the Universe was not as fixed as previously thought. Its darkness, as it turned out, had a depth that might hide unexpected surprises. It is not easy for us today to imagine just how influential the presence of the Universe, the presence of the night sky, could be for the cultures of the past. In 370 BC, over two hundred years before Hipparchus’ discovery, the mathematician and astronomer Eudoxus of Cnidus had composed a key astronomical work that recapitulated the wisdom of antiquity and that ninety years later, in 270 BC, Aratus of Soloi would put into verse and entitle Phenomena. The work of Eudoxus reiterated that the Universe was unchangeable and that its stars were fixed while the Sun, the Moon, and the planets traced their own independent paths through the sky. What that meant for Eudoxus, however, was that unexpected surprises such as a new star must be a regular, and not, as it might have seemed to the naked eye and as antiquity had generally held, a random affair. So now that a new star had appeared in the sky, what Hipparchus needed to do was to hurry to his table and pen down the most luminous stars of the day, for future memory, so that the distance and movements of the stars could be studied and their order discovered notwithstanding the teaching of antiquity dismissing change as impossible or meaningless. Innumerable subsequent astronomers would repeat the same gesture, registering change whenever they saw it, but increasingly a difficult question could no longer be avoided nor, indeed, properly answered: how is one to name the mathematical order and physical truth of that which may suddenly appear from nowhere? That is to say, how is one to compare or to accommodate movement with fixity, the new with the old, the unknown and unexpected with the known and expected, the unauthorised or not-legal with the authorised and legal? In short, how, precisely, to do justice to the unexpected?

Three years later, in 137 AD, the Greek astronomer Ptolemy compiles in Alexandria in Egypt the Almagest, a copy of Hipparchus’ catalogue. It is with Ptolemy, Alexandre Koyré explains, that a break finally occurs between mathematical and physical astronomy. From then on the position of the celestial bodies, not the mechanics of their


2008] BADIOU’S NOCTURNAL JURISPRUDENCE 2363

movement, will increasingly be top on the scientific agenda.1 Meanwhile, the Christian era had started in earnest, Basilides, Valentius, and Irenaeus were soon to develop their revolutionary views on the metaphysical nature of the Universe, and Ptolemy’s work would reign sovereign and largely unchallenged until the Renaissance and beyond, when in the sixteenth century Copernicus eventually showed that the Earth is a planet and that the Earth and the other planets orbit around the Sun. To this day, the oldest available copy of the Almagest is a Greek translation of the 9th century AD.

In Aratus’ Phenomena we find a puzzling line: [T]hen Justice . . . flew to heaven and found her place in the sky Where still in the night she appears to men.2 How was it that Justice, as Aratus suggestively put it, had taken to

the night sky? And above all, what might be at stake in her nocturnal appearance to human beings? There are several possible answers to the questions that Aratus’ imaginative but irrevocable theory of the past seems to be addressing, yet one of them at least became common currency in Western thought and was finally assigned to posterity when Plato happened on the scene. From some time before Plato, Aristotle, Eudoxus, and Aratus, the progressive dematerialization of the Greek cosmos had commenced. Now, for Plato, the study of the stars compels the soul, not merely the eyes, “to look upwards,” leading “from this world to another.”3 That split suggested circulation, and so order, even transcendence, not fixity or randomness as was thought to be the case in antiquity, although movement, orderly or random, could only be possible, Lucretius would note, on the assumption of the existence of the void.4 Still, Plato’s observation impressed a new spin to all sorts of questions, including the question of what might be at stake in Justice’s nocturnal appearance to humankind and the related question how to do justice to the unexpected—look elsewhere for Justice, not here, for Justice is in circulation from one world to another—although now, as a consequence, the concept of Justice began to be greatly transformed. Or Justice itself, no longer the indifferent yet dependable presence that it had been in the past, would start shining, somewhat more promisingly and yet by now so much more enigmatically,5 deep into the night.6 1 ALEXANDRE KOYRE, ÉTUDES D’HISTOIRE DE LA PENSEE SCIENTIFIQUE 93 (1966). It will not be until Kepler that the unity of mathematics and physics will be reconstituted. Id. at 96. 2 SOLOENSIS ARATUS, SKY SIGNS: ARATUS’ PHAENOMENA 130-134 (Stanley Lombardo trans., 1983). 3 7 PLATO, THE REPUBLIC 528-529. On Greek notions of vision as the stuff of consciousness, see R. B. ONIANS, THE ORIGINS OF EUROPEAN THOUGHT 76 (1951). On the works of Eudoxus and of Aratus and their complicated relation to the wisdom of the ancient, see FLORENCE WOOD & KENNETH WOOD, HOMER’S SECRET ILIAD (1999). 4 LUCRETIUS, DE RERUM NATURA 329–417. 5 The enigmatic nature of Plato’s form of Justice seems to be relatively uncontroversial:



III. THOUGHT, NOT LANGUAGE

Clearly French philosopher Alain Badiou is no friend of authority.

He is no friend of the law. Even in Saint Paul, one of the works where Badiou more explicitly in my view tackles one of law’s most persistent knots, the possibility and significance of the new, there is ultimately a certain distance between Badiou’s discourse of truth and the legal, whether one takes the legal to mean the posited letter of the law or its context, economy, or nature.7 Or, Badiou’s “jurisprudence”—by which I mean what his discourse may suggest of the truth of the legal—is quite literally split.8 Truth has no interest in the legal, nor does the legal have any interest in the truth. They are, in a way that will have to be further examined, worlds apart. Nevertheless the legal, its authority and hold, are always present at the outer edge of Badiou’s discursive space, in Saint Paul as elsewhere. The legal, it would seem, plays in the hands of the true, and the true plays in the hands of the legal. How might that be? Simply put, Badiou’s legal appears to belong to the thought of the day, while the true, by contrast, appears to be shining deep into the night. To paraphrase Beckett, the legal is there, the true is here, and

“[T]he Form of Justice, like Plato’s theory of Forms generally . . . is anything but straightforward.” Eric Heinze, Epinomia: Plato and the First Legal Theory, in 20 RATIO JURIS 97, 107 (2007); Eric Heinze, The Status of Classical Natural Law: Plato and the Parochialism of Modern Theory, in 20 CAN. J. L. & JURIS. 323 (2007). 6 In what follows I shall be moving freely on the plane of metonymy between the image of the night and those of the night sky, or of the starry sky of the night, or of humankind’s nocturnal thoughts. 7 ALAIN BADIOU, SAINT PAUL: THE FOUNDATION OF UNIVERSALISM (Ray Brassier trans., 2003) (1997) [hereinafter BADIOU, SAINT PAUL]. Here I refer to the legal in a general sense and so say nothing of Badiou’s notions of state¸ of representation, and of the excess of representation over representation (Meditations 8 and 9 of Being and Event) as this would focus attention on the state and its laws (droit objectif) at a time when many would object that the multiplication of the normative (“juridification”) may have decentralized the role of the state and of its laws in relation to the social. On the question of the new in Badiou’s work, see Alain Badiou, Can Change Be Thought? A Dialogue with Bruno Bosteels, in ALAIN BADIOU: PHILOSOPHY UNDER CONDITIONS 237-261 (Gabriel Riera ed., 2005) [hereinafter RIERA, CONDITIONS]. See also BRUNO BOSTEELS, On the Subject of the Dialectic, in THINK AGAIN: ALAIN BADIOU AND THE FUTURE OF PHILOSOPHY (Peter Hallward ed., 2004) [hereinafter BOSTEELS, THINK AGAIN]. 8 I use quite deliberately the term jurisprudence and the expression truth of the legal generically to designate any form of critical engagement with the legal. This would include the sort of singular engagement with the normal, diurnal language of the law encouraged in my view by Badiou’s thought—one exposing non-objective, non-mechanistic, non-predictable, non-verifiable, in short, non-positivistic, non-legal, science or knowledge out of the increasingly complex, normative and factual maze of legal concepts and categories, judicial decisions, statutory provisions, policy determinations, administrative regulations, legal instruments or artefacts, and what more, characterising today, to this day, in the light of that long day that today is, the so-called legal sphere. In that sense, Badiou’s philosophy or jurisprudence could be thematised just as well as a theory of adjudication that must first of all decide whether to look at the events of the day, or look away instead.



that is it. So for Badiou the question seems to be, what can be done at the edge of the legal, at the edge of the void, when night falls?9

When night falls the legal can be overcome or sidestepped, or so Badiou hopes to do with a gesture similar to that of Socrates in Plato’s Symposium. Like modern science or modern political thought, modern law thought of itself in the plural, as essentially and later on as antagonistically dual: pater familias and familia;10 landlords and tenants; owners and owned; promisors and promisees; adjudicators and adjudicated; legislators and legislated; etc. Then, Badiou would argue, followed for thought the “Age of the Poets,” constituting, from within poetry or language, “that general space of reception for thought and the generic procedures that philosophy . . . could no longer establish.”11 That is when sophists and poets began to substitute historicity for objectivity or materialism by setting “the strength of the rule, and, more broadly, modalities of the linguistic authority of the Law against the revelation or production of the true.”12 Badiou wants to release us from that pervasive, uniform, one might even say global law of thought, or thought of the legal, by sidestepping what could be described as thought’s resulting shadow, the sombre, opaque, seemingly infinite text of contemporary thought, philosophical discourse, or jurisprudence, vis-à-vis its plural, presented selves.13 Such a space feels ghostly, regularly diverted or postponed—an effect of language, Wittgenstein warned us, or perhaps even a pure indication beyond language but most definitely not thought, philosophy, or jurisprudence itself—and Badiou wants us to think again just that. “Almost all of our ‘philosophers’ are in search of a diverted writing, indirect supports, oblique referents, so that the evasive transition of a site’s occupation may befall to philosophy’s 9 We will see in due course how the law has in the past feared the night before succeeding, for a time, to domesticate it. But similar questions could of course be asked of the equally circular relation of philosophy to a number of other “disciplines,” except that, to the extent that we may feel that we live in an increasingly complex world, law appears to have become more salient than ever before as a generalised language or modus operandi with which philosophy may need to come to terms. 10 This time-honoured institution of Roman law became a pillar of the Napoleonic Code of 1804 and so of the law of many modern nation states ever since. See PHILIPPE ARIES & GEORGES DUBY, 4 A HISTORY OF PRIVATE LIFE (1990); JEAN-LOUIS HALPERIN, HISTOIRE DU DROIT PRIVE FRANÇAIS DEPUIS 1804 82 (1996). 11 ALAIN BADIOU, MANIFESTO FOR PHILOSOPHY 69 (1999) [hereinafter BADIOU, MANIFESTO]. 12 ALAIN BADIOU, The (Re)turn of Philosophy Itself, in BADIOU, MANIFESTO, supra note 11, at 118 [hereinafter Badiou, (Re)turn of Philosophy]. “[W]hat the ancient and modern sophist claims to impose is precisely that there is no truth, that the concept of truth is useless and uncertain, since there are only conventions, rules, types of discourse or language games.” Id. at 119. 13 When all becomes but a shadow, everything is lost, including one’s own shadow. See JEAN BAUDRILLARD, THE TRANSPARENCY OF EVIL: ESSAYS ON EXTREME PHENOMENA (1993). For a modern history of the shadow, see MICHAEL BAXANDALL, SHADOWS AND ENLIGHTENMENT (1995).



