‘She reigns and he does not govern’: Law, anxiety and protest

by | 7 Jul 2022

Anxiety and hysteria is today a signature feature of public discourse in South Africa. On 6 October 2016, amid a second wave of countrywide student protests, Richard Pithouse, wrote that the ‘cycle of struggle in universities has marked a significant moment in the decline of liberal authority. This has resulted in profound existential anxieties in some quarters. Rational discourse has sometimes been eviscerated by the sharp edges of escalating hysteria.’ Earlier, in 2015, the literary critic, Shane Graham, remarked that the most apt single word to characterize the South African cultural affect in the twenty-first century is “anxious”.

When it comes to the question of what all the anxiety and hysteria in South African protest politics is about, it is hard to miss the prominence of the law and specifically, the Constitution. In the context of student protest, it is clear that the implicated constitutional right is the one contained in section 29(1)(b) of the 1996 Constitution: ‘Everyone has the right to further education, which the state, through reasonable measures, must make progressively available and accessible’. It is on this right that the student protestors of earlier this year relied, as their forebearers in 2015-2017. Outside of the education right, anxiety and hysteria proliferate largely about the realisation of the other socio-economic rights protected in the Constitution: access to housing, food, water, social security, and so on. Sometimes, as is the case in protest about the abuse of power by the post-apartheid Executive, the object of anxiety is simply formulated as ‘the Constitution’ in general. Currently, the possible amendment of section 25 of the Constitution, the property clause, is attracting profound anxieties on all sides of the political divide. Some are anxious that such an amendment will result in land grabs, others are anxious that the amendment will never translate into comprehensive land reform.

When considering this relationship between anxiety, hysteria and post-apartheid law, the psychoanalytic work of Freud and Lacan is helpful, not least because it is in psychoanalysis that we encounter exactly the same conjunction as the one at issue here in the context of public discourse: law with anxiety. Now, it is of course the case that the law with which psychoanalysis works, is the Law of the Father as the fundamental prohibition which regulates access to the object of desire, where desire is understood as always the desire of the (m)Other. Yet, one strand of psychoanalytic jurisprudence explains law in the sense of positive state law as the social institutionalisation and extension of the fundamental prohibition instituted by the law of the Father – the law politically and literally regulates our desire.

What makes Lacanian psychoanalysis particularly attractive as an angle of approach to the relationship between law, anxiety and hysteria in political and legal discourse, is Lacan’s structures of four fundamental forms of discourse. Lacan understood ‘discourse’ as the structures of dominant social bonds, not simply linguistic relations. The discourse and the social bond of, specifically, positive law, Lacan calls the discourse of the master. For Lacan, this master’s discourse of the law – the signifying operation of the law’s address to its subject – always produces a remainder which Lacan calls the objet petit a. This is the object-cause of desire and, in a certain sense, it is the psychic consolation for our obedience to the law. To put it succinctly, the application of the law always already produces (more, further) desire and, in the context of the law, this desire is the desire for justice. Justice is the excess, then, or the remainder of, the law’s address, it is that which exceeds the law, because justice is the object-cause of the law’s desire. Law and the justice that it produces is always already lacking – there is always more justice to be done, we are always, in a sense, ‘behind’ on justice.

Today, however, the Master’s discourse functions somewhat differently. The predominant discourse of the Law is no longer the old discourse of straightforward positivist law as command backed by sanction: ‘do this, do that’, ‘or else’. The discourse of the master today predominantly takes the form of the proliferate extension of (human) rights. To come straight to the point, the fundamental feature of this form of the master’s discourse – which is unmistakably the discourse of liberal authority – is not the production of desire as lack, but rather the production of the law as the termination or fulfilment of desire – a discourse, then, which strives to produce an impression in the law’s subjects that there is no longer any gap between law and justice, that the law is justice. In psychoanalytic language, rights discourse under conditions of advanced neoliberal capitalism ‘strives’, ‘to produce the impression that the object [of the law as justice] has already been attained’ (Salecl 1994). This means that we can no longer interpret the objet petit a – which is produced in Lacan’s structure as a result of the law’s address – we can no longer consider this objet petit a as a signifier of the law’s desire as justice. What, then, does this a come to signify in rights discourse that functions in this way?

