evening redness

This is a paper I wrote for a special issue of a journal. It was deemed inappropriate for the issue’s theme. I thought that I might resurrect it, but it seems rather dated at this point–at least in certain of its references; I stand by the overall argument. It’s also a bit strange, at least to me (and no less now than when I wrote it). No doubt it will come back in a somewhat different form in Material Science Fictions, but here it is for now.

Cormac McCarthy’s Blood Meridian, or the Evening Redness in the West can be read as an investigation of the problematic establishment of US jurisprudence upon no other authority but its own. As such, the novel recognizes both the Enlightenment-driven necessity of removing nature and religion as a nominal source of foundation for the state and the potential consequences of this removal. If power was to begin and end with the citizens of the nation, then there could be no appeal to any abstractions in the constitution (the process, not the document) of that nation. However, the self-grounding of power claimed in Article VI of the US Constitution (the document, not the process) exposes the truth that power and authority have never had any foundation in abstract ideas. Thus McCarthy’s great character Judge Holden can claim that “Moral law is an invention of mankind for the disenfranchisement of the powerful in favor of the weak. Historical law subverts it at every turn. A moral view can never be proven right or wrong by any ultimate test. A man falling dead in a duel is not thought thereby to be proven in error as to his views” (250). Otherwise put, all of the rationality, all of the morality, all of the human-constructed words that stand behind and comprise the Constitution (both the process and the document) of the United States, matter not at all in the face of material force. In the society of the early twenty-first century, this fact has taken on new importance as our interactions with our environments—our acts of “doing”—are increasingly prescribed by the material force of code.

“To do” is, obviously, predicated on an ability “to do.” As implied above, such ability should not be understood strictly as a function of the user using it. Any consideration of “to do” must include an analysis of the effects of environment, broadly understood, on the user’s ability to use her ability. Regardless of will, there are some things that will always remain outside of anyone’s ability to do, outside of what natural law allows, not because of a lack of pure ability on the part of the user, but because of the inhospitable affordances inherent to the interaction of user and used. For example, even the best runners in the world cannot exert their abilities to do to the same extent when they run on sand as they can when they run on a level, all-weather track. Sand does not afford speed in the same manner that the track does. Only when runner and surface meet (to simplify a complex interaction for the sake of explanation) does “running,” fast or slow, obtain. Similarly, no artist, however great, can create art in the absence of a suitable medium or stylus.

These examples of the function of natural law demonstrate that any ability to do involves a relationship between bodies, between individuals, between things. Moreover, they demonstrate the limits of human power in certain environments or contexts. As the opening scene of 2001: A Space Odyssey reminds us, such limitations are a fundamental fact of existence and overcoming them always involves a process of discovering new ways of interacting with things. The ape’s use of the bone as a weapon constitutes an evolution in the interaction of individual and thing and is, mythically speaking, the first human/machine interface. Furthermore, this use afforded its user greater power and subsequently engendered new relationships between him and his peers as well as between those peers and their environments. Whether we understand the advent of the human/machine interface to be a benefit or a curse for humankind, we cannot deny its continuing effects on the structure of human existence. Moreover, we cannot deny that the material interactions it enacts and affords (or constrains) have greater consequences for future actions than any rule subsequently constructed to regulate them. Historically, the very existence of such rules implies the primacy of that which they rule.

In the context of computer and network technology, the code or architecture of a system—the constructed qualities of the system that have material effects—will determine, in part, a user’s ability to do with the system. Despite what movies such as Hackers might tell us, the power of the user is limited in the face of an environment whose affordances do not include being hacked. In Code and Other Laws of Cyberspace, Lawrence Lessig refers to the code or architecture of computer systems as a form of law; however, as Lessig well knows, this form of law is not simply law in the sense of juridical law, which only suggests behavior in one sense and guides enforcement in another. Architecture—the way that the world is constructed in the physical sense—regulates bodies by force.

This point brings us back to the tenuous relationship between natural and juridical law the US Constitution eschews. Prior to the establishment of this constitution, Western government was often if not always based upon a relationship of natural to statutory law. Divine right is one of many attempts to ground the laws of the state in abstractions that have nothing to do with nature qua the natural (as in “it is natural for this person to be king rather than that person”). Without a ground upon which to base the power of the state, without a higher authority to which the state can appeal as an unimpeachable source of legitimacy, there could be no state, no power except through the constant exertion of force, an exertion which was understood to be a support for natural law rather than natural law itself.