presumably uninhabitable place.”14 Language, like religion and law, gathers and binds. By contrast Badiou wants to distinguish, separate, or split—“breaking the rule” by assigning philosophy to philosophy, science to science, politics to politics, poetry to poetry, and love to love. It is only by separating philosophy and the rest that, Badiou maintains, philosophy can return to shine or to circulate and a truth can again be figured out in order, somehow, to do justice to the event.15

Badiou’s is a tall order—how to think thought-as-language afresh, how to reconceptualize what may be a mere shadow, that which by definition will escape any firm definition, clearing up, or settling down. Badiou’s strategy is to a-void thought altogether, to reset language, to separate the true from the legal in order to set the true free and allow it once again to operate concretely on the tableau of ideas. Being, Badiou argues, has always lain in the mathematical, not in philosophy or language. Accordingly, it is matheme, rather than philosophy or language which will tell us why there is something rather than nothing. Hence philosophy, a discourse concerned with the truth of being, is other than ontology, the mathematical science of being qua being.16 Instead, philosophy’s job must be to propose each time a possible configuration of the truths of the age. What is more, the matheme can be trusted to offer a more rigorous statement on being than the philosopheme will ever be able to offer.

So then, Badiou does not wish to dwell on the unstable text of the legal that follows from what he suggestively or psychoanalytically or cinematically calls the successive “sutures” of thought or philosophy to science, politics, poetry, and love.17 He does not wish to dwell on the language of parliamentary democracies, human rights, or Western law.18 14 BADIOU, MANIFESTO, supra note 11, at 28. See also Badiou, (Re)turn of Philosophy, supra note 12. It has been remarked how by now the positions criticised by Badiou may have weakened: Alberto Toscano, To Have Done with the End of Philosophy, 9 PLI 220, 221 (2000). 15 Here I use the expression “to do justice to the event” as including both the notion of “doing justice to the unexpected” introduced above, supra Part II, and Badiou’s more specific idiom of faithfulness. But see Alexander Garcia Duttman, What Remains of Fidelity after Serious Thought, in BOSTEELS, THINK AGAIN, supra note 7, at 202–207. 16 For Badiou both philosophy and mathematics as ontology are discourses. See, e.g., ALAIN BADIOU, BEING AND EVENT 8, 13, 18, 31 (Olivier Feltham trans., 2005) [hereinafter BADIOU, BEING AND EVENT]. 17 See BADIOU, MANIFESTO, supra note 11, at 64-67:

[I]f philosophy is threatened by suspension, and this perhaps since Hegel, it is because it is captive of a network of sutures to its conditions, especially the scientific and political conditions, which forbade it from configurating their general compossibility. . . The gesture I propose is purely and simply that of philosophy, of de-suturation. It so happens that the main stake, the supreme difficulty, is to de-suture philosophy from its poetic condition.

On the concept of “suture” in Lacanian psychoanalysis and film theory, see Jacques Alain Miller, Screen: Elements of the Logic of the Signifier), in 28 SCREEN 24 (1977-1978). 18 ALAIN BADIOU, LE SIECLE (2005); BADIOU, SAINT PAUL, supra note 7. As Alberto Toscano puts it, Badiou’s very originality lies in being “one of the very few deft philosophical



Nor is he, however, a shepherd of Being. Not that Badiou denies the centrality of language and difference. With and against Heidegger, Badiou in fact recognizes that today’s thought—whether scientific, political, amorous, poetic, or even legal—is object-less, that truth and knowledge sustain one another by opposing one another, and that our epoch is essentially disoriented. Indeed, he unequivocally declares, “Being is essentially multiple” and “[w]e cannot revoke the without-being of the One nor the limitless authority of the multiple.”19 However, Badiou cannot accept philosophy’s decline as a consequence of Wittgenstein’s games or Heidegger’s overall, ecstatic assessment of today’s possibilities of Being.20 Instead, I want to suggest, Badiou wishes to step out of the shadow and plunge into the brisk, bright darkness of the night that cyclically must follow law’s twilight, law’s ubiquitous shadow—and take from there. For, Badiou forcefully claims, the truth is that there are truths and that thought must be able to seize them.

IV. THE SITE OF PHILOSOPHICAL THOUGHT

So Badiou’s philosophy offers itself as a site where the truths of an

epoch—resulting from the domains of science, politics, poetry, and love—can be figured out in their mathematical compossibility.21 These truths are “uniform procedures recognizable from afar, whose relation to thought is relatively invariant.”22 As such, they are no ordinary “truths” or knowledges, but rather non-linguistic truths which “stand out from the cumulation of fields of knowledge by their eventful origin.”23 Accordingly, a jurisprudence mirroring Badiou’s philosophy would be doing just that: exposing the non-metaphysical truth of those truths, that is to say, the compossibility of the scientific, political, linguistic, and polemicists around in a time when the democracy of thought serves mostly to hide the lack of rigor and conviction.” Toscano, supra note 14, at 222. 19 BADIOU, MANIFESTO, supra note 11, at 103. 20 “For this reason, the fundamental criticism of Heidegger can only be the following one: the Age of the Poets is completed.” Id. at 74. On an instructive comparison with Gilles Deleuze as Badiou’s “intimate adversary,” see Toscano, supra note 14, at 221, 229. 21 “My problem is not . . . that of foundations, for that would be an advance within the internal architecture of ontology whereas my task is solely to indicate its site.” BADIOU, BEING AND EVENT, supra note 16, at 14. On the role in Badiou’s philosophy of mathematics and logic, particularly set theory and category theory, see Jean-Toussaint Desanti, Some Remarks on the Intrinsic Ontology of Alain Badiou, in BOSTEELS, THINK AGAIN, supra note 7, at 59–66. See also NORMAN MADARASZ, On Alain Badiou’s Treatment of Category Theory in View of a Transitory Ontology, in RIERA, CONDITIONS, supra note 7. 22 BADIOU, MANIFESTO, supra note 11, at 33. 23 Id. at 36. Because of the rarity of the event Badiou’s “événemential” is not properly captured by the English term “eventful.” Toscano, supra note 14, at 225. The term “evental” today appears to be generally regarded as a better term to use.



amorous truths of the age, in the pursuit of a mathematically inferred justice.24 Forget jurisprudence, then, at least jurisprudence as normally understood, jurisprudence as (broadly) interpretation. “Truth has no interest in interpretation; instead,” according for example to Jason Barker, “truth exposes the gaps of our understanding.”25 Just laws, for Badiou, must be the result of just that.26

Badiou’s truths are those nominated by the subject and configured by philosophy upon the occurrence of an event. They are, Peter Hallward explains, “exceptional affirmative sequences through which an instance of pure conviction comes to acquire a universal validity.”27 Here some might suspect Badiou of pre-modern allegiances—the event, he says, is “a pure Outside”28—though such a reading would be unlikely to hold as the event is best understood as an internal interruption of the structure of a situation.29 The event interrupts the daily, diurnal language of a situation by linking up with the void out of which that particular situation could be counted as one and then presented as multiple,30 and it does so, Gabriel Riera argues, as a “non-empirical, ephemeral, and insubstantial passage that cannot be assigned to any stable element of the situation in which it takes place.”31 That is why, Riera adds, “[t]he event’s modality of manifestation is that of the eclipse: it is a fading and fragile appearing that produces the dispersion of the site’s elements.”32 24 “Justice” for Badiou is a philosophical word. More concretely, it is “that through which a philosophy designates the possible truth of a politics” when it succeeds to “discern a common trait within [otherwise] discontinuous sequences: namely, the strictly generic humanity of the people engaged in them.” ALAIN BADIOU, METAPOLITICS 97 (Jason Barker trans., 2005). However, one must be careful for “justice, which is the philosophical name for the egalitarian political maxim, cannot be defined.” Id. at 99. 25 JASON BARKER, ALAIN BADIOU: A CRITICAL INTRODUCTION 4 (2002). 26 BADIOU, BEING AND EVENT, supra note 16, at 15; SAINT PAUL, supra note 7. 27 Peter Hallward, Beyond Formalisation, 8 ANGELAKI 111 (2003). 28 Alain Badiou, The Event in Deleuze, 2 PARRHESIA 37 (2007) [hereinafter Badiou, The Event in Deleuze]. 29 But see on this point DANIEL BENSAÏD, Alain Badiou and the Miracle of the Event, in BOSTEELS, THINK AGAIN, supra note 7, at 94–105. 30 See BADIOU, BEING AND EVENT, supra note 16, at 24-25:

[T]he multiple is the regime of presentation; the one, in respect of presentation, is an operational result; being is what presents (itself). On this basis, being is neither one . . . nor multiple . . . I term situation any presented multiplicity . . . Every situation admits its own particular operator of the count-as-one. This is the most general definition of a structure . . . It is . . . always in the after-effect of the count that presentation is uniquely thinkable as multiple, and the numerical inertia of the situation is set out. Yet there is no situation without the effect of the count, and therefore it is correct to state that presentation as such, in regard to number, is multiple.

