Does law determine what justice is, or does justice, when heard, show what law ought to be? or, The life and death of possibility, as lived by us all, at every moment.
It is nearly impossible to treat every moment as new--but it is. I have been thinking about this in terms of my experience of David O. Russell's movie Three Kings. The film functions at its most accessible level as an anti-war film, and has been advertised as a male-bonding caper film, but what it is about on a deeper level is human possibility--what you are, what you have been, what you may become. And, in tapping into possibility, it builds for us an ethics of responsibility much more powerful than the one we (for the most part) live with now. In the film, as in life, every character is saddled with a past, part of which she or he has chosen, part of which is simply what he or she was born into, and each character tends to be judged by and in turn judge others according to these various past moments. Such opinion-forming and judgment-making is our way of walking through the world; it helps us know who to trust and how to predict the outcome of our personal and business dealings. We know what people are like. For instance:
Why? Because it is difficult if not impossible to recognize each arriving moment as new, as possibility--but it is. Things change. Events and people present themselves before us and offer the need for or possibility of choice, action, movement. And while it is true that we are not entirely free--fate or circumstance will often have its way despite our will--we are often more free than we think we are. It is possible to decide to take the difficult route. And sometimes, it is even as if such decisions were not decisions at all, as if they were made for us, already, by our very responsibility to other beings. This makes the paradoxical point that we are both more free and less free than we think we are, or, stated otherwise, that we may not be free in the ways we think we are, and may have more freedom where we experience the most constraint. Hold on and I'll explain.
Every moment is new, though people tend to like order and predictability. Every moment offers possibility of change, and it is only our arbitrary institution of order that changes this--for good or bad--makes things stay still. Of course, stability is in many respects necessary to human life and happiness. But so is growth. The question is--where is the line? How do we recognize change when it beckons us?
Before the soldiers locate the stash of Kuwaiti gold, but after the younger soldiers learn from Bates--who is clearly much older than these fresh-faced men--what happens to a body that has been shot, why they should always avoid firing weapons unless it is absolutely necessary, this conversation occurs:
Bates: What is the most important thing in life?
In some ways, the logic of wartime speaks here, wherein there is no regular law, wherein different sorts of things become significant, or right, or acceptable. But in another very important way, Bates' rule of necessity is a rule for all times. Consider this--in the film, gold in hand and given an open road out of town, Archie Bates can't leave....
flash back for a moment...
After Troy Barlow and Conrad Vig recover a map written in infrared ink from the ass of an Iraqi soldier they've taken prisoner, they try to parse it out with Chief Elgin. Archie Bates, our corrupt Special Forces man about-to-retire, walks in and "helps out." They all know that the stolen Kuwaiti gold is likely to be in one of the bunkers marked on the map. They all agree to leave at dawn to retrieve this gold and ensure better lives for themselves back home. They're not heroes, just ordinary men wanting something better than they have, and wanting to get it easily.
As predicted, the Iraqi soldiers are more concerned with putting down a rebel uprising than defending gold, and so they even help load the truck, to hasten the departure of the U.S. military men, who, as potential witnesses to their job as slaughterers, are in the way. Still, in the bunker town, gold in hand and given an open road out, Bates can't leave. He has just seen an innocent woman shot in the head by a soldier of her own country in front of her daughter and husband, and knows that the minute he and his three fellow soldiers leave town the remaining civilian population will be slaughtered. He rests his head on the steering wheel in grief, or is it resignation? He cannot leave. Barlow jumps in the truck, starts the engine. He is thinking about his wife and child, has not been affected by the lives he is in the midst of. He yells, "What about necessity? This is not our business!" Bates replies, "Necessity just changed." Elgin adds, "What if this was you?" and Barlow retorts, "What if this was you without bullet-proof clothing?" Bates raises a weapon to the head of an Iraqi military leader, tries to negotiate a deal in which the Iraqi soldiers leave town, leave the citizens in peace. They refuse. Such a move would be death for these soldiers, and most likely for their families, too--the price of desertion of Saddam's army creates its own kind of necessity. Gunfire breaks out, and it is no one's fault. A soldier shoots himself in the foot and sets off a reaction. What takes place in a matter of seconds slows down, the film records death: slow motion bullets hit soft flesh, make sounds of metal hitting life, ending life, men and women fall to the ground, bodies thud, have impact, weight, sometimes, we see the inside of a body, what a wound does, how organs are destroyed. Our military men flee with the remaining villagers, and it all goes downhill from there, as far as the get-rich-quick scheme goes.