However, with Article VI of its Constitution, the United States announced in Enlightenment fashion that it needed no other authority than itself: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” This self-grounding of US jurisprudence does not change anything in the relationship between natural and juridical law, which had always been non-existent even as it was invoked; rather, it exposes the historical reality of this non-existence.

The historical absence of this relationship is made clear when we read together the following passages, the first a crucial scene from Blood Meridian, the second Spinoza’s discussion of the fallacies of the human interpretation of Scripture. Blood Meridian:

In the afternoon [the judge] sat in the compound breaking ore samples with a hammer, the feldspar rich in red oxide of copper and native nuggets in whose organic lobations he purported to read news of the earths [sic] origins, holding an extemporary lecture in geology to a small gathering who nodded and spat. A few would quote him scripture to confound his ordering up of eons out of the ancient chaos and other apostate supposings. The judge smiled.

Books lie, he said.

God don’t lie.

No, said the judge. He does not. And these are his words.

He held up a chunk of rock.

He speaks in stones and trees, the bones of things.

Spinoza:

But ambition and iniquity have reached such a pitch that religion takes the form not so much of obedience to the teachings of the Holy Spirit as of defending what men have invented. Indeed, religion is manifested not in charity but in spreading contention among men and in fostering the bitterest hatred, under the false guise of a zeal in God’s cause and a burning enthusiasm. To these evils is added superstition, which teaches men to despise reason and Nature, and to admire and venerate only that which is opposed to both. It is therefore not surprising that, to make Scripture appear even more wonderful and awe-inspiring, they endeavor to explicate it in such a way that it seems diametrically opposed both to reason and to Nature. So they imagine that the most profound mysteries lie hidden in the Bible, and they exhaust themselves in unraveling these absurdities while ignoring other things of value. They ascribe to the Holy Spirit whatever their wild fancies have invented, and devote their utmost strength and enthusiasm to defending it. (456-57)

For both the judge and Spinoza, god and nature are the same thing. What god is and says is inseparable from the materiality of the world—a materiality that cannot be questioned, that does not lie, and that is not amenable to what humans say about it or the rules they make when attempting to control it. We can clearly see here the impetus behind the grounding of juridical law in natural law: doing so gives the illusion of control, a false appearance that the present conditions, current social relationships, extant power structures are natural or “right.” However, despite the fact that nature/god does not lie (and is aligned with reason!), no human abstraction of it can be true in the same manner and thus there can be no relationship between natural and human law, the latter of which is comprised entirely of such abstractions. To understand this point, we must back up and consider what natural law is.

Natural law is often deployed as a justification of social relations (such as those deployed during slavery in the American south in the eighteenth and nineteenth centuries), in the manner Spinoza describes above. Those who use natural law as a justification for human constructions—social relationships, juridical law, etc.—do so out of fidelity to their own needs and desires, not out of any kind of adherence to nature itself. However, to fully understand natural law we must understand that these constructions are themselves natural. That is because natural law is not about definition, is not about saying that x is y or that because b followed from a, b was the only possibility. Rather, natural law is the condition of conditions. That b followed from a only means that it was possible that b followed from a, that b had the ability to follow from a. X is not defined by being y, but rather because it is able to do z. Thus the statements made by humans by nature are natural; they could not take place if they were not. However, they are not the truth of nature. C could also have followed from a, even if it did not, despite any human attempt to construct a rule that describes the relationships between these terms. Natural law governs becoming, not being (except in the sense that being becomes). In short, natural law is nothing but the affordance and constraint of “to do,” the sum of the world’s ability to interact with itself.

Thus natural law is best understood from an ethological position, where ethology is not simply the study of animal behavior, in which the animal is understood to be an object of study in an environment that is separate from it. Instead this ethology, as defined in Deleuze’s reading of Spinoza, is constituted by three interrelated avenues of inquiry:

1. The capacity of a thing to affect the world or be affected by it.
2. The manner in which these affects are “realized according to circumstances” (126).
3. The various manners in which things interact with one another, often as they come together to compose new things.

Such a study is never of a discrete thing but only ever of several things in various states of addition, subtraction, multiplication, division. It is not the study of an ape or a bone, but of the ape-bone and all the consequences thereof. It is the study of a thing doing.