In other words, it is the counting-as-one that determines the One as the ground of the presentation of the multiple as a situation—thus making a law of the One. 31 RIERA, CONDITIONS, supra note 7, at 4. 32 Id. at 11. The figure of the eclipse is recurrent in Badiou: see, for example, BADIOU, MANIFESTO, supra note 11, at 62; ALAIN BADIOU, THEORETICAL WRITINGS 115 (Ray Brassier & Alberto Toscano trans., 2004, 2006). But elsewhere the event is explicitly described as a



“Let us say,” Badiou argues, “that everything in philosophy that is somewhat progressive and that does not inherit a completely rotten view of politics somehow hovers around the notion of the event.”33 Badiou’s philosophy thus follows up on the appearance of an insubstantial, spaceless event, a point in space, a flash, an eclipse, a sudden aphasia, a pointing of a compass, a fall from a horse, a fall-out with the law.34 It is only thus, it is only upon that inaugural, incalculable, unpredictable, but ultimately liberating event that one can undertake, Badiou argues, “a general examination of the conditions under which [philosophy] is possible.”35 So the possible and the potential, truth and the event, and so then philosophy and language, are both related and yet strangely distant from one another—which is why philosophy must start, like Badiou’s Manifesto for Philosophy does, with a non-antagonistic “not necessarily so” to the situation: a “not necessarily so,” first of all, to the end of philosophy; a “not necessarily so,” on the other hand, to its century-long pre-eminence; a “not necessarily so” to philosophy as ontology; and a “not necessarily so,” one might add, to anything other than “Pauline” jurisprudence.

That may well be so but then, again, just where precisely would be Badiou’s thought, philosophy, or jurisprudence taking place if not in a swift seizing of the truths of the age, in a prompt yet rigorous doing justice to the event? And if that is the case, then, one might wonder, how precisely would that seizing be? These questions seem relevant for, Badiou himself recognizes, “philosophy no longer knows whether it has a suitable place”36 and yet when singular events happen “great conceptual questions” arise “which must be philosophically projected in a unique space (where thoughts of our time will be thought).”37 This

supposes a complex space of thinking whose central concept is that of the objectless subject, itself the consequence of genericity as the faithful becoming, in being itself, of an event supplementing it. Such a space, if we manage to organize it, will greet the contemporary figure of the four conditions of philosophy.38 Badiou’s subject or demiurge may well have ideas—wondrous

events may well be appropriated by their would-be subjects—but just how is the philosopher to relate, on their part, for Badiou, to the “impersonal transcendental field” that those ideas can generate?39

“disappearing.” BADIOU, BEING AND EVENT, supra note 16, at 191–198. 33 Bruno Bosteels, Can Change Be Thought?, in RIERA, CONDITIONS, supra note 7, at 247; Badiou, The Event in Deleuze, supra note 28. 34 BADIOU, SAINT PAUL, supra note 7 at 46. 35 BADIOU, MANIFESTO, supra note 11, at 27. 36 Badiou, (Re)turn of Philosophy, supra note 12, at 113. 37 BADIOU, MANIFESTO, supra note 11, at 89 (italics are mine). 38 Id. at 96. 39 Badiou employs this Sartrean expression in Event in Deleuze, supra note 28, at 37.



Where and how is the space of the seizing of the truths of the age, of a doing justice to the event? Surely philosophy, for Badiou, is an immanent exercise. Thus philosophy must be able today to think the generic there and then, and to realize just how no situation, no presented multiplicity can ever be final, fixed, that is to say, without itself an end, or truly infinite. Still, the difficult question remains just how that would be, and how could philosophy think the generic there and then without falling pray to the stabilizing, locking up power of language. For surely that very seizing must be a relinquishing, an abandoning of the old truths as well as an abandon to the new truths of the age.40 Quite how that could be when, Badiou admits, philosophy is everywhere in chains, everywhere under the spell of the thought of the day, requires further consideration.

With a mind to clarifying, however indirectly, whether Badiou’s critique or Pauline jurisprudence might be seen to amount to what I would call a theory of the comparative in general, particularly, something like a jurisprudence of emplacement and of suspension or reversal of the edge, here I want to suggest, with and against Badiou, that Badiou’s philosophy or jurisprudence might need to be explicitly recognized as a nocturnal rather than as an implicitly diurnal philosophy or jurisprudence—in so far at least as one wishes to take advantage of Badiou’s powerful critical apparatus that, admirable though it is and despite Badiou’s own protestations to the contrary, might risk fixing, transfixing, or “picturing” our future and us within it. Or, in Heideggerian terms, Badiou’s discursive space might risk ending up being critiqued as just one more instance of both a “technological” and “unjust” manipulation of that which “things” may happen each time to be.41 The day, today, must be, for Badiou, that of science, politics, poetry, or love. Forget philosophy, then, at least philosophy as we know it today, and forget familiar forms of jurisprudence too. But long live a new nocturnal philosophy, long live a new nocturnal, subtractive jurisprudence, and its strange but intriguing non-relation to the legal.

Not that Badiou would necessarily agree with this suggested course of action. Today, Badiou argues, philosophy’s twilight is marked by Heidegger’s ontological question, by the triumph of scientific rationality as the paradigm of thought, and by an increasingly popular post-Cartesian subject. That, Badiou points out, is the fading theatre of thought, its closure, but a closure that is also its opening, its openness, for one thing, to disparity. “My own intervention in this conjuncture,”

40 On “abandon,” see MARTIN HEIDEGGER, Beiträge zur Philosophie, in GESAMTAUSGABE 65 (1989); JEAN-LUC NANCY, L’IMPÉRATIF CATÉGORIQUE (1983); GIORGIO AGAMBEN, HOMO SACER (1995). 41 HEIDEGGER, supra note 40.



Badiou says, “consists in drawing a diagonal through it.”42 His prescription, in other words, is to dispel the twilight by looking resolutely through it and submitting oneself to it.43 Thus, far from deciding the end of philosophy, the end of wakeful daytime thought, Heidegger’s question may in fact, for Badiou, harbour a way of reactivating philosophy, just like the mathematico-logical revolution of Frege-Cantor may harbour a way of re-orienting rather than of relinquishing thought, and the post-Cartesian subject may harbour a way of permitting the productive re-articulation of antiquated conceptual dualities as well as of contemporary, if rather opaque, multiplicities.44

Badiou, moreover, would likely reject any suggestion that philosophy should be located anywhere in particular, whether night or day. That, in his words, would be disastrous. Not that philosophy (or indeed jurisprudence) would be new to that sort of rather infelicitous exercise. Quite the opposite, philosophy is routinely subjected to the “chronic temptation” of imagining itself as that which reveals, produces, or constructs Truth, leading it to aver that there is one single locus of Truth and so suggest an “ecstasy of place” that, together with the sacred of the name and with terror, will produce, precisely, nothing short of a disaster.45 That temptation must be avoided, however, by letting sophistry be. Sophistry, which today is continuously intent on challenging philosophy, must be simply assigned to its place.46

Yet I would ask, where might that drawing of a diagonal be properly possible if not in the luminous depths of night, neither dream

42 BADIOU, BEING AND EVENT, supra note 16, at 2. 43 “The task is not to lament its own demise, but to think through the ‘conditions’ of its renewal, and to prepare the ground for its possible return.” BARKER, supra note 25, at 4. 44 Many doubts have been entertained about the effective value of set theory, and not only by mathematicians—see, for example, CLAUDINE HERRMANN, Women in Space and Time, in NEW FRENCH FEMINISMS 168 (Elaine Marks & Isabelle De Courtivron eds., 1980). On the continued possibility of philosophy, see BADIOU, MANIFESTO, supra note 11, at 27-39. The question of the end of philosophy is a complex one. Riera for example suggests that, on the one hand, Badiou’s return to Plato should be read as the strategic starting point of his immanent ontology, so not as a deconstructive move that would expose him to the same charges of metaphysical nostalgia and a narrow comprehension of technology that Badiou himself levels against Nietzsche and Heidegger. On the other hand, Riera points out, Badiou still “operates on the hither side of the closure of metaphysics” to the extent at least that “the fact that the ‘One is not’ means that the essential possibilities of metaphysics are exhausted.” RIERA, CONDITIONS, supra note 7, at 6. Additionally, one could argue that Badiou may be confusing Heidegger’s warning that after Plato philosophy went down an irrecoverably instrumental path that only poetic thinking might be still capable, however minimally, to keep in check, with the prescription that, therefore, philosophy needs to be poetry if it wants to be saved. Heidegger in my view offers no such prescription. 45 “Thus, philosophy opens the way to disaster. Reciprocally, every real and, in particular, every historic disaster contains a philosopheme that knots together ecstasy, the sacred and terror.” Badiou, (Re)turn of Philosophy, supra note 12, at 129–131. 46 Id. at 132–133.



nor frantic daytime activity, that mark the boundary between the two?47 Is it not when the night sky sets in that new sutures other than the mathematic, the political, the poetic, or the amorous as they normally stand, in the light of day, may again appear to be properly possible? Is it not during the night that the old, daily truth as veracity (whether one takes that to amount to adequation or to verification), its subjects, and its knowledges, can be thought afresh as thought-as-philosophy resumes circulating, both freely and rigorously, between the matheme, the political, the poetic, and the amorous? For, Badiou explains, mathematics, not philosophy, is and has always been ontology, the science of being qua being—only, we could not know that until after Frege and Cantor. Nor, for that matter, was philosophy ever politics, poetry, or love. Instead, philosophy was always, already a spacing, a thoughtful naming (a nominating), a responsive weaving.48 “What philosophy must do,” Badiou insists, “is to propose a conceptual framework in which the contemporary compossibility of these conditions can be grasped.”49 What philosophy must do is to “attempt to organize an abstract vision of the requirements of the epoch.”50 What philosophy must do is to “weave a general space” whose register is never that of addition nor that of systematic reflection but rather that of the “liberty of movement, of a moving-itself of thought within the articulated element of a state of its conditions.”51 But then again, where else can that spacing, thoughtful naming, or weaving be the freest, the most unobstructed, the sharpest, if not in the nightly breeze that does and sometimes does not follow the frenzied business of the day?