This film slows down what usually happens quickly--gunfire, reaction time--to show that in a split second a life is decided, be it through violence or through a face-to-face encounter with another's life, the decision to kill or be killed, or the decision against this--to hear life's call in a different manner. But that we think of this in terms of decision is misleading. Slow motion shows the impossibility of deliberation. This is something other than thought, will, or even conscience. So what does "make the decision"?
You could say that in this instance Bates' calculation as to what can be gotten awaywith in a time of war, when laws governing our everyday lives together are suspended, was mistaken, or has misfired in some way. But this is not a question of calculation but of necessity. If gold had been his only concern, he would have succeeded precisely according to his calculation. But there is something about life that calculation cannot capture. The situation has changed, has presented itself as new. For Bates, it simply was not possible to choose to allow the slaughter of so many innocent people, once he had been in their proximity, seen their faces as human. The decision was made even before it presented itself as a choice.
War is only possible when we allow a fictionalized other or enemy to be constructed for us out of all those lies that make certain we realize how different other lives are from ours, and how threatening that difference is. If we think of our lives as constituted in opposition to what we are not, then we find ourselves threatened by all difference. The belief that war is necessary to peace--that war could actually end war or bring peace--merely ensures that no one living knows what peace really is. Divided up into states, we stage conflict like cheerleaders stir up spirit. Our leaders make life-and-death decisions (on behalf of the soldiers and civilians they are so very far away from) about who and what is inside and outside, good and evil, right and wrong, and we are taught to feel good about being inside, good, right. But even the most cynical common sense knows that this must bespeak a poverty of political imagination. Almost every two-termed argument is a false dilemma (or, as a dear friend of mine is fond of saying, the answer to any hard question is always: "both, and strangely, neither"). It is possible to live differently, to think otherwise. It is possible at every moment. But how can we recognize this? As our military men flee with the Iraqi citizens, safeguarding this sudden responsibility they have been given, the Iraqi soldiers fire some sort of combat gas at them, one vehicle hits a landmine, the other flips over, the bags of gold are strewn across the desert, Barlow gets kidnapped by Iraqis as he tries to lead some children out of a minefield, and the other three soldiers, with the villagers and much of the gold, are led into an underground cavern by a mysterious band of gas-masked Arabs whom we intuit are rebel forces.
Vig, who has just lost an eye in the vehicle-hits-landmine debacle, is at that moment ready to risk his life to go in search of Barlow, his friend and commanding officer. Elgin keeps him from doing so, but not without a fistfight between them in which race hostility seems more at stake than anything else. Bates makes a search for Barlow and finds nothing.
Back in the underground cavern, an American-schooled Iraqi who speaks English and has returned to Iraq to build a hotel business, after a stand-off/negotiation with Bates, agrees to help find Barlow on condition that they split the gold amongst all the villagers and lead them across the Iraqi border safely into Iran. Anything less would mean death to them all at the hands of the Iraqi army. It is the right thing to do, and they will all still have enough gold to live a good life.
Here, again, what we think of in terms of negotiation and decision can be rendered also in terms of necessity. We are now responsible for the life of a young soldier who has a family back home, and in order to find that soldier, we need the help of this "foreign" man--who will not help unless we help 50 Iraqi citizens live. But is more the face of the man, and of his young daughter, and the memory of her mother's recent murder, that "makes the decision." The man, Amir, says to Bates, "Look at my daughter. You save the Kuwaiti's gold but go to jail for helping us live?" Their eyes meet and a deal is made before the handshake.
The only way to say no to such a request would be to ignore the demands of humanity, something we know before decision. It is not a matter of weighing odds but of hearing or not hearing a call. We all know how easy it is not to "hear" such a call--we U.S. citydwellers walk by people dying in the streets on a daily basis. Institutionalized law is precisely the mechanism that makes it possible not to hear the call of responsibility ("I am not required under law to save this person"). But such law, when we give thought to what makes law possible amongst humans, and see that it is based in a responsibility (and not vice versa) that we can't strictly explain away via rule- making, also holds out the possibility of recognizing the depth of the responsibility we bear toward other beings. Again, hold on and I'll get there.