My answer is that it signifies what Lacan calls the object of anxiety. For Lacan, the object of anxiety is produced when desire as lack becomes ‘filled out’, when something appears in the place where there should be nothing. Costas Douzinas has written that today rights are being discursively deployed by Power in exactly this way, in other words, as objects that are produced in the place of lack. Now, Mladen Dolar has written that the Lacanian account of anxiety ‘differs sharply from other theories: it is not produced by a lack or a loss or an incertitude; it is not the anxiety of losing something (the firm support, one’s bearings, etc.)’. Instead, anxiety for Lacan exists in what Dolar calls ‘the lack of the support of the lack’. ‘Anxiety’, writes Dolar, is ‘gaining something too much, a too-close presence of the object. What one loses with anxiety is precisely the loss – the loss that made it possible to deal with a coherent reality.’

Anxiety, thus, is a question of over-proximity and I claim that the postcolonial Master’s discourse of constitutional rights, especially in the South African postcolony, has produced rights in such a way that they function less to produce the object-cause of the Law’s desire and more as the production of the object of anxiety. For what Karin van Marle has called ‘the spectacle of post-apartheid constitutionalism’, has produced rights as if they can fill the lack, as if they are justice all by themselves. I am not saying that all anxiety in the postcolony is attributable to this operation of the Master’s discourse, but rather that a fair deal of the anxiety which underlies protest action in South Africa has been produced by this deployment of rights. The overall trend in South Africa has been that rights have functioned as a discourse of what constitutional theorist, Lourens du Plessis, once called an ‘overarching, all-encompassing super law’, a ‘written law-text’ that professes to ‘constitute the moral high ground of justice all by itself’. It is significant that Du Plessis, along with Van Marle and others, have also repeatedly over the years warned against this – what they call the ‘monumental’ – discourse of the Constitution, the discourse in which rights are celebrated as one of the fundamental features of the ideology of The End of History.

Douzinas calls this ‘the truthful lie’ of rights discourse and reminds us that ‘no Bill of Rights can complete the struggle for a just society’. But this, of course, does not prevent Power from cynically setting upon a rights discourse in a way that commands the production of an impression that the struggle is, in fact, over; in other words, that the enunciation of rights perfectly corresponds to the enunciated content of those rights. I must emphasize here that I am describing the way in which liberal authority has, by and large, used rights discourse and that the subject’s relationship with liberal authority’s version of the Master’s discourse of rights is one increasingly characterized by anxiety and, if you will, anxiety hysteria.

I feel compelled, at this stage, to clarify that I am not saying that we should never have had a Constitution or a Bill of Rights in South Africa – that, I think, is something beyond question. But it is the way in which authority has deployed rights discourse in relation to the post-apartheid subject that I think is the problem.

If it is true that rights are being used in this way by post-apartheid Power, then the question arises as to the fate of all the anxiety that is being produced. What influence does it have in public discourse, which is a different way of asking how it is displaced on the public stage? I think that the version of the Master’s discourse that I have been describing is rapidly loosing its grip on the South African unconscious and that the discourse of a figure or a subjectivity that is prominently on the public stage in the postcolony, is resounding evidence of this. After all, the Lacanese version of the by now stock assertion that ‘South Africa is the protest capital of the world’, is that the discourse of the Hysteric is ubiquitous in South Africa, which it is. It is well known that, as Veronique Voruz writes, the Hysteric is the subject who has the power to unmask the discourse of the Master and part of my argument is that her anxiety can be displaced in a way that exposes the master signifier’s incessant attempt to cover over lack, to produce a lack of the lack. This is the case primarily because the Hysteric is ‘a subject impossible to pin down to the [master] signifier which tries to fix it, name it, assign it a place’. With reference to the way in which the Master’s discourse functions in post-apartheid South Africa, the Hysteric is the subject who escapes the totalizing imposition of the Master. In short, the Hysteric remains the subject of desire, because she remains attuned to the objet petit a as lack and thus as desire. Through her ceaseless interrogation of the Master, the Hysteric finds an Other (the Master) that lacks. But this is not to say that the Hysteric, because she is better attuned to the objet petit a as object-cause of desire, does not suffer anxiety. The point is that she is the subjectivity who is, despite her anxiety, not duped by the master’s discourse of human rights. Another way of putting this would be to say that the stake of the Hysteric’s discourse is the conversion of the object of anxiety back into the object cause of desire.

To relate this account of the Hysteric’s discourse back to the discourse of protest, Law and the legal subject in the postcolony, we need to take account of how the hysteric exposes the master’s discourse. Richard Pithouse points to the lack of/in the discourse of ‘liberal authority’ through a series of associations. He writes: ‘liberalism, both in theory and practice, was a constitutive ideological and political force driving the colonial project – including dispossession, enslavement and genocide. This body of scholarship notes the active commitment to racist ideas, and to the colonial project, in the work of liberal thinkers such as John Locke, Mill and others. It also notes the centrality of liberal forms of power to modern forms of colonialism and imperialism.’