Another way of putting this would be that Badiou’s philosophy, it seems to me, invites us to shift our attention away from the theatre, the market, or the spectacle of the legal, to the nocturnal, from the light or even the twilight or glare of the day to the ontological possibilities of the night. However the aim, it seems to me, is not to put theatre, market, or the spectacle of the legal away, however temporarily, and to 47 The thought of the pure multiple cannot be located in dream, lest we fall victim of the most fundamental impasse exhibited by Plato’s Parmenides: for dream excludes reality at the same time as it shows it. Nor, on the other hand, can the thought of the pure multiple be located in wakeful daylight reality as, after Heidegger, such a reality appears to be no more than the twilight preceding the openness of the night, as Badiou himself admits. What is left, then, is, it seems to me, the nightly sky and the nocturnal reckoning of the stars. On the immemorial links of astronomy and geometry and on the shift of geometry from the practical concerns of land measuring or surveying to a mental discipline and abstract discourse in the pursuit of wisdom, see AUDUN HOLME, GEOMETRY (2002), and J. L. HEILBRON, GEOMETRY CIVILIZED (2000). 48 For some first thoughts on a legal history of spacing see Igor Stramignoni, Francesco’s Devilish Venus: Notations on the Matter of Legal Space, 41 CAL. W. L. REV. 147 (2004). 49 BADIOU, BEING AND EVENT, supra note 16, at 4. 50 Id. 51 BADIOU, MANIFESTO, supra note 11, at 38. In other words, philosophy must configure “the becoming-disparate of the system of its conditions by construction of a space of thoughts of the time.” Id. at 39.



turn instead to the risky errancy of the night. In other words, there is to my mind nothing physical or metaphysical, or even mystical, in Badiou’s nocturnal jurisprudence.52 Rather, the theatre, the market, or the spectacle of the legal, are to be used, somehow, and to be improved as a technology, as an ultimately beneficial instrument of thought. “We shall not accept,” Badiou thunders, “that the word ‘technology’. . . is apt to designate the essence of our time.”53 “The meditations, calculations and diatribes about technology, widespread though they are, are nonetheless ridiculous.”54 Instead, such technology must be thought thoroughly through. “Not enough technology, technology that is still very rudimentary—that is the real situation.”55

V. THE THOUGHT OF THE NIGHT

I have been led to reflect upon the possibilities intrinsic to an

explicitly nocturnal thought, philosophy, or jurisprudence, on reading Badiou’s published exchange with Bruno Bosteels where Badiou admits, in passing, how “[u]ltimately the owl of Minerva takes off when night falls.”56 Rather than occupying the privileged place bequeathed to it by itself, Badiou argues, philosophy always arrives somewhat late, after the event. “This is why philosophers must constantly engage with the experiences of their time, have an ear for what happens, and especially listen to the antiphilosopher.”57 It is the event, then, that triggers a truth procedure, not philosophy—which is why philosophy is always engaged in a veritable “race against time.”58 To ease up the resulting, intolerable burden—both of thinking (falsely) to be in charge, and of realizing (quite correctly) to be always late—we need to return to Plato and to his clear injunction that thinkers be thinkers and poets be poets.

Thus the night, for Badiou, is the moment when a new order or configuration of the truths of the age can become clearer. It is the insistent space of philosophy, the extra-time of truth, the spectral figure of the scientific, the political, the poetic, and the amorous, which must be possible after the event, after the taking place of the non-legal in the

52 BADIOU, SAINT PAUL, supra note 7 at 51 ff. 53 Id. at 53. 54 Id. at 53. 55 Id. at 54. 56 Bosteels, supra note 33, at 254. Badiou’s expression is taken from G. W. F. FREDRIC HEGEL, Preface to ELEMENTS OF THE PHILOSOPHY OF RIGHT (1821). With and against Badiou I shall argue in what follows that such “nocturnality” might constitute an ultimately ineffective Platonic gesture (contra BEING AND EVENT, supra note 16, especially 34–37). 57 Bosteels, supra note 33, at 254. 58 Id.



midst of the legal. So one reason for evoking, with and against Badiou, the image of the night and metonymically that of the starry night sky, one point in letting the thought of the night appear next to the thought of the day, even next to the twilight of thought, is that the image of the night may be able to clarify the strange relation that in Badiou runs between the true and the legal.59 How does the nocturnal relate to the diurnal? Where and how is the nocturnal—philosophy itself—determined vis-à-vis the diurnal, vis-à-vis the official, the legal, the textual? By whom? For whom? And can that separation, today, be actually maintained? Such larger questions can only be hinted at here yet they seem salient if only because from time immemorial the nocturnal as well as the diurnal provided humankind (and not just homo Europaeus) with the daily contours of world and of beings, and justice is born of the sky.60 Thus, interestingly enough, argued Giambattista Vico in the New Science.61 “Awoken from its stupor by the lightening bolt,” as Robert Pogue Harrison puts it in his work on the forests of civilization taking its lead precisely from Vico’s archaeology of culture and of the metaphor of the sky, “the human mind laboriously created the civic world and eventually attained its greatest achievements, namely science, metaphysics, and the institutions of human justice.”62 And it is indeed “since Greek and Roman times at least” that, Harrison continues, “we have been a civilization of sky-worshippers, children of a celestial father.”63 Which is how what Vico called the “temples of the sky” (templa coeli)64 became our “first tables of science,” whether physically or metaphysically understood.65

On that ancient disposition, however, the night and metonymically the starry sky of the night soon become that which constantly challenges 59 Gérard Genette defines day and night as a “privative opposition” between a “marked” term (night) and an “unmarked one” whereby the former is “celui que l’on marque et que l’on remarque.” GERARD GENETTE, Le Jour, La Nuit, in 2 FIGURES 101, 104 (1969). Other key works touching on the theme of the night or of darkness and their role in shaping culture are JACQUES RANCIÉRE, THE NIGHTS OF LABOUR: THE WORKERS’ DREAM IN NINETEENTH CENTURY FRANCE (1981); CARLO GINZBURG, NIGHT BATTLES: WITCHCRAFT AND AGRARIAN CULTS IN THE SIXTEENTH AND SEVENTEENTH CENTURIES (1985); ROBERT POGUE HARRISON, FORESTS: THE SHADOW OF CIVILIZATION (1992); BRYAN PALMER, CULTURES OF DARKNESS (2000). 60 ERIC A. HAVELOCK, THE GREEK CONCEPT OF JUSTICE 2-3 (1978). One needs only recall, for example, Euripides’ Bacchae where Dionysus, “son of Zeus, whom Semele, child of Cadmus, once delivered by the lightening-flame,” arrives to bring havoc to the city and its laws thus tragically changing the course of both. On the centrality of the heavens for the life of the ancients, see, on the side of science, KOYRÉ, supra note 1; HOLME, supra note 47, at 11–12; HEILBRON, supra note 47. 61 GIAMBATTISTA VICO, THE NEW SCIENCE OF GIAMBATTISTA VICO (Thomas Goddard Bergin & Max Harold Fisch trans., 1984). 62 HARRISON, supra note 59, at 5. 63 Id. at 6. 64 VICO, supra note 61, § 391; HARRISON, supra note 59, at 10–11. 65 HARRISON, supra note 59, at 11.



or threatens the day, its cities, and its laws, so therefore the other side of thought and of its walls, that which could suddenly and overwhelmingly be there, that which could even lead to the tragic denial of the day, in short, if you will, thought’s potentiality for meaninglessness as well as for meaning, thought’s potentiality for impotence as well as for power, thought’s ever-present possibility of being overlooked and of disappearing as well as of being, by contrast, recognized and accepted. In short, the night soon becomes the dark horizon of thought, thought’s openness to the genuinely unexpected; and if social life becomes necessarily linked to daylight, if the political and the legal must be diurnal in order to operate effectively, the night, by contrast, must be, in the words of Jean Carbonnier, a void that the law abandons or an unknown that the law fears.66 Thus for example the Twelve Tables, the earliest law we have from Roman times, were famously keen to ensure that legal actions—and even perhaps legal business generally—take place during the day (Solis occasus suprema tempestas esto).67 Nearly a thousand years later when the prohibition begins to be lessened the Justinian compilations are still somewhat uneasy on the point.68

With Christianity and through the Middle Ages, however, the night begins if not yet to be tamed, then at least to be softened.69 In his Etymologiarium written at the beginning of the seventh century Isidore of Seville had already neatly divided the cosmic night into seven periods: evening, twilight, then the first period of silence, the middle one, then the time when the cock crows, the morning, and daybreak.70 To that the Middle Ages add the legal night, defined, as Jean Verdon puts it, at first by the ringing of the evening bells and then by the resuming of the activities in the morning. When night falls “a whole ceremony unfolds. In the thick wall surrounding the city, the gates that allow an escape into the countryside or conversely an entrance for provisions are closed, making the city an enclosed space deprived for a few hours of all relation to the external world.”71 In the process of this ever more insistent streamlining or normalization of the night, the night itself as the dark horizon of thought becomes the more and more real, even darker, starless night of thought, its violence, its fantasies, its strange activities, its rest, its visions and prayers, in short, the other by 66 “La vie sociale est décidément liée au jour; le droit est diurne, et la nuit n’est plus pour lui qu’un vide qu’il abandonne, ou un inconnu qu’il redoute.” JEAN CARBONNIER, Nocturne, in DROITS DE L’ANTIQUITE ET SOCIOLOGIE JURIDIQUE—MÉLANGES HENRI LÉVY-BRUHL 34 (1959) (translation is mine). See also EMILE DURKHEIM, LE SUICIDE (1897). 67 CARBONNIER, supra note 66. 68 C. 2, 4, 20; NOV. 82, c 3; D. 1, 2, 31; D. 28, 1, 22, 6; D. 49, 4, 1, 8. See Carbonnier, supra note 66. 69 JEAN VERDON, NIGHT IN THE MIDDLE AGES 69 (2002). 70 ISIDORE OF SEVILLE, 20 ISIDORI HISPALENSIS EPISCOPI ETYMOLOGIARUM SIVE ORIGINUM LIBRI (W. M. Lindsay ed., Oxford 1911). 71 VERDON, supra note 69, at 2.