Vig, the cracker, tries to apologize to Elgin, the black man, for fighting him, for making racist remarks, for not understanding in this situation which racist remarks are allowed, which not. He is too ignorant to know what words are wrong in an army full of men who use terms like "camel-jockey" and "raghead" in an everyday manner. Elgin at first won't accept an apology, won't listen to Vig's words or take his outstretched hand. He doesn't have time for a white boy who doesn't understand what is offensive about "dune coon" or "sand nigger." But something in the hand's insistence, and the look of the one remaining cracker-eye, draws him in, and they propose a peace.
Vig, however, is angry with Bates, accuses him of making the wrong decision back in the village. Bates responds: I had no choice.
Meanwhile, Barlow is being tortured by Iraqis, for no particular military reason. The head torturer wants him to see that this war is fought for oil, and that civilians are dying at the hands of all sides for nothing but money and greed. His actions are the actions of a father whose young child was killed in his bed while sleeping. He asks, "Can you think how it feel inside your heart if I bomb your daughter?" Barlow sees that this is worse than death.
When Bates arrives to rescue him from the torturer, he hands Barlow his gun, so Barlow can shoot his torturer. Barlow empties the gun to the side of the man who has electrocuted him, beat him and made him swallow crude oil. One could read this as punishment: the Iraqi has admitted that his life is worse than death, and that his family members have all been killed. But it is more resolutely a move made in refusal of murder. When Bates and Barlow emerge from the bunker-of-torture, Barlow is clearly suffering a trauma. In his confusion, he aims his gun at Amir, the Iraqi man who helped rescue him. Amir says, "I am here to help you," and when Barlow finally hears him, he smiles, says, "That's great, man," and starts hugging him. "What can we do to help you?"
Amir answers, "You can get us to the border, though now that we have emptied this bunker, there are many more of us." Elgin says it is impossible to help them all, and Barlow replies, "OK, well why don't you go choose the ones that get to live and let the dead ones know, because I'm not willing to do that."
They help them all.
This is a war film in which no death is justified. Each death is seen for what it is--violence, end of life, loss to loved ones, senseless, bloody, messy, unnecessary, stupid and barely explainable. There are no massive gunfights, no battle scene moments in which we are supposed to feel the death of the enemy/bad guy as uplifting justified victory--as denouement to our entertaining drama. Violence is always the needlessly stupid answer to a question left unexamined because barely asked. In the film, no one, no matter what "side" they fight on, is unequivocally good or bad--except Saddam Hussein and George Bush, who function not as men but as metonymies for distant power. Iraqi soldiers act as they do because if they do not follow orders, they and their families will be killed. And there are Iraqis who, despite the threat of death, have left the army and fight against it. American soldiers believe they are liberating some state called "Kuwait," they believe that they fight on the side of stability, right and order. Or they are more cynical but still believe in duty.
After all, war breaks out when stability is threatened. War is a time of nonstability waged for the sake of restoring or creating order. But what of this war? What was threatened, what restored? The cynical answer heads straight for oil and greed, and is probably closest to the truth. Three Kings has represented this war, and, perhaps, war in general, not as a period of nonstability but as a period of the worst status quo-entrenched stability, a period during which bombs are dropped to save gold and Rolex watches and Infiniti convertibles, but it is against the law to save a human life. A period in which, in advance, it has already been decided what is right and wrong, who is good, who evil, by both sides, and no victory or loss will change this, save for what some but not all history books will say. In war, it is wrong to do good, wrong to feel the call of a responsibility that is not subject to law--it is wrong to be human. Even a suspended law, a wartime law, is an order determined by a distant power largely unaffected (to varying degrees, Hussein being much more affected by the violence in his country than Bush would be by violence so very far from his home) by the violence it has created.
Toward the end of the film, when the relatively "unknown"-to-us military commanders are arresting our "heroes" for acting against U.S. policy, we know that it is because these commanders are following orders, are part of a chain of command that cannot be responsible to what has happened out of their sight. They are the law, the status quo, the guarantee that things run smoothly and remain the same over time--predictable, rather than rising up against us and our order and changing or challenging it. This is their job. And we do need some order in this world.
