Law as medicine in the age of Kafka

Psychiatric medicine is to our society today what the Church and its Inquisition once was to Catholicism. The faith that corresponds to the new state church is "therapy," or, in its broadest sense, "spirituality." It is especially worth noting that in those Protestant countries like the US where this is especially popular, it rarely involves, and does not require, any intellectual engagement. Indeed, if much of the New Age is an embrace of the "superior wisdom" of (ancient) Indian and Chinese thought, not only are these absurdly amalgamated (ignoring all the differences between the Chinese and Indo-European languages), but almost none of the many apostles of this faith has studied the original texts or the history of their successors and commentaries in these languages. Our culture being essentially practical rather than theoretical, it may be assumed that there is a "spiritual" and therefore right way of riding a bicycle, and things of this kind meet a broad and wide accord, but that there is a spiritual way of reading books or encountering works of art is a proposition that is, at best, so rarely remarked one may assume it is well forgotten. 

The new church does not punish people for their sins but their vices. It has no virtues, unless obedience, or as they call it, "compliance," is one, which is to say that these are situations of authority that is exercised with an expectation of blindness and ignorance, as those subject to it are not expected to understand what passes for thinking beneath the judgments that are presumed true by virtue of the professional expertise of the one judging. 

The liberal war against “prejudice” grasps a profound truth that it misconceives only in limiting it to mean disrespectful remarks about or to minorities. This truth is that in a bureaucratic capitalist society that does not place a high premium on practices of careful thinking, as opposed to judging, with its characteristic immediacy and (from the standpoint of thinking) often false certitude, people are always being dismissively regarded as being this or that, or like this or that, and these judgments or opinions or impressions can sting because people know that if someone in a position of power enunciates them, they can be damning, immediately and beyond recourse. Oh, you could protest, but then you will face a procedure that is exhausting and is in a way designed to be, and which will function by accusing some other individual so as to serve as sacrificial affirmation of the justice beyond all particulars of “the system,” which allows such processes. In this way, all injustice is reduced to sin. (Thus, a police officer who kills an individual, maybe a black man, will perhaps, exceptionally, be prosecuted; this reveals the desperation of the guardians of our institutions to not allow them to be criticized, though it is exactly that that needs to be problematized and changed).

It is a measure of the eclipse of government by law that people are judged by their appearance and the prejudice of those judging, and according to dispositions attributed to them. Which they need not be aware of. The expert knows the truth and meaning of your behavior and how you think and feel, and that truth is a diagnostic category found in a dictionary written by a conclave of diagnosticians. It is a dictionary of received ideas. There is nothing scientific in the form of thinking that is applied here, which is a mode not of inquiry but enforcement. The modern subject is liable to be sanctioned, without needing to understand anything at all. 

Crime is ubiquitous as imagined. Being judged "mentally ill" is being presumed to have dysfunctional behavior that is understood to be a disposition for crime.  The existence of the mental health apparatus makes it possible to sanction and exclude persons who have violated no law but are suspected of dispositions to behave in ways that ought to be prevented.  The judgment of this disposition for evil or crime depends on no criterion external to it, so no reason need be given by the one judging other than that this is their impression, which has the weight of the scientific knowledge their judgment is said to apply.  The liability that used to be called sin is now simply Lack.  It is a Lack that one cannot cure through any learning process, as it is essentially innate.  It is a problem that cannot be solved, but only managed and controlled.  And it is for these reasons that the “mental health” system with its doctors and therapists is the form of behavioral management to which most citizens now are supposed to be subjected.  This Lack means that your significant potentialities are bad ones.  This is why, for example, psychiatric patients are not asked if they drink (or use drugs) in excess but if they do at all.  This is also because people are presumed normally unable to control their own behavior.  In fact, if you have a tendency to think, feel, act, or behave in any particular way, that, for these diagnosticians and managers of every imaginable psychical or personal condition, is a “mental illness.” A disposition to behave in any way at all is a mental illness, and it is a disposition to crime, which may just be the new name for what is not tolerated, as well as what imagined as threatening the polity.  

It is a question of lack, as crime, failure, or suffering, all of which the individual judged is liable for but, of course, not guilty of, so that the judgment is never quite made explicit as a moral one. This system has no morality but only its semblance in condemnations that deny that they are that. A doctor will think you a criminal if you seem angry, or not passively and agreeably docile and compliant. This takes to an extreme what is already true in modern law, especially in America. Precisely because there are so many laws on the books that one could not possibly know all of them, so that law is not something ordinary persons can study and learn, as with Jewish law. The person judged as a criminal is first disliked as a person, perhaps because noticed as noticeable and so abnormal, and then the law that can be applied is found. This means that ultimately there is no difference between accusation and condemnation; there is no trial in modern judgment. As in Kafka, one is condemned because one can be observed, talked about, and have imputed to him certain actions or dispositions. They are true immediately and automatically because they can be uttered, and have the truth of what is uttered, by someone in authority. 

To accuse originally was, in Greek, kategorein, to name and classify. In the trials to come, not persona but things, or matters, should be accused. This makes possible literature and theory as distinct from the thinking in law, which is merely the prosecution of someone, aiming to set things right, in a world where nothing where ideally nothing would be said, since speech is error. And one only ever needs to speak because one is in the wrong, or someone else is.