the side of thought, the evil or subterranean void out of which the day, its cities and their thoughts emerge or are created and to which they regularly return.72 Intellectual as well as material techniques were developed that attempted to regulate the night, to subject it to the order of the day. “People were attentive to anything that went on in the sky, and certain phenomena seemed all the more terrifying because they occurred at night.”73 Yet not only naturalists but theologians, philosophers, moralists, and jurists alike set out to develop adequate means of controlling, vacating, or illuminating the depths of its darkness.74 Indeed, the night becomes a veritable obsession during the Middle Ages, sometimes more of an object of scrutiny and regulation than daytime itself. Clearly mentioned right at the start of the Old Testament and even in the New Testament at that turning point in the life of the Christ when he is finally subjected to betrayal, it becomes impossible during the Middle Ages to ignore the night and its meaning and significance in the history of both creation and salvation and so, then, to avoid attendant and complicated questions of narration and visual representation. While playwrights for example never properly figure out how best to represent the night, painters by contrast discover relatively soon the convenient role of the shadow in accompanying or marking the contrast or passage between night and day. In the eye of the law, by contrast, the question of which legal business is allowed to take place during the day and which during the night continues to be answered much along the same lines indicated by the Justinian’s Digest in the widely discussed, glossed, and post-glossed More romano.75 Yet as questions of definition multiply (nox quia sit) so do, eventually, those concerned with the concrete legal regime of the night. Indeed the night soon becomes a general—and generally aggravating—qualifying circumstance (circumstantia temporis) and recourse to it so widespread that, it has been suggested, its concept rapidly turns into something quite indistinguishable from the legal rules that go to regulate it.76 Correspondently, real or imaginary dangers are replaced by legal ones as the night can now be used to subvert perfectly legitimate activities into illegitimate ones (mala praesumptio).77 Thus a nocturnal, if innocent, visit to someone’s home will now be indicative of adultery or even conspiracy, and a night spent out (pernoctatio extra domum) will

72 Id.; DAVID WILLIAMS, THE FUNCTION OF THE MONSTER IN MEDIEVAL THOUGHT AND LITERATURE (1996). 73 VERDON, supra note 69, at 102. 74 MARIO SBRICCOLI, Nox Quia Nocet: I Giuristi, L’Ordine e la Normalizzazione Dell’Immaginario, in NOTTE 9-19 (1991). 75 D. 2, 12,8; CARBONNIER, supra note 66, at 347, n 1. 76 “L’ipotesi è che la notte stia tutta nelle regole che la qualificano e nel controllo a cui viene sottoposta.” SBRICCOLI, supra note 74, at 12. 77 Id. at 13.



be treated as thoroughly irregular and attract specific consideration by the jurists.78 Throughout the Renaissance and until the whole of the seventeenth century there remains a substantial hostility toward the night that the law increasingly attempts to vacate (ne quis incedat de nocte) or, in the case of the countryside, reduce to silence.79

Yet it is upon the onset of the modern age that the night is finally transformed into a veritable object of scrutiny, namely, a distinctive space populated by ever more defined characters and things that had been so far left into the shadow. The night of thought, in other words, now becomes the thought of the night, of an open field where so far few, beside Dante in his Comoedia, had dared to go. In turn, the thought of the night allows the thought of the day—the thought of the cities and of their laws—to shine through ever more brightly. The thought of the night is by no means the exclusive preserve of diurnal inquiries or examinations. “Governed by blood and bread,” argues social historian Bryan Palmer, “the peasant night brought forth reflections on the instabilities and precariousness of lives oscillating between abundance and scarcity . . . . Blood and bread led peasants to think, and their wandering thoughts could, in the dark corners of the night, nurture an intensely materialistic, blasphemous questioning of the spiritual world as presented to them by those whose understanding of the sacred seldom confronted the ravages of hunger and want.”80

The night, the starry night sky, and the multiple subjects and activities that at an increasing speed appear to populate them, become indeed, at the start of modernity, the ever wider field of study and of blasphemous reflections alike, as Palmer argues—yet later on a new turn occurs when the night now seems to become more active than ever before in inviting those who by now had been named as peasants as well as shamans, pirates, witches, heretics, bandits, conspirators, fraternal orders, foreigners, revolutionaries, communists, libertines, lunatics, hermaphrodites, homosexuals, Egyptians and other dark-skinned colonised, night labourers, invalids, criminals, transsexuals, prostitutes, terrorists, and many more such outlaws or “monsters” to think of themselves afresh, to spell out new if increasingly discontinuous subjectivities by permitting them to stand opposed to, however precariously and temporarily, themselves, as well as to the subjects of the day, their cities and their laws.81 The night and its people as an object of study and reflections, inquiry or examination, thus become the subject of the night—the night as a discrete and so irreducible multiple

78 Id. at 13–15. 79 Id. at 16–17. 80 PALMER, supra note 59, at 29. 81 MICHEL FOUCAULT, MADNESS AND CIVILIZATION: A HISTORY OF INSANITY IN THE AGE OF REASON (1973); PALMER, supra note 59.



subject of desire and hatred alike; and just as the night now comes to life as the spectral if addictive subject of a host of potentially infinite discourses that can be everywhere initiated but nowhere any longer properly mastered, just as the night thus looses its inevitability or objectivity or darkness by turning into one possible environment that may or may not be (r)evoked, (de)constructed, or (dis)assembled, together with other more “diurnal” subjects and truths, so too the day on its part now becomes—rather than a fact, or an object, or a legal rule, like in the past—an always possible alternative abode for the subjects of the night and for their truths, it too turning into a subject that it is now best avoided or embraced rather than left in its place, particularly once modernity’s far-reaching process of industrialization has finally taken off.82 Night and day, in other words, become entirely interchangeable elements in a plurality of possible discourses, each feeding into the other one and into any related point in the space of the particular logos that will each time go to illuminate, potentially, that which each time will need to be said.

So how may this brief history of the night help clarify Badiou’s philosophical discourse and, in particular, its relation with the thought of the day and so with the thought of the legal? It may do so in so far as Badiou himself, as we have seen, characterizes his discourse as subtractive, nocturnal, as a discourse of the truth-event’s emergence from the void—emergence of that which will have just started to appear, during the day, and so precisely emergence of what should now be grasped, within the parameters of each possible situation, as no longer the continuous or potentially undifferentiated place in which language relentlessly transforms it (where night and day can no longer be clearly distinguished) but as a pure multiple, an open but densely populated space, a luminous nocturnal depth that at any time can come to life taking place into the legal and, then, taking the place of the legal. The particular space that interests me here, however, and which is evoked by Badiou’s discourse of the truth-event’s emergence from the void is not so much that of the event itself or, via being, that of its future doctrines or truths (though that is of course what interests Badiou most), but precisely the wider nocturnal space that becomes darker and darker or more and more indiscernible when a momentous event occurs and the more such event and attendant doctrines or truths find, with the help of philosophy, their place in logos, in a discourse of the night that, philosophy now suggests, could soon take over the fading thought of the day and of its laws. For is it not the case that the more philosophy sets out rigorously to articulate or configure a void, an absence, or a darkness, the more certainly that talk’s unspoken-of—the void by the 82 WOLFGANG SCHIVELBUSH, DISENCHANTED NIGHT: THE INDUSTRIALIZATION OF LIGHT IN THE NINETEENTH CENTURY (1988).



void, the absence by the absence, the darkness by the darkness, the figure by the figure—is likely to be exposed to the cruel danger of being utterly and perhaps finally blotted-out? Thus the void or dark fissure of the legal may become upon the occurrence of the event the transgressive plurality of subjects that Badiou hopes will legislate, however temporarily, on the situation—but its negation, mark, step, or transgression, will be of necessity two-fold (a stepping forward into transgression and, at the same time, a stepping away from the void) and so be likely to amount to a ultimately positive and potentially self-defeating gesture of affirmation. To go back to Badiou’s language, then, it is only the double-move configured by the subtractive gesture of philosophy that can tear up, as Badiou hopes, the sutured world and beings of the day thus releasing them, once again, into the sidereal void of night.83 And yet it is precisely that double-move that, potentially, could both reveal and dissolve the thought of the day (the thought of the One, the thought of the legal), and the infinitely multiple thought of the night, thought of the pure multiple, thought of what may never be, therefore, other than both literally and figuratively, ultimately and inescapably legal.

It is thus, then, that the thought of the night or Badiou’s Platonism of the pure multiple may be seen as keeping us forever open to the thought of the day. Yet, Badiou argues, the closing of the day, the twilight of its subjects and of their truths, the twilight of thought, philosophy, or jurisprudence even, need not be taken to be infinite, never ending, or infinitely returning, as perhaps surprisingly and yet absolutely necessarily the thought of the night as that which stands opposed to the thought of the day could be taken to entail. Instead, Badiou maintains, it is simply a question of “taking one more step.”84 Thought, that is, must never stand still, it must always be on the move, it must always be ready to re-move to yet uncharted territories—and that would be the law of law, the subtractive truth of language, the properly restless heartland or justice of the legal. Night and day, thought and language, the true and the legal cannot be conflated or reduced to one another for thought avoids language, it quite literally a-voids it or resets it. Therefore the thought of the night, for Badiou, must be, I suggest, something rather more like Plato’s chora, an exceptional space (a space that becomes an exception) or original time (not yet time but the incipit of the time to come), a timely spacing or reckoning, separation, and decision, one conjuring up some sort of ironic image, myth, or comparison that follows on, subtracts itself to, leaves behind or 83 I paraphrase here Badiou’s words when, referring to the event, he says that “it must be subtracted from Life in order to be released to the stars.” Badiou, The Event in Deleuze, supra note 28, at 42. 84 BADIOU, MANIFESTO, supra note 11, at 32.



at one’s side, the apparent order of the day.85 The thought of the night, that is, must be, for Badiou, a turning away of one’s gaze for it to look back again, a drawing of an axiomatic limit for it to overwrite or reconfigure an outstanding limit, a taking stock of an unprecedented event for it, eventually, to disregard it. In short, the thought of the night must be a veritable if entirely fleeting out-thinking of the legal. That might be precisely how “being and truth cannot be said in one and the same discourse.”86 And that might be how, moreover, philosophy can suspend and reverse the truths of the day as well as seizing them, grasping and comparing them:

Philosophy proceeds universally to construct its organic category—Truth—in two different and intricate ways. It relies on paradigms of sequential linking, argumentative style, definitions, refutations, proofs and conclusive strength. Let us say that, in this case, it constructs the void of the category of Truth as the reverse-side or inversion of a regulated succession . . . Or else philosophy proceeds by metaphors, strength of the image and persuasive rhetoric. This time it is a manner of indicating the void of the category of Truth as a limit-point. Truth interrupts the succession, and is recapitulated over and above itself. With Plato, it is the images, myths and comparisons whose workings are the same as those of the poets he combated.87 So that and no other is, for Badiou, the force of the night, the force

of the thought of the night, the force that the thought of the night becomes: it is the fugitive becoming of a plurality of subjects that could out-think the legal. The force of a nocturnal thought and so ultimately the force of transgression, the force that could out-think the legal is, for Badiou, no longer corporeal—no longer a physical locale—nor an object of worship or of study, but an entirely incorporeal, immaterial, mathematical, even stellar subtraction from the legal.88 It is the separate, singular force of stars and numbers, the exploded but distinctive force of the pure multiple, in short, subtraction itself—all the more powerfully so the better one is able to grasp and to accept how mathematical existence is and is not, after all, physical existence. Subtraction as the vacant object of philosophy-as-thought thus becomes the true subject of philosophy, of thought itself, the nocturnal and enigmatic force of philosophy and of its relation to the truths of the day, that is, to the new as well as to the legal.

