Article: “Before the Law: Encounters at the borderline,” by Elena Loizidou in New Critical Legal Thinking.

I found this article extremely thought provoking with regards to what it means to be extitutional, and how to create exclosures. The article discusses 3 different narrative tales (”parables“) that offer examples for what it means to be at the “border” between the law and a place outside of the law— or in extitutional terms, at the border between the institution and extitution of law (which also raises the question for me “what is extitutional law?”)

The two main ideas that stood out are Giorgio #Agamben’s concept of the [[State the Exception]] (need to read [[book/homo sacer]]!), and the enumeration of the 3 different modalities of being “before the law” while subverting it.

Before the Law

Loizidou offers the tools of cheekiness, friendliness, and “persistent, courageous and even naive questions” as methods for living life “parallel with the law” so that we may “not necessarily capture life completely” in the law. They say, “we experience at the border the transformation of an apparatus into a man”– referring to Foucault’s concept of the #dispositif (aka apparatus), which suggests the important role of the #margins in extitutionalization. Here we explore the margins of law, but more generally it occurs to me that every margin is a place for extitutionalization. in fact we conceptualize the institution as an enclosure, a container, with space inside. when we talk about the enclosure, we refer to a de-territorialization, a lower density of institutional ordering where extitutional dynamics can have more room— more space. but what if it’s the margins themselves that are part of the ordering logic of [[extitutions]]?

I also love this notion of “friendliness”:


  1. not dispensed without forethought
  2. does not consist of small things casually but of great things as though they were the smallest
  3. does not abolish the distance between human beings but brings that distance to life.

Friendliness is compared to the metaphor of water rounding the edges of a hard rock— taking the hardness out of life. Loizidou says, “friendliness manifests itself in a series of gestures that do not tie either the one that gives or the one that receives to any formality.” Is this meant to position friendliness as distinct (perhaps even less than, in a territorialization sense) a more institutional relationship? Is this evocative of “weak ties” in social network theory— and perhaps therefore pointing to some of the mechanics underlying the strong “gravitational” attraction of extitutional behavior, which proceed with a lot of “friendliness” or low-density social bonds, and which as a result can constantly change and evolve— but emergently create something with a very strong pull. Indeed I certainly notice that in my extitutional communities I can spend some very intense time with people but then go many months or even years without close contact. it’s a bit of a paradox: there’s a kind of universal closeness that comes with shared extitutional experience, which perhaps relies on a friendliness, but does that in turn make it into something more than friendship?

In terms of cheekiness, the author suggests there is an “anarchic moment” where a subject “playfully subjects itself to the law, and simultaneously defies it through giving back to its command more than it has asked, showing to it that it is not the only source of producing effects.” that’s a beautiful description that constitutes a symmetry and a decentralization of power. I love the idea of this as a technique. I actually find the notions of parody and hyperbole more evocative than “cheekiness.” Full quote:

“The parodical or hyperbolic effects of disobedience convey in its doing or action or playfulness (without denying that it is a product of power) a sociality that does not want to assume or have a stake in the law or assume the power that brings it into being, but rather to experiment in a different organisation of life, one that undoes our understanding of centralist power or authority.”

What makes it disobedient? It is outside. Outside what is acceptable and therefore outside the institution. But what makes it simultaneously acceptable or legible as opposed to dismissed or punished? How is it transformed into what appears to be very powerful tool for extitutionality? Perhaps it’s that it’s JUST at the #margins. So, this notion of #margins again.

By inhabiting a name— becoming an “interpellated” subject (cf. Althusser)— we can weaponize the name-as-category by exaggerating it, showing that the law (or institutions?) are “not founded upon anything more than ritual of the performance of an authority” (authority itself being an exaggerated category, perhaps the original category). Clearly the role of actual theatre and performance here is very interesting as a tool. And informally the way we incorporate play into our lives is also more of a lifestyle mechanism.

Agamben’s state of exception and extitutional dynamics

“Law captures ‘life’ through formality; through a series of questions of authorisation.” This is the “juridification” of life, which proceeds either by capturing (enclosing!) a behaviour within the law, or “excluding” it. “In this second instance ‘life’ is banned or abandoned, but the very abandonment takes place through the operation of formal laws.” This is basically a definition of #exclosure. The actor is “banned” or “abandoned,” evoking Agamben’s ‘State of Exception,’ where law appropriates life “by banning it or excluding it.” There is a “virtual state of emergency” that sustains the law and “Agamben, through Kafka’s ‘Before the Law’, meditates on how we may undo or free ‘life’ from the formalities of law, undoing it from law’s codes, formulaic gestures, authority and, moreover, bringing about a ‘real’ state of exception.” that is, can we use the state of exception as portals to a more persistent state that we actually choose- that we craft. Doing this— pushing the limits of the law and therefore of the law’s authority— requires we risk abandonment - that we risk being shut out from the law. When the door is truly shut, the Agamben argues that one can finally live one’s (real) life. But this author asks another question even more relevant for our extitutional work: “To what extent and how we can undo the capturing of ‘life’ from the claws of law without necessarily having to close its door of law forever, but rather in recognition that the door of law may not be locked forever- it may remain constantly ajar, our companion and a prop?” (emphasis mine). None other than scaffolding!

Fairy Tales

This article’s use of fairy tales made me wonder if we could use fairy tales as a tool to study archetypal “primitives” of human interaction that come together with recognizable (atomic?) institutional AND extitutional behaviour that are always correlated. to begin to excavate these. i realize that I have a kind of intuition that these archetypes sort of “lock” into place, creating standing structures that cut across institutional and extitutional dynamics— creating perhaps scaffolding or a portal— or in fact, both.