In order to turn our attention then to the subject of computer technology in the twenty-first century—a study that clearly must focus on the ability of humans to do as they interact with this technology, that must only be the study of such interaction and never the study of any prescription of interaction—we will turn to an easily overlooked, if crucial point made in 2001, namely that, between the first use of the club and the development of space travel, not much happens in terms of human evolution. Such is the case because the difference between ape-the-non-tool-user and ape-the-tool-user is more significant than that between ape-the-tool-user and human-the-space-traveler. When he becomes ape-the-tool-user we might even say he becomes human, even if the notion of humanity would not be developed for another 10,000 years or more. He becomes human because his relationship to his environment has changed. He is no longer a being upon whom the environment acts without reciprocity; he is now the one who acts upon his environment. Although the technology he uses to do so will develop greater complexity and impact, this later evolution results in a difference of quantity, not quality. The ape is the classical philosopher, the Scholastic, the thinker of the Scientific Revolution, the purveyor of Enlightenment, and the contemporary seeker of the Grand Unified Theory; that is, he is the would-be master of nature, the one who would speak for it in words that are alien to it, the one who will read in it only his own desires for what it is and never see it for what it does.

Then, of course, another monolith appears.

As in 2001, the human relationship with nature is evolving again. The result is that, in the early twenty-first century networked society, the non-relation between human and natural law is being re-constituted and must therefore be rethought.

Intellectual property has long been protected by copyright, trademark, patent, and trade secret law. However, especially in the case of copyright, with the advent of network and peer-to-peer filesharing technologies, the natural laws (volume, weight, proximity, etc.) that content producers unknowingly relied upon to regulate the human ability to exchange cultural objects such as video and music with one another are no longer a reliable complement to human IP laws. In the wake of their understanding of this crisis (as they describe it), content producers employed a twofold approach. On one hand, they sought to deploy better architecture, better code, to protect their interests: Digital Rights Management, which allows certain objects to interact with certain devices (WMA files work with the Zune but not the iPod); trusted computing, the attempt to make computers behave in certain prescribed manners through the use of hardware and software constraints; the broadcast flag, which tells digital recorders what can and cannot be recorded, regardless of fair use laws; selective packet loss, by which ISPs drop information bits from their networks because they are being shared by certain sanctioned protocols (e.g. BitTorrent). On the other hand, they sought protection in new laws such as the Digital Millennium Copyright Act (DMCA), which prohibit attempts to circumvent these natural constraints on our ability to do, as well as by patenting the mathematical algorithms behind their software.

We can see immediately the radical shift that has taken place here. Formerly, natural law (in the form of an interpretation of nature constructed by those who sought to benefit from it) was a means by which to support juridical or human law. However, given the new nature of computer technologies (and nature metaphors abound in discussions of information technology, metaphors that are truer than even their propagators sometimes understand), human law must now become the support of natural law. In this way is the system closed to all but the elite. There is no way to do in a system that is designed without such affordances. Moreover, if such an affordance is discovered, human law forbids its use. The circle is completely closed by the fact that, in many instances, the natural laws that govern the system are capable of reporting to the authorities any violations of the human law that is overlaid onto the system, thus invoking a consequence that plays itself out in the new state of nature.

Several examples will make this point clear. First, since April 2005 so-called “homebrew” developers have exploited certain features of Sony’s PlayStatino Portable (PSP) to allow for the execution of unsigned code. There were two results. First, PSP users gained abilities to do things they had not previously be able to do, including the ability to the internet, to run other operating systems, and to play games from unlicensed producers. Second, Sony “upgraded” its firmware in an attempt to prevent users from using such abilities. Sony is, of course, protected not only by this firmware, but by the intellectual property law and End-User License Agreements (EULAs) that support it. Similarly, after hackers discovered a way to unlock the Apple iPhone without signing up for AT&T service (the only provider authorized by Apple to service the iPhone), Apple, during routine software upgrades, “bricked” offending devices (destroyed there capabilities to do in any capacity other than as a brick). A violation of human law, reported automatically through natural channels becomes of the object of a violent, natural response that is in turn sanctioned by human law.