85 Badiou, (Re)turn of Philosophy, supra note 12, at 125. It is a “taking” of sides: Hallward, Beyond Formalisation, supra note 27, at 112. 86 Hallward, Beyond Formalisation, supra note 27, at 113. 87 Badiou, (Re)turn of Philosophy, supra note 12, at 124–25. 88 On a particular turn of the stellar origin of the legal (in a broad sense), see Ray Brassier, Stellar Void or Cosmic Animal? Badiou and Deleuze on the Dice-Throw, 10 PLI 200 (2000).



VI. SUBTRACTION

Badiou’s thought, philosophy, or jurisprudence, seems nocturnal

not so much because it must happen at night and so because the night must be its eternity or temple89 but because, on assigning the event, its subjects and doctrines their place, Badiou’s thought assigns itself its own logical locus, its locus in logos, a new site at the outer edge of the day, at the inner edge of the night, which now exists, eksists, as a veritable out-thinking vis-à-vis the new and the old language of the day. So in Badiou, night and day, thought and language, truth and the legal (old and new) sit by one another courteously, sarcastically, or indifferently, without belonging together. They are on different sides, at different ends of the sky. Yet they are somewhat connected. Thought-as-philosophy, for Badiou, is subtractive, it a-voids thought-as-language, it out-thinks it and, on the other hand, the night is no longer a question of time or of space but of a timely spacing, a temporary incantation, a fleeting suspension in numbers or letters, a figure conjured up next to a nocturnal campfire and then unhurriedly traced over the soft, cool sand of the night.

For Badiou, this much is clear, philosophy’s place could never be mere tabulation, formal vision, or even skilful computation. What is at stake here, Badiou explains, is neither a form, nor an episteme, nor a method—but a “singular science.”90 General qua science, philosophy or jurisprudence must be singular qua thoughtful, sprightly weaving. And it is thus that, paradoxically perhaps but no less tightly for that, the matheme rather than the philosopheme is linked to being as a void being. Or, mathematics pronounces being from no-thing and with-out any-thing as its proper object. “Strictly speaking, mathematics presents nothing” while still pronouncing “what is expressible of being qua being.”91 Thus ontology is a situation without structure. That is not to say that being qua being is unpresentable but, rather, that it is subtractive. It is “in being foreclosed from presentation that being as such is constrained to be sayable . . . within the imperative effect of a

89 Again, there is in my view nothing physical or metaphysical or even mystical in Badiou’s “night,” nocturnal thought or nocturnal jurisprudence—see supra Part IV. 90 BADIOU, BEING AND EVENT, supra note 16, at 6. Still there seems to be some broad if opposite resonance in my view between Badiou’s philosophy and the interpretive turn in the social sciences determined “to inspire practitioners and students of social inquiry to violate the positivist taboo against joining evaluative concerns with descriptions of fact.” PAUL RABINOW & WILLIAM M. SULLIVAN, INTERPRETIVE SOCIAL SCIENCE 1 (1987). While the interpretive turn in the social science suggests moving from the positive to the evaluative, Badiou’s thought suggests by contrast moving from the merely evaluative to the more “scientific.” 91 BADIOU, BEING AND EVENT, supra note 16, at 8.



law . . . the law of demonstrative and formalizable inference.”92 Thus being is (one could say) squeezed out of its void by a mathematics-as-ontology operating as presentation of presentation, as a science of the pure multiple, or multiple qua multiple, or “multiple in-itself,” whereby “[w]hat is required is that the operational structure of ontology discern the multiple without having to make a one out of it, and therefore without possessing a definition of the multiple.”93 Such is what Badiou calls an “axiomatic presentation” transforming inconsistency into consistency while avoiding composition according to the one as well as being, therefore, absolutely specific.94 Neither a tautology nor a mystery, ontology is then “a rich, complex, unfinishable science, submitted to the difficult constraint of a fidelity.”95 Correspondently being, not itself an endowment or a gift, not a representation or a presentation, is that which “does not in any manner let itself be approached, but solely allows itself to be sutured in its void to the brutality of a deductive consistency without aura.”96 Being therefore appears to be just the way the starry sky of the night may be characterised to be, that is, borrowing Badiou’s language, “the null sovereign of inference.”97 And just like the nightly reckoning of the stars, sovereignty and its rules, subjects and their truths, are the forcing, generic indifference of the void.98

In his 1991 paper presented at the École de la Cause freudienne and entitled On Subtraction Badiou clarifies much of what we have been touching upon so far.99 Moving from a fragment taken from Mallarmé’s Igitur, in which the poet speaks of the relation between speech, language (“your amalgam”), and the void, Badiou represents subtraction as the act of truth that alone permits knowledge of the void of being as such. But it is not easy to subtract, to draw under (sub-trahere). And subtraction consists of four irreducible operations, not just one. These, Badiou argues, are the “[f]our figures delineating the cross of being when it surges forth in the trajectory as well as in the obstacle of a truth.”100 Such truth is seldom said or only just uttered, “traversed as it is by the incommensurable unbinding between its own

92 Id. at 27. 93 Id. at 29. 94 Id. at 29-30. 95 Id. at 8. 96 Id. at 10. 97 Id. 98 Rules are truths: “Truth is what unfolds as a system of consequences, secured by an unheard-of figure of the subject as a consequence of the rupture of the event.” Bosteels, supra note 33, at 352. 99 After appearing first in French and in Italian, the paper is now available in English. ALAIN BADIOU, On Subtraction, in THEORETICAL WRITINGS 105–20 (Ray Brassier & Alberto Toscano trans., 2006). Quotations in what follows are taken from the English translation. 100 Id. at 106.



infinity and the finitude of the knowledge it pierces.”101 Badiou offers logical and mathematical evidence for the existence

of each of his four figures of subtraction—the undecidable, the indiscernible, the generic, and the unnameable. Briefly put the undecidable points to a subtraction from the Law,102 the indiscernible to a subtraction from difference,103 the generic to a subtraction from the concept,104 and the unnameable to a subtraction from the proper name.105 “These,” Badiou explains, “are the analytical figures of being 101 Id. 102 Take a norm that distinguishes between the veridical and the erroneous in a given language, or even the provable and the falsifiable. In that situation, the undecidable statement is the unclassifiable, that which escapes the norm. It is the “strictly valueless.” Id. It is a star suddenly and unexpectedly appearing into a universe thought to be immutable, forever the same. At least for Gödel, the undecidable exists and it is a statement whereby neither the statement itself nor its negation can be proved. Such a statement would be not so much the one taking the form of the liar paradox as the “reasonably natural theorem of a finite combinatorial” referred to by Jeff Paris and Leo Harrington. It is, in short, an intrinsic operation. Id. at 106–107. 103 Take a language situation whereby the same norm is accompanied by an expression like, for example, “x is bigger than y,” placing for any two agreed terms (a 1 and a 2). Such an expression will discern the two terms whenever the value of one statement differs from the next. Correspondently, the two terms will be indiscernible whenever in that situation there is no expression to discern them. Thus, Badiou explains, two terms are indiscernible if they are two in number but in no other respect, so much so that “you permute them in vain.” Id. at 107. They are indiscernible if it is possible to subtract their difference from all re-marking, if it is possible not to re-mark them. Here too, mathematics can show us the indiscernible through the calculus invented by Galois. Id. 104 Consider the usual norm and a fixed set of terms or objects for that language situation—a universe (U). If we take one of those terms or objects and place it in a single place expression (for example, F(x)), our norm will tell us whether that term or object in question is true or false (or whatever else) in that situation. But let us now turn to a slightly more complicated example whereby the expression allowed for by the language situation is “x is bigger than a 2” and let us take all the objects or terms in U which are bigger than a 2. “We will say that this subset is constructed in the universe U through the expression ‘x is bigger than a 2.’” Id. at 109. Subsets however can be either constructible or not constructible, that is to say, generic. A generic subset is one “subtracted from every identification effected by means of a predicate of the language” while, at the same time, containing “a little bit of everything, so that no predicate ever collects together all its terms.” Id. Or, “[t]he generic subset is a pure multiple of the universe, one that is evasive and cannot be grasped through any variety of linguistic construction.” Id. Generic subsets are necessarily infinite. Which is why “[t]he generic is ultimately the superabundance of being such as it is withdrawn from the grasp of language, once an excess of determinations engenders an effect of indeterminacy.” Id. at 110. Once again, mathematics has been able to furnish evidence of the generic through the work of Paul Cohen confirming how “the generic is the infinite subtraction from the subsumption of the multiple beneath the One of the concept.” Id. 105 Consider again a norm of evaluation in a given language situation. Take again a single place expression such as F(x) and one admissible value like the true, the false etc. Badiou calls that value “nominating value” and proceeds to show how “an expression F(x) names a term a 1 belonging to that universe if that term is the only one which, when substituted for x, gives to the statement F(a 1) the nominating value.” Id. Thus an expression names a term when it provides a schema for its proper name while, on the other hand, a term is unnameable when being the only one in that universe not being named or, more precisely, when being “that which subtracts itself from the proper name and is alone in doing so.” Id. at 111. Thus the unnameable is “the proper of the proper.” Id. There is here a risk of slipping from the unnameable to anonymity (itself a name) so that, Badiou argues, one form of uniqueness would be “the ruin of the other.” Id. But not all is lost as Badiou shows in a few more steps and mathematician Furkhen proved in 1968



through which the latter is invoked whenever language loses its grip.”106

The linkage between the figures is set out in Badiou’s “gamma

diagram” (above) where those figures are distributed along the stellar register of pure multiplicity in such a way as to show the “latent being of those acts.”107 In that diagram, the undecidable and the unnameable are displayed on the side of the One: they both presuppose the One as respectively, a single statement thereby falling outside the One and, in the case of the unnameable, as what evades the proper name, thereby falling inside the One. Yet the undecidable “supplements the language situation governed by the norm”108 while the unnameable, by contrast, “is embedded in the intimate depths of presentation” and “bears witness to the flesh of singularity and thus provides the point-like ground for the entire order in which terms are presented.”109 The indiscernible and the generic, by contrast, are displayed in the diagram on the side of the multiple. The indiscernible lie on the side of the multiple for it applies to at least two terms, “since it is a difference without a concept.”110 The generic, on the other hand, lie on the side of the multiple for it requires “an infinite dissemination of the terms in the universe.”111 But the multiple of the indiscernible is finite, whereas the multiple of the generic is infinite. And so finally,

a truth circulates within this exhaustive quadripartite structure, which when arguing in favour of the existence of the unnameable without contradiction. Id. at 112. 106 Id. 107 Id. at 113. 108 Id. at 144. 109 Id. 110 Id. 111 Id.



