I look specifically at several ways Malory represents the role of what cannot be seen—the invisible, the hidden, the suspected, and the imagined—in the relation between evidence of crime and criminal guilt; at certain fifteenth-century cases of treason against the king; and at certain strategies used by President Bush and his administration to address terrorism. In both medieval and modern approaches to the relation between what cannot be seen, on the one hand, and proof of crime and/or criminal guilt, on the other, law functions as a tactic that justifies and conceals its own suspension for the sake of the future, legitimating a form of sovereignty and power that stands outside of the law that ostensibly creates it. (p.1)I had initially meant to make a joke about Stockwell's medieval personal theology and his theories about crime, but I subsequently got a bit of a chill over the apparent logic behind Day's seeming fumble over "unreported crime." Harris later continues,
These examples reveal that the prosecution of an imagined act of treason ascribes to the law access to an invisible arena: the mind or imagination of the king’s subjects. It attributes an omniscience or precognition to the law that enables those who enforce it to reveal what is hidden and to predict, like the pre-crime unit in Philip Dick’s “The Minority Report,” the consequences—the future crimes—that could follow from such thoughts if they go undetected. For these judgments establish a cause and effect sequence that imagines the future death of the king and then inserts that future event into the present as proof that a crime has been committed. (p.4)Day's unreported crimes are invisible crimes, but this does not mean they do not exist in his mind or his master's. If they aren't reflected in the statistics the statistics are wrong and he will find them. Of course, this allows them to imagine the criminals to be whomever they want them to be. We saw this logic in practice in Toronto. Invisible laws, invisible crimes. Real people, in real cages, with real beatings. Harris continues,
This judicial precognition of treason had several effects. For instance, it placed an insurmountable burden on the accused. For how does one prove that one has not thought a certain thought or how does one prove that one will or will not do or intend to do a certain deed in the future. Unable to challenge such predictions, the accused in an important sense becomes invisible, disappearing as he stands before the law. Further, once it becomes legal to imprison and/or convict a person for something the person has said, has been reported to have said, has imagined, or has been reported to have imagined, accusations of treason cannot be held in check...Effectively dispensing with any rules of evidence, this pseudo-legal process provided a means for a king and his jurists to address in an arbitrary and personal manner any perceived threat to the king’s power that could be imagined. (p.4)And in consequence, the de facto abolishment of habeas corpus, a simple and ancient practice brought about to counter fantasies of invisible crimes by mad kings.
The writ of habeas corpus is central to these constitutional protections. And its history, too, goes back to the medieval period. Early in the thirteenth century, a writ of habeas corpus operated as summons for the accused to be “physically brought before a court”; the defendant’s presence was necessary before a court would decide the case...(p.5)It's something that most of the world has apparently moved beyond the Bush years, but Canada has placed the stick to reverse and jammed it there with a spike. The problem with the Harper government isn't so much what they're actually doing in the present, although there's plenty of fodder there to be sure - much of it comical. But the infrastructure they're installing in the ship of state - torture, knee-capping the civil service, end-running the Opposition, suspending parliament, defying parliament, dressing their ministers in military uniform, invisible crimes. We've seen things...that 10 years ago, we'd never have imagined occuring in this country. Sure it takes a comedic fumbling veneer at times, but they are crossing lines that we'd never in the past imagine being crossed. Harris's conclusion illustrates the risk this entails,
At the end of Malory’s “Knight of the Two Swords,” two brothers, Balin and Balan, kill each other because they are unable to recognize each other. So the tale moves from a capacity to identify an invisible knight who commits murder to an inability to recognize those who are not enemies. What processes lead us to lose what is most dear to us in the effort to protect ourselves from suffering that very loss? Christopher Rigby’s comment on the relation between Arthur Miller’s The Crucible, the Salem witch trials, and the McCarthy era suggests an answer: “The question is not the reality of witches but the power of authority to define the nature of the real, and the desire, on the part of individuals and the state, to identify those whose purging will relieve a sense of anxiety and guilt”.(p.7)We can talk about their minority status, but they are still in office, laying invisible foundations.