Pithouse’s relentlessly exposes the shortcomings of liberal authority: in short, it terminally lacks the anti-; post-; or decoloniality that a postcolonial legal order would necessarily require, it terminally lacks what this order desires. But, at the same time as the Hysteric points relentlessly to this lack in the Master’s discourse, she refuses to give up on the master signifier (here as Law/rights discourse). Nowhere is this aspect of the Hysteric’s discourse more visible than in the student protests of the last few years. In the 2015 iteration of the #FeesMustFall protests, students repeatedly and vociferously agitated for a prioritization by the current (liberal authoritarian) government, of funding for Higher Education, relying on their right to education as enshrined in the Constitution. When, in response to the groundswell, the government deployed the police, arrested student protesters and fired tear gas and stun grenades to disperse the crowds, the students answered by appealing, once more, to their constitutional right to protest and assembly.

Yet, at the same time, a signature feature of the student protest discourse remains its vehement criticism of the Constitution which it describes as a ‘colonial’ and ‘imperial’ code, produced as a compromise that facilitated no more than a transfer of power from the apartheid to the post-apartheid regime, a code that, in other words, left the apartheid society fully intact . What we see here is a textbook illustration of Lacan’s statement that what the Hysteric is looking for is a Master over whom she can reign, which is also why Lacan coldly told the students of ’68 that what they were looking for was a Master and that they would ‘get one’.

And in this way we end up in the current discursive position in the postcolony of a seemingly endless oscillation between the discourse of the Hysteric and the discourse of the Master: the more the Master’s discourse of the Constitution and its Bill of Rights produces itself as the one and only truth, as the One to rule them all, the more the Hysteric’s discourse in the form of protest, finds its lack, demands that it produces knowledge about what the Other would with her. These latter forms of protest are often articulated as the Constitution and the Bill of Rights’ inability to bring about ‘decolonisation’, redistribute ‘the land’ or alleviate inequality and poverty in general. Such a discourse is, of course, entirely necessary in the postcolony in terms of holding power and law accountable/attuned to its lack, something which it has done with increasing efficacy in recent years.

But what of the role of anxiety as the lack of the support of the lack in the discourse of the Hysteric? If it is true that anxiety hysteria is pervasive in the postcolony, then how does the anxiety affect the discourse of the Hysteric? My answer to this question is that anxiety impacts on the action that the Hysteric takes as part of her discourse. There are two distinct possibilities here – as Harari writes: ‘two possible transformations of anxiety, two destinies for the subject in anxiety’. They are acting out or passage a` l’acte. First, if anxiety is always a signal of the imminent deconstitution of the subject, the ‘irruption of an overwhelming part of the real’, then anxiety can, as Bruno Bosteels writes, be ‘an infallible guide for a possible new truth’ (Bosteels 2006). This is the productive power of anxiety, the way in which it can function to reinforce the Hysteric’s discourse as a discourse that exposes the lacks, inconsistencies and ambiguities in the Master. This outcome of the discourse of the Hysteric affected by anxiety, is, however, only possible as long as the subject remains in the field of what Lacan called the Other (the network of socio-symbolic authority into which we are inserted from the moment of birth), as long as the Hysteric is still appealing to and addressing the Other. This is the displacement of anxiety in acting out, which, like the epithet ‘hysteric’, is a technical term for Lacan and in no way carries the sense of a pejorative admonition which is how it has so often been used by those in Power in South Africa. ‘The demonstrative accent in any acting out is’, writes Lacan, ‘its orientation towards the Other’. We can conclude, then, that acting out remains within the discourse of the Hysteric as fundamentally an address to the Other. As Žižek writes: acting out is an attempt to break through a symbolic deadlock. ‘Through this act we attempt to honor a certain debt, to wipe out a certain guilt, to embody a certain reproach to the Other, etc.’

The many campaigns of acting out over recent years in South Africa, through protest, together consolidated what I think of as a recuperative Hysteric’s discourse, articulated first as the #MustFall campaigns and later on as ‘decolonisation’. This Hysteric’s discourse has had a significant impact on the Master’s ability to maintain their discourse as the full and whole sufficiency of liberal authority. These signifiers are, therefore, not coincidental – they articulate a powerful critique of the Master’s discourse as a discourse of ‘colonial’ liberal authority that ‘must fall’. These forms of acting out not only unmasked the deceitful and artificial operation of the Master in the postcolony—they also constituted a new truth of the postcolonial subject as a subject of desire. In other words, one can say that they radically re-introduced the discourse of ‘justice’ (and thus of lack) in the (legal) discourse of ‘constitutionalism’ – they called, as Lacan said in 1968, the law into question as a symptom. This is not to say that I am entirely in agreement with this discourse of the anxious Hysteric, but rather to acknowledge its profound victories.