But of course they are military men. In the long run, they don't need to know why, they simply do their duty, and in such a system what "is" is swiftly converted into what "ought to be so." In other words, it is the death of possibility. It is the very gap between "is" and "ought" that makes possibility "so." When the "is" is unquestionable, there is no "ought."
When the military commanders arrest the men who began as ordinary easy-way-out get-rich-quick seekers and ended as heroes, we know the commanders know who these men are--a crooked Special Forces commander, a headstrong black sergeant, a party-guy army-reserve man. They know who these men are and have been, and therefore they know what has happened, who is at fault, where the chips fall. It's nothing new.
But we know that the arrest means many things: if our "heroes" are arrested and quickly taken away from the scene, various bad endings result: 1) the 50-some Iraqi civilians that they are helping over the border into Iran will be slaughtered by Iraqi border guards; 2) Barlow will die if he doesn't get help with his chest injury; 3) these men will go to military prison for trying to live up to the promise made to Iraqi citizens by the American president and, more importantly, their commitment to honor these lives; 4) everything will remain the same.
Adriana Cruz turns good when she sees what has really happened. She rolls film and begins talking. The commanding officer has her silenced, but consents to speak to the border guards, for appearances. Cameras off, he proceeds to arrest the "heroes," and the slaughter of the citizens, a mere 50 feet from Iran/safety, is guaranteed to happen off-screen. Bates, Elgin and Barlow plead with them to escort the citizens over the border. The arresting commander yells, "We're not involved in this problem." But even if we ignore the extent to which the U.S. had a hand in creating the problem, his statement is an example of an everyday account of ethical respon-sibility that is simply untenable, though it may be prevalent. We tend to think that our responsibility to others is governed by law or right, that it follows from such institutions. But this cannot be so if we are to explain what law is and why we believe in it (and if we largely don't believe in it anymore, this is because law has lost sight of what it o ught to be). Law is not simply a mode of social control legitimized by violence or a fictional social contract (though it still is this in many important ways)--law is what is instituted by necessity wherever people live together as community.
Between two people, as in the experience of love or friendship, there is no law, no question of law, no need of law. We even give without expecting return. Yet when a third party enters the scene, so does the possibility of betrayal and the need of decision-making criteria. Wherever people live in groups, they need to have guidelines for action and problem-solving. We make law to protect ourselves and others because we recognize the importance of our responsibility to the other and thus seek a way to make what happens between two people without benefit of law part of our lives amongst a greater number. Academics and/or fans of French ethical philosophy (how many of these could there really be reading these pages, I wonder?) will recognize here my deep indebtedness to the thought of Emmanuel Levinas.1 I have taken his structure of responsibility-for-the-other and applied it to an analysis of Three Kings, possibility, war and peace.
Some of you will be thinking that this account of law's foundation cannot be correct. Law is an oppressive institution run by force, power and coercion for the benefit of those who have power or money. But consider this: could it be--is it possible--that such law is law that has forgotten its origin in responsibility for the other? As Levinas might say, what else could explain the excuses we fashion or the remorse we feel when we do not act according to what we know our responsibility to another person to be? Rationalization of action we know to be wrong or guilt felt because we were not human to another human, this is not the psychological effect of oppression but a reminder of what makes law possible and necessary: responsibility for the other, and our knowledge that this is beyond our capacity to decide. It is chosen for us.
However, living amongst many people, any number greater than two, introduces the possibility of resistance to responsibility. We begin to calculate what is right, or what we can get away with, or what might be detected by law.
But love, friendship, these things cannot be explained by loyalty alone, and thus, if we adhere to the now-common thought that there is no such thing as a responsibility prior to any reckoning with law, we are still left with the real and undeniable unexplainable fact of it: That I would do anything for this person. Thus, my responsibility to the other is a necessity that I have somehow learned to deny, under training of a law that thinks it determines what justice is rather than admitting that justice, when heard, determines what law is.
My responsibility for the other does not apply only to my friend, family or lover--they are the remnant I cannot deny, not the anomaly I have chosen to take responsibility for. This is not choice, it is necessity. Barlow sees this when he sees, despite his torture, his torturer's grief.