accounts for the ways in which being is given. Similarly the trajectory of a truth is traced by the complete logic of subtraction.112 So a truth circulates like a story told by a campfire or a figure

drawn onto the sand while glancing away into the depths of the night and of the night sky. A new, momentous event will have occurred during the day. It calls for a statement, a decision, a course of action, but that statement or decision or course of action is difficult to formulate as nothing in the situation can help in deciphering or expressing the event in any way.113 So how to proceed in the face of the undecidable? The only way is to somehow make a decision, construct it, lay down an axiomatic foundation for future action. Axioms on their part have no basis, which is why, Badiou argues, “every truth passes through the pure wager on what has being only in disappearing.”114 But once a decision is made regarding a truth-event that happened during the day although it has now all too quickly disappeared, that truth-event will have to be duly verified, and it will consist of a non-legal, quite literally, il-legal, nocturnal examination within the situation of the consequences of what will be now the action regulating axiom. That is of course a “hazardous trajectory, one without a concept.”115 It is, in other words, pure choice, one faced with two indiscernible terms. At play here is the future subject’s “freedom of indifference,” whereby “it is your freedom as such which provides the norm, to the point where it effectively becomes indistinguishable from chance.”116 Choice will retroactively set out the norm, thus verifying it or turning it into a truth.

But what about the subject? “A subject is that which disappears between two indiscernibles, or that which is eclipsed through the subtraction of a difference without a concept . . . that throw of the dice which does not abolish chance but effectuates it as verification of the axiom that grounds it . . . the indifferent lover.”117 Its act is finite yet “the verifying trajectory,” its story, goes on. “Little by little what takes shape behind these acts begins to delineate the contour of a subset of the situation—or of the universe wherein the evental axiom verifies its effects.”118 Unlikely to be normally completed, if completed, the subset would have been a generic one, without unifying or totalizing predicates. “Indiscernible is its act or as subject, a truth is generic in its

112 Id. 113 “Were such a statement to be decidable, then clearly the event would already be subject to the norms of repetition, and consequently would not be evental. Every statement implying the naming of the event harbours an intrinsic undecidability.” Id. at 115. 114 Id. 115 Id. 116 Id. at 106. 117 Id. 118 Id.



result or being.”119 Accordingly, Badiou continues, a truth is “scarcely-said,” firstly,

because infinite and so pronounceable only in the future perfect and, secondly, because as a generic subset “it does not let itself be summarised by any predicate, it is not constructed by any expression.”120 Indeed, Badiou admits, “this is the nub of the matter: there is no expression for truth.”121 However that is not to say that a truth cannot be anticipated as such. All to the contrary, its taking place can be perfectly well hypothesized, at least in theory. For the unnameable prevents such a hypothesis from ever taking fully its name.

The anticipating hypothesis as to the generic being of a truth is obviously a forcing of the scarcely-said. This forcing enacts the fiction of an all-saying from the vantage of an infinite and generic truth.122 Attempting to name the generic is what Badiou calls evil—for the

result will inevitably be to deny all singularity. Evil is forcing the generic out of the night into the day. “The imperialism of a truth—its worst desire—consists in invoking generic subtraction in order to force the subtraction of the unnameable, so that it may vanish in the light of naming.”123 Thus evil is the “denial of a subtraction,” not the denial of a presence or of a statement.124 Neither is evil really mendacity but, rather surprisingly, an insisting on telling the truth. “There is evil only in so far as there is an axiom of truth at the point of the undecidable, a trajectory of truth at the point of the indiscernible, an anticipation of the being of truth at the point of the generic, and the forcing in truth of a naming at the point of the unnameable.”125 Thus a truth must be dealt with maximum care, in order above all to preserve singularity. Which is why “there is only one maxim in the ethics of a truth: do not subtract the last subtraction.”126 In the end, it is essential that there be no name. “[T]he heart of what is, the ‘southland’ (midi) of our unconsciousness of being, does not and must not have a name.”127 Or, the essence should not be named. “The sky and the map testify that this land did not exist. But it does exist, and this is what wears thin the authoritarian truth, for which only what has been named through the power of the generic exists.”128

119 Id. at 117. 120 Id. 121 Id. 122 Id. at 118. 123 Id. 124 Id. 125 Id. at 119. 126 Id. 127 Id. at 120. 128 Id.



VII. UNNAMING

Some may suspect the nocturnal order or enigmatic Justice

imagined by Eudoxus and put into verse by Aratus to be like that of the invisible or mystical city that would one day shape the cities and the laws of the West. But how would that city, its order or justice, be? Which would its name be? What would it show and what might it hide?

In Italo Calvino’s Invisible Cities Marco Polo tells Kublai Khan how during his travels he happened on the strange city of Eudoxia.129 “In Eudoxia, which spreads both upwards and down, with winding alleys, steps, dead ends, hovels, a carpet is preserved in which you can observe the city’s true form.”130 At first the carpet and its geometrical and mathematical symmetries appear to have nothing to do with Eudoxia but on closer look “you become convinced that each place in the carpet corresponds to a place in the city and all the things contained in the city are included in the design, arranged according to their true relationship, which escapes your eye distracted by the bustle, the throngs, the shoving.”131 The carpet, that is, “proves that there is a point from which the city shows its true proportions, the geometrical scheme implicit in its every, tiniest detail.”132 One gets easily lost in Eudoxia but when that happens the good inhabitant of that city has only to compare “the carpet’s immobile order with his own image of the city, an anguish of his own [to] find, concealed among the arabesques, an answer, the story of his life, the twists of fate.”133 Asked about the strange relation between such different things as the city and the carpet, an oracle—Polo continues—replies that the carpet “has the form the gods gave the starry sky and the orbits in which the worlds revolve,”134 while the city “is an approximate reflection, like every human creation.”135 The response of course is far from unexpected, it raises no eyebrow. Surely, the questioners reckon, “the carpet’s harmonious pattern was of divine origin.”136 And yet, Polo explains, one could just as well reach the opposite conclusion:

that the true map of the universe is the city of Eudoxia, just as it is, a stain that spreads out shapelessly, with crooked streets, houses that crumble one upon the other amid clouds of dust, fires, screams in the

129 ITALO CALVINO, INVISIBLE CITIES (1972). 130 Id. at 96. 131 Id. 132 Id. 133 Id. at 96-97. 134 Id. at 97. 135 Id. 136 Id.



darkness.137 If the true map of the universe is the city of Eudoxia, ‘just as it is’,

a mix of bodies and a Babel of languages, some might wonder whether the choice of the Hegelian image of the owl of Minerva taking off when night falls might not be symptomatic of a deeper anxiety that, in spite of his unequivocal claim that “the Age of the Poets is completed,”138 Badiou might be feeling vis-à-vis today’s predicament in Western societies and, I would suggest, vis-à-vis today’s frantic, ever increasing counting of events in human affairs. And indeed, are there not so many key events “out there” for any one of them to come across as little more than, precisely, a number, a cipher, a label, a brand, or a conference legend? We can speak, rather problematically in my view, of the recent loss of thousand lives in New York City as “9/11,” of the ghastly blowing-up in London of other lives as “7/7,” of the impalpable yet massive expansion of human power over the environment as the “I.T. revolution,” of the rapid and perilous reconfiguration of human life as the “decoding of the DNA,” of major disasters and their devastating consequences as “the Tsunami” or “Katrina,” and of entire populations supposed way of life as a “brand” to be protected, advertised, and sold. If one agrees that such is today the enigmatic backdrop of so many of our lives, Badiou’s philosophy might be justifiably seen to be but an instance of a generalised feeling of displacement determined by ubiquitous and ever-multiplying multiple-event situations, where multiple events are counted as one in order to be presented as multiple.139 That sort of situation, moreover, could be easily argued to be especially true of the domain of the legal where a recently intensified and now seemingly unstoppable juridification of world and beings—as exemplified by contemporary preoccupations with such matters as global rights, biotechnology, securitization, and the legal infosphere—seems to have led to an increasing, paradoxical exposure to a vacant rule. So, then, an obscure, “metaphysical” preoccupation might be thought to underlie Badiou’s thought, philosophy, or jurisprudence—Badiou’s thought of the night—and that preoccupation might be due to the nagging question: is there any space left for the unexpected? Or, which is the same, how many unexpected or exceptional events call on us today to act as their loyal subjects? And so, what might be left in a name, in the naming of the unexpected by its subject?

That, I would argue, might be seen to amount to something like Badiou’s anxious thought of the night, Badiou’s anxious fear that the twilight of thought might be set to turn—if it has not done that yet—into 137 Id. 138 BADIOU, MANIFESTO, supra note 11, at 74. 139 For an early warning about what was to come see, for example, DANIEL J. BOORSTIN, THE IMAGE: A GUIDE TO PSEUDO-EVENTS IN AMERICA (1961).



a continuous or “globalized” empty place, where creativity or innovation and so genuine change might be irrevocably disappearing. But then, if it must be admitted that Badiou’s thought, philosophy, or jurisprudence, might itself amount to somewhat of a displaced event, would that event not be beset, for all its potential might, by its own unresolved will or desire to secure a place in the sun?

That is why, it seems to me, Badiou’s nocturnal course of action, philosophy, or jurisprudence, must be taken to be of an alternative, neither physical nor metaphysical nor even mystical nature, suggesting nothing less and nothing more than a resolute subtraction from the Law, from difference, from concept, and finally from the proper name. Thought, not language, is Badiou’s prescription in the age of the Sophists. And anxiety, on its part, cannot be a philosophical emotion. Instead, courage and confidence shall be the proper handmaidens of truth.140 Moreover, thought must swiftly move “when night falls.” Such is each time the delicate yet rigorous operation whose task—the task of thought, the task of an imaginative jurisprudence in the chilling, strangely paralyzing age of language—will have been truth itself, the truth of the multiple, the truth, finally, of the scientific, of the political, of the poetic, and of the amorous.