While the PSP story has a rather happy ending—hackers have now found a way to permanently overcome the firmware upgrades that make their hacks obsolete—and the iPhone story is ongoing, the danger represented by the tactics of the producers of these devices is clear. Moreover, it is equally clear that there will not always be a happy ending. If, for example, ISPs have their way, the idea of net neutrality may become a thing of the past. Net neutrality, currently being debated by the US Congress, is the doctrine that ISPs must provide equal access to all information online. However, ISPs argue that, as they own the physical hardware that makes up the internet, they have the right to charge access fees not only to those who use the internet, but also those who produce the content on the internet. In the latter case, the fee would ensure that the ISPs do not slow down traffic to their sites. If ISPs are able to charge a fee above and beyond those paid by producers for hosting and domain registration for the simple ability to provide content to consumers quickly, then soon the only content online will be produced by those who can afford to pay. No hack is likely to overcome this alliance of natural and human law, an alliance that forces us to reconsider the judge’s understanding of moral—which is to say human—law as that which disenfranchises the strong in favor of the weak.

And despite this danger, there still exists an uncritical understanding of the ethology of coded society, a society in which the two forms of code, legal and natural, have become inseparable: that freedom is a natural state. As Lawrence Lessig puts it: “Cyberspace, the story went, could only be free. Freedom was its nature” (5). As Lessig would agree, however, this concept of freedom is an ill-defined, unthought freedom, a freedom that always allows—that guarantees— according to the zeal of its believers, access and creation—in short, all of the positive and progressive concepts conventionally associated with the term. This freedom is that found in such statements as “The land of the free”: the freedom from constraint. Any infringement of that freedom is understood as “unnatural”: an aberration in an otherwise homogenous and transcendental system. Such lapses are considered temporary. However, as Lessig takes pains to point out, it is only because of the constructed architecture of cyberspace that there is freedom of this sort. Given a different architecture, a different code, cyberspace would no longer be free. One of Lessig’s goals in his first book, Code and Other Laws of Cyberspace is to “crack one meme about the nature of the Net—that the Net has a Nature, and that its nature is liberty” (Code 31). It is the conflation of freedom with the more recent notion of liberty that is at issue here. Liberty is one thing, and a good thing. However, liberty means nothing if it is not coupled to a deeper mode of freedom, a freedom that a true democracy (one that does not confuse the relationship between natural and human law) must, however problematically, contain within itself: the freedom to no longer be free, which is also the freedom to longer exist.

It is this threat that ethology must finally understand, must finally study, and must finally accept: that things cannot come together or interact without the possibility of destruction. When a human interfaces with a machine, the result might be “good.” However, as we have seen in history and as represented in texts such as Blood Meridian and 2001, the result might be “bad.” The bad may be for anyone involved, or anywhere near the interaction. We should not condone reckless behavior of course, and we do not here call for research in the service of decreasing affect. However, the act of interaction must not be forbidden, must not be prevented. To do so would be to no longer do, would be to give up our ability to use our abilities, to discover new abilities and to re-constitute our relations to the world. Of course, it is exactly such reconstitution that threatens power, as it promises to create new means by which those without power seize it from those who do.

We will thus close with an enigmatic passage from Blood Meridian, a dream the novel’s protagonist, known only as the kid, has of the judge near the conclusion:

The fool was no longer with [the judge] but another man and this other man [the kid] could never see in his entirety but he seemed an artisan and a worker in metal. The judge enshadowed him where he crouched at his trade but he was a cold forger who worked with hammer and die, perhaps under some indictment and an exile from other men’s fires, hammering out his own conjectural destiny all through the night of his becoming some coinage for a dawn that would not be. It is this false moneyer with his gravers and burins who seeks favor with the judge and he is at contriving from cold slag brute in the crucible a face that will pass, an image that will render this residual specie current in the markets where men barter. Of this is the judge judge and the night does not end.

What the judge finally judges is the future of a species that seeks to weld to nature its own law. In Blood Meridian, this enterprise is seen to be a fool’s errand, one that only perpetuates the evening (both dusk and flattening) of the West. In the judge’s world, natural law is forever other than human law. Such is no longer the case, and for all the darkness in McCarthy’s novel that results from this non-relation, the ethology of coded society must contemplate more darkness still.

Works Cited

2001: A Space Odyssey. Dir. Stanley Kubrick. MGM, 1968.

Deleuze, Gilles. Spinoza: Practical Philosophy. Trans. Robert Hurley. San Fransisco: City Lights, 1988.

Lessig, Lawrence. Code and Other Laws of Cyberspace. New York: Basic Books, 2000.

McCarthy, Cormac. Blood Meridian or, the Evening Redness in the West. New York: Vintage, 1985.

Spinoza, Baruch. Complete Works. Ed. Michael L. Morgan. Trans. Samuel Shirley. Indianapolis: Hackett Publishing Company, 2002.

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