The position I've laid out is a denial in no uncertain terms of the existential account of a freedom that begins in my decision. Of course we are free--we choose where and how to live, whom our friends are, how we spend our time and what we stand for, what is important. But the human craving for stability leads us to accept these freedoms as rights or laws rather than choices made via judgment. We think of them as something owed us rather than something we earn by remaining human, as "what is" rather than "what I have chosen, made happen, for myself and for those around me." We think our freedom rests in our ability to choose these things, and that rights are simply what are owed to us by a state. Yet it is equally possible to believe that rights are what we choose because we value humanity and thus, valuing humanity prior to all else, we choose rights that leave beings free, and freedom is not absolute liberty but my freedom to choose which commitments will constrain me, after the always already chosen commitment to humanity. There is no absolute liberty in a world of more than one inhabitant. When we think every freedom is an unconditional right, we think change to "what is," change to the status quo, is a threat to our very existence rather than simple human growth or change. Then we think of freedom as a right to property or comfort even at the expense of other people's freedom, property or comfort.
But in coming to such a conclusion, we have made our freedom unfree. Our choices have been set in stone, made unchangeable.
And, in such a mindset, we forget that what is important in freedom is humanity, that freedom cannot be taken at the expense of other freedom or humanity and still be what it is. Then we are able to assert, in all violence and honesty, that the right to property, the right to bear arms, or the fact that we have enough money to force oil partners to do what we want, is more important than another person's life. All this, because we have made the abstract concept of "freedom" into an unchallenged assumption rather than a living human truth subject to change and judgment on what is right. Thus, we come to believe that, just as we know what people are like, we know who is like us and who doesn't deserve our protection or kindness. Such a way of life functions on the model of the military, wherein duty and command must remain absolute, unquestioned, because the very existence of a nation is at stake. There is no room for change or judgment. But such thought functions as if our every waking moment were a state of emergency that must wait for peace in order to live freely again. We live under a command, yes, but we ignore what should be a command--our humanity, our living together--and obey our simplest status quo thoughts. We want things to stay as they are because they are that way. Unthinking. "Because we are free." But then what has our existence become? We must wait for peace in order to live freely again, but we call how we live now "peace" and have no intention of changing it. Indeed, we are afraid to change it. Back in the film, Bates, Elgin and Barlow are being arrested, and the Iraqi citizens (now referred to as "refugees," and we know how much room the law has for these) are, we know, going to be murdered. We also know that none of these men are precisely the same men they were before.
And here we have a point made as cynically as possible--but perhaps this is what realism is--that it is only the combined presence of the media and its cameras and the lure of Kuwaiti gold that changes the possibility of this moment. Once an unbridled over-legitimated power has reentered the scene, our hope of the face-to-face encounter has ended. Our men will go to jail, the innocent citizens will be slaughtered, the United States won't care now that it has its oil partners back, and the heroes in the press, if such a story ever reaches the press, will be the arresting commanders, not our men who faced and made the difficult ethical decision that presented itself as the very lack of decision, as a decision made in advance against any concept of will--this simply is what is right--in the encounter with the face of the other. At this point, the gold has lost its worth in the face of this price. Bates, Elgin and Barlow know where it is, buried back near the torture-bunker. Via visual agreement, a look on the face, they agree to give up the remaining gold to save the Iraqi citizens. Bates reports that they have the gold, and that the citizens helped them recover it in exchange for safe passage to the border. Now, soldiers' honor is at stake, and the arresting commander smells promotion in the wind, a military star for his uniform.
So in the end, it is not the face-to-face ethical relation that saves the citizens, but gold, media power and the ambition of a rule- follower manipulated by a man with a better motive. But is that really the case? Without the work of these men to get these people to the border, to give them gold so that, once across, they can rebuild lives, there would be no possibility of life renewed. And they did not choose to do it--it was necessity, the I-would-do-anything-for-this-person of love and friendship, applied to a wider sphere. In love, we do for the other without expecting return. We do what we need to do without waiting for the other to act first. This is what patience is, and patience is peace. If we wait for the other to act first, we wait. We fail. To view the last minute interruption of this process in the film by the military machine as a lesson in what power really is in this world is to miss a very important point. There are ways in which the best of works can't be rendered visible and overtly powerful in this world, because their very existence is passivity--peace. War makes history and is remembered. Peace "merely" makes life livable and thus is not subject to documentation. Our mistake is in thinking that power is always active, always recognizable as such, and that we need to be recognized for our good works if they are to be worth anything. That, too, is the death of possibility.