So far, so good. But then, one might insist, wherein precisely would the strength of that nocturnal truth, the strength of that out-thinking of the legal, lie other than in a distant self, a distant or autonomous or self-reflexive or even autopoietic in-itself which as such can be neither properly reached nor ever in fact actually shown? That is a serious matter for, as Palmer warns:

[f]or transgression—as either a moment of alternative or withdrawal—to result in social transformation . . . the dialogues and detours of its making, often forged in the possibilities of the night, had to undergo the difficult translation into languages that could restructure the day. This rarely happened.141 Badiou’s events, too, are rare, as rare are those who like Paul of

Tarsus will militate and continue to militate in their favour, against all odds.142 Which may be perhaps why, Badiou notes in Metapolitics, “even by drawing on a history, albeit without continuity or concept, of what ‘justice’ was once able to designate, we still have no clear idea of what this word means today.”143 So on closer look Badiou’s nocturnal 140 I am grateful to Ray Brassier for reminding me of this crucial point. 141 PALMER, supra note 59, at 19. 142 Other others are staged by Badiou beside Paul of Tarsus. BADIOU, METAPOLITICS, supra note 24 at 12, 23, 124. See also SLAVOJ ŽIŽEK, ROBESPIERRE: VIRTUE AND TERROR (2007). For Badiou, rare are in general those instances of politics that have had or will have had a relation to truth, although they do “constitute the only conditions under which philosophy is able to think.” BADIOU, METAPOLITICS, supra note 24, at 97. 143 BADIOU, METAPOLITICS, supra note 24, at 102. “Granted, we seem to have an abstract



jurisprudence may be a welcome and a refreshing but perhaps an ultimately insufficient strategy. And if that is the case, then might not be precisely that multifold instability the deeper predicament marked by Justice’s nocturnal appearance to human being, as Aratus poetically put it?144 As the nightly sky sets in, new possibilities may indeed need to be out-thought carefully, rigorously through for numbers can be as impossibly attractive and sovereign to Badiou’s philosopher (“Simple sums,” Beckett noted in Heard in the Dark II, “you find a help in times of trouble. A haven . . . Even still in the timeless dark you find figures a comfort”145) as, by contrast, they may feel utterly distant and indifferent phenomena to others. Such possibilities, in particular, will be resulting from the generic truths occasioned by unexpected, fugitive events taking place at the edge of the day, between the out-thinking of the night and the “in-thought” or language of the day before.146 But while those unexpected events both attractively and majestically (for some) orient the new truths which then expand out of the evental site into the day, philosophy’s out-thinking, the thought of the night, must be able, as we have seen, to suspend and to reverse the day and its old truths as well as to expose, at the same time, the new truths in such a way that they may now stand out and be waived together in their mathematical compossibility.147 And in their many possible, infinite configurations, a number of untried possibilities for philosophy no doubt will always be found. For it is precisely thus that, in set theory terms, “the question of how many infinite sets exists becomes the question of whether infinite sets can be made to correspond with one another and, therefore, be counted.”148

Yet once again, how might a pure out-thinking of the legal be sufficient to do the job? Thus evoking the night, the starry sky of the night, or the thought of the night as that which engages the thought of the day by out-thinking it may help us noticing a key moment in Badiou’s thought of the legal regarding the powerful but, it seems to me, all too material, all too human force of the night, its starry sky, and idea of what it means, since “justice” always signifies the philosophical seizure of a latent axiom of equality. But this abstraction is useless. For the imperative of philosophy is to seize the event of truths.” Id. 144 For example, might it not be that Justice, as Walter Benjamin and Jacques Derrida forcefully put it, can only be promised? See WALTER BENJAMIN, SELECTED WRITINGS, VOLUME 1: 1913-1926 (1996); WALTER BENJAMIN, ILLUMINATIONS (1999); Jacques Derrida, Force of Law: The "Mystical Foundation of Authority", 11 CARDOZO L. REV. 919 (1990). For an early but still powerful statement on the possibilities of Derrida’s deconstruction for law, see DECONSTRUCTION AND THE POSSIBILITY OF JUSTICE (David Gray Carlson et al. eds., 1992). 145 SAMUEL BECKETT, THE COMPLETE SHORT PROSE 250-51 (1995). 146 “[E]vents are located at the edge of whatever qualifies as ‘void’ or indistinguishable in the situation.” Hallward, supra note 27, at 112. 147 BADIOU, MANIFESTO, supra note 11, at 33. 148 That is, for Badiou, Cantor’s true revolution in mathematics. BARKER, supra note 25, at 10.



its nocturnal thoughts. For what can philosophy’s configuration of the truths of the age be if not a compelling description, a forceful story-telling but also, and just as crucially, a contrasting by truth itself, by truth in-itself, of the truths of the day? Would the story not have to be a somewhat more material engaging with the legal, an opposing of oneself to the legislative power of the already there? “Wherefrom the air,” Lucretius asked, “feeds the stars?”149 And yet, if that is the case, how might a truth in-itself be able, alone, to surge forth successfully, as perhaps it sometimes but nevertheless all too rarely will have done? How might the enigmatic depths of the night, however bright or obvious, be pronounced or nominated to exist (if not actually named) in what is otherwise acknowledged to be the all-embracing Universe of language? And so too, how might the legal and its truths be shown to their subjects to be capable of radical change? Here at stake might be, in my view, not so much the opposite and reciprocally sustaining force of night and day, thought and language, true and legal, but rather the inner tension opposing within truth itself, truth-in-itself, truth as withdrawal to truth as projection and ultimately gift. Truth, in my view, is a withdrawal as well as a projection or gift. Wherefrom will the force of that withdrawal come? Or, truth must bring with it, somewhat problematically, a shift of focus or balance between old and new, between the accepted wisdom of the legal and even the power of the exception, and the barely perceptible promise of the new. It may well be that, as Badiou says, philosophy is immanent and so no gap should be permitted to be found anywhere in a configuration of a truth. Still, there will have been a gap, in my view, there will have been a space of subtraction that, however punctiform or instantaneous, will have been both a withdrawal and a projection. It seems to me, then, that in Badiou’s own terms the thought of the day can only be exposed to be subject to change, subject to the unexpected, on the premise that philosophy, the thought of the night, can operate effectively as a veritable out-thinking, that is to say, as a night story or nocturnal jurisprudence that, however, must be able not only to figure out and to compare (quite literally, to nominate or to project) but also, and at the same time, to suspend and to reverse, that is to say, to switch off and to forget (to withdraw). For on closer look, is it not the unnaming of the legal (a projecting-withdrawing) as well as nomination by the subject (a withdrawing-projecting) what allows the void to come, if at all, finally and thoroughly forth?

The philosopher for Badiou must be able to subtract. Another way of putting it, I suggest, is that philosophy must be capable of a true poetics of comparison, it must be capable of grasping the new

149 “Unde aether sidera pascit?” LUCRETIUS, supra note 4.



generically by telling new from old, telling the new event, its subjects, and their truths, from the legal—without however naming them. For the question implied in philosophy’s job of seizing the truths of the age must simply be: what is new today? But like philosophy a poetics of comparison must also ask, additionally, how can one bring the new out, expose it, subtract it, or unname it, from the language of the day? And so then: how to do justice to the unexpected? Surely those must be the key, albeit, as I have argued, difficult, questions of a meditative thinking, the heartland of a true philosophical enquiry, the heartland of a serious and committed jurisprudence or engagement with the legal.150

Badiou’s philosophy or jurisprudence may be best thematised as nocturnal as it must be able to think, like Badiou argues, if it wants to be heard at the edge of the void, at the edge of the diurnal—but, then, it would be by inhabiting rather than by ignoring such being at the edge and its potential for not-being that, it seems to me, Badiou’s event could appear, however briefly, to be a new, possible geometry of the nightly sky, a nocturnal reckoning of the stars, a possible if all too provisional direction of the day to come, a possible if just as provisional jurisprudence of the day. It would only be by renouncing any explicit or implicit claim to meaning or to science that philosophy or jurisprudence could meaningfully again nominate the event as the beginning of the end, quite literally, the beginning that each event as an end can be (the change it can bring with it) while being, at the same time, an end. Numbers and figures, like the stars, are what they are because we can read them and give them meaning or validity, or chose instead not to read them and do without.151 Numbers and figures, like the stars, are neither right nor wrong, neither legal nor il-legal, and so potentially they can be both. Or Justice, Peter Goodrich argues, may be blindfold but that blindfold may be a mark of modesty or, somewhat more problematically or more nocturnally or enigmatically, a form of mutilation, a marking of the body representing “the impossible transition from ideal to real or, in Lacanian terms, from the imaginary to the unrepresentable.”152 And so then, it might only be thus, by

150 Igor Stramignoni, The King’s One Too Many Eyes: Language, Thought, and Comparative Law, 2002 UTAH L. REV. 739 (2002); Igor Stramignoni, Meditating Comparisons, or the Question of Comparative Law, 4 SAN DIEGO INT’L L. J. 57 (2003); Igor Stramignoni, Le Fond de la Comparaison: Nietzsche, Heidegger, Derrida, in COMPARER LES DROITS, RÉSOLUMENT (Pierre Legrand ed., forthcoming 2008). 151 See MICHEL SERRES, GENESIS 43 (1995):

When a sign loses its meaning, when it loses all possible meanings, then it becomes pure sign, naked sign, abstract sign, it enters deeper still into calculation, into mathematics, into money, the god is more god than the god himself. The thing becomes a number, the number becomes a letter, the letter is itself a symbol, the information, the software un-differentiates itself, as if it were slowly entering its own faculty, its own nakedness.

152 PETER GOODRICH, Justice and the Trauma of Law, in 18 STUDIES IN LAW, POLITICS, AND



inhabiting the edge of being and of its potential for not-being, that Badiou’s philosophy and attendant jurisprudence might be able to operate on the flip-side of technology as a space capable of providing, however immanently and provisionally, an imaginative and so real, not imaginary, strategy to traverse the empty power of the legal rule—that is modern law’s foundational aporia: it is powerful and yet it is empty—by remaining faithful to the event.

SOCIETY 271-79, 276 (Patricia Ewick & Austin Sarat eds., 1998).

Badiou's Nocturnal Jurisprudence

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