There have been, and will continue to be, instances where the discourse of the anxious Hysteric does not have this effect. These are instances where protest is accompanied by so-called ‘senseless’, violent and even violently suicidal gestures, moments where the resolution of anxiety amounts to ‘the moment when the real kills, rather than divides, the symbolic’ to put it in Bruno Bosteels’ words. This moment designates the passage à l’acte. Lacan’s imagistic language is instructive here: passage à l’acte, he writes, designates the moment when the subject ‘rushes and topples off the stage, out of the scene’. As Žižek explains: ‘The ‘‘passage to act’’ entails [… ] an exit from the symbolic network, a dissolution of the social bond’.

Of these moments there have also been vivid examples in the postcolony. In service delivery protest, they take the form of looting and arson, often of the affected community’s already severely constrained resources such as schools. In the student protests, they have taken the form of what Pithouse describes as a ‘turn to burning’: setting alight libraries, residences, computer laboratories, transport buses and cars, a lecture hall, works of art (including of UCT’s first black graduate in Fine Arts) and administrative offices. The 2016 iteration of the #FeesMustFall movement saw a heightened prominence of this ‘narcissistic, suicidal aggression’, as Lacan calls it. As Pithouse writes: ‘The turn to burning is not a sign of a productive new militancy. On the contrary it is symptomatic of the current weakness of the movement’.

In these acts, anxiety radically derails the discourse of the Hysteric and the paradoxical upshot is that the Master’s discourse is not unmasked or exposed. Yet, as Žižek has argued many times in recent years when commenting on riots in Europe, the passage à l’acte is by no means simply meaningless, because, even as an act that entails an exit from the symbolic network, it is still in the moment of its performance, an act in relation to the Symbolic. As Žižek writes: ‘[it] tells us a great deal about our ideological political predicament and about the kind of society we inhabit, a society which celebrates choice but in which the only available alternative to enforced democratic consensus is passage à l’acte’. In South Africa, this ideological political predicament is at a highly intense stage, since the majority of the population did not vote in the recent local government elections, thus indicating that the enforced democratic consensus is becoming severely undone, while at the same time instances of passage à l’acte are proliferating. As I write, the country has been plunged into darkness as a result of sabotage at several of the national electricity supplier’s power plants.

I also want to say that I think one should not be too hasty when designating what looks like the passage à l’acte as in fact that. In other words, I want to insist on the possibility and indeed, sometimes, at least, on the necessity of deconstructing the distinction between acting out and passage à l’acte. The paradigmatic example here is Chumani Maxwele’s famous act of emptying a human toilet on the Rhodes statue. Liberal authoritarians were quick to condemn the action as an equivalent of passage à l’acte literally referring to it as ‘barbaric’. But as it turns out, this act was not only firmly and ingenuously located in a socio-symbolic network of contemporary protest action in South Africa that involved what Steven Robbins has called the politics of shit – it was also the form of acting out that triggered a veritable re-distribution of the sensible in South African Higher Education.

The discursive result, I think, at this moment in the postcolony, is something akin to Lacan’s description of the relationship between the Hysteric and the Master: ‘she reigns and he does not govern’. There are many ways in which one can read this phrase. Suffice it to say that there are very good reasons, positive and negative, why South Africa is the protest capital of the world; a country, in other words, where the Hysteric, in a certain sense, does not so much swing the scepter as erect the barricades on a daily basis. And as for the ‘he does not govern’, one only has to glance at news reports from South Africa on any day of the week, month, year or last few years in order to have knowledge of the ways in, and extent to which, ‘he does not govern’. The irony, of course, being that the very deployment of the Master’s discourse as a discourse of fulfilled justice functions to cover over the lacks in and of this Master.

How long such a situation of reigning and not governing can be sustained, is, of course, anybody’s guess. But I seriously doubt that it is a situation from which we can bring about the kind of discursive transformations, the kind of reconfigurations of the social bond, that are so urgently necessary in South Africa. Those transformations, I believe, would depend for their emergence on the proliferation of another kind of discourse, one that lacks radically in the postcolony and one that I can only gesture at here by concluding with a fragment from Lacan’s Seminar XVII: ‘perhaps it’s from the analyst’s discourse that there can emerge another style of master signifier’. ‘Whether it is another style or not’, adds Lacan, ‘it is not in two days’ time that we will learn what it is’. I will, therefore, defer a consideration of the analyst’s discourse to an occasion to come.

Jaco Barnard-Naudé is Professor of Jurisprudence at the University of Cape Town.

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