Rogue Pakeha.

Simmons, Laurence

How not to speak of brothers? Jacques Derrida, Rogues: Two Esssays on Reason.

The tradition of the oppressed teaches us that the 'state of emergency' in which we live is not the exception but the rule, Walter Benjamin, 'On the Concept of History'.

Ahmed

In a state of some desperation several years ago, as I sat down to begin to write what has become this article, I was informed on Radio New Zealand News that Ahmed Zaoui, the Algerian refugee academic who has been granted legal refugee status in New Zealand, had spent five hundred days in solitary confinement in Paremoremo maximum security prison outside Auckland without receiving a fair judicial hearing. He was then to go on to spend a further two months detained in the cells of Auckland Central Remand Prison at Mt Eden, only to be released on bail on 9 December 2004 into the care of Catholic Dominican Friars on the condition that he observe a curfew between 10pm and 6am and report twice a week to the Auckland Central Police Station. As you are reading these words almost three years later, Ahmed Zaoui is still incarcerated there. I say 'incarcerated' because this bail is still a form of detention and it is tenuous. He does not know if or when he might be returned to prison or be taken to the airport in the middle of the night and deported. It is impossible for you, or for I, to comprehend the fear, the frustration, the anguish and, despite his many supporters, the extreme loneliness of Ahmed's isolation.

The 'Zaoui case', as it has come to be known, is the cause of my profound shame as a New Zealander. A shame so deep that I have asked myself if I should leave the country for which on so many different levels--emotional, historical, topographical even--I feel such a profound attachment. Ahmed Zaoui too literally--too close for my comfort--evokes the Italian philosopher Giorgio Agamben's notion of homo sacer, a man reduced to bare life no longer covered by any legal or civil rights. Agamben argues that a subject whose rights of citizenship have been removed enters a zone of suspension, neither living, in the sense that a political animal lives, in the community and bound by law, nor dead and, therefore, outside human intercourse and the rule of law that constitutes the community of citizens. Agamben writes that, since it underwrites the actual political arrangements in which we live today, we are all potentially exposed to the condition of bare life; it is the contingency into which our political arrangements might dissolve.

You and I, and Ahmed, stand before the law. I want to ask what does standing before the law mean in Aotearoa New Zealand at the beginning of the 21st century? (1)

State of Exception

Giorgio Agamben has argued that a state of exception has become 'the dominant paradigm of government in contemporary politics'. (2) He notes the force of emergency powers that has gripped the world since the events of September 11 and identifies the military order issued by George W. Bush on 13 November 2001 as one that opens a gap between politics and the law. This is the 'order' which subjects citizens and non-citizens suspected of terrorist activities to indefinite detention. The rights to counsel, means of appeal and repatriation stipulated by the Geneva Convention have not been granted to any of the detainees in Guantanamo Bay. On 21 March 2002, the United States Department of Defense issued further guidelines for Guantanamo under which some of the prisoners would be tried by military tribunals, but should these tribunals acquit someone of a crime the Department of Defense made clear that acquittal would not necessarily end detention. It also made it clear that those tried in this venue would have no rights of appeal to US civil courts, maintaining that a number of detainees would not be given trials at all, but rather would be detained indefinitely. The prisoners at Guantanamo are not even called 'prisoners' by the US Administration, for to call them that would be to acknowledge the internationally recognized rights pertaining to the treatment of prisoners. They are, instead, 'detainees', those held in waiting, those for whom there may be a waiting without end. It is important to ask under what conditions some human lives cease to become eligible for basic, if not universal, human rights. By detaining some prisoners indefinitely, the state appropriates for itself a sovereign power that is defined over and against existing civil, military and international legal frameworks. In the very act by which state sovereignty suspends law, or warps the law to its own uses, it expands its own domain and builds on the means by which validation of its own power can take place.

At this distance in Aotearoa New Zealand we may simply feel that these decisions and guidelines are merely symptomatic of a conservative, right-wing administration in the United States from which our own government has distanced itself; that they somehow refer exclusively to Guantanamo Bay. But it is crucial that we understand that this 'state of exception' has itself no exceptions. John Howard, closer to home in Australia, a nation made from immigrants, opened his refurbished Lager for detained refugees at Woomera in 1999, (3) a site which the then Australian Minister of Immigration and later Attorney-General, Phillip Ruddock, notoriously informed us was not to be considered a 'holiday camp'. (Since when, we might ask, have corrugated iron sheds in a dustbowl, sewn-up eyelids and lips, traumatized children, distraught adults and attempted suicides been the stuff of vacation high-jinks?) Even more telling was the Howard government's subsequent decision to excise over 2000 islands from its sovereign territory in order to stop 'illegal' landings. (4) These islands are now paradoxically inside and outside Australia's borders and this 'exceptionalism' has the borders retreating in front of those who wish to cross them. What happens, we might ask, when the 'illegals' begin to hit the cities of Darwin and Perth? But all this, it might be countered again, is simply Australian business. New Zealanders regularly denounce, with a certain smugness it has to be admitted, Australia's state of Aboriginal (non)relations and, after all, 'we did take some of those Tampa refugees ...'. Nevertheless, I firmly believe that the state of exception is no longer an historically or geographically limited problem and that it has also become the rule here in Aotearoa New Zealand.

For one reason or another, the existence of such spaces devoid of law seems so essential to the legal order that it must make every possible effort to assure some form of relation with the former. It is as if the law, in order to guarantee its own functioning, must necessarily entertain a relation to anomie. Contemporary forms of sovereignty exist in a structurally inverse relation to the rule of law, emerging precisely at that moment when the rule of law is suspended and withdrawn. Agamben insists, 'what is excluded in the exception maintains itself in relation to the rule in the form of the rule's suspension. The rule applies to the exception in no longer applying, in withdrawing from it'. (5) 'What is at issue in the sovereign exception,' he maintains, 'is not so much the control or neutralization of an excess as the creation and definition of the very space in which the juridico-political can have validity'. (6) I want to explore briefly, and it can only be briefly here, one local example: the recent legislation concerning the seabed and foreshore. The law of 18 November 2004, which gave ownership of the seabed and foreshore to the state, neutralized the Treaty of Waitangi that gave Maori tribes 'full exclusive and undisturbed possession of their Lands and Estates, Forests and Fisheries and other properties which they may collectively or individually possess', (7) a quasi-legal article which many interpret as including the foreshore and seabed, a view that had been upheld by the Court of Appeal, which found that no government legislation had ever 'extinguished customary rights'. (8) The United Nations Committee on the Elimination of Racial Discrimination, after being asked by the South Island tribe Ngai Tahu to consider the legislation, issued a report on 12 March 2005 stating that the foreshore and seabed legislation discriminates against Maori by extinguishing the possibility of establishing Maori customary title over the foreshore and seabed, and by not providing an effective means of redress. (9)

The act by which the state annuls its own law has to be understood as an operation of sovereign power or, rather, the operation by which a lawless sovereign power comes into being, or indeed re-emerges in a new form. (10) The state produces through the act of withdrawal a law that is no law, a court that is no court, a process that is no process. Our government has become instrumentalized, deployed by tactics of power that in the end it does not control, but this does not stop it from using power to reanimate its sovereignty. The legislation on the foreshore and seabed, as was clear to many at the time, was an aporetic formulation: if political entities form an order, can that order be a sovereign order? However, if the order is sovereign, then the political entities that form it are not. There can be no sharing of sovereignty. At the same time, if the political entities that constitute a given order of sovereignty are not themselves sovereign, then those political entities must be non-existent. They are simply part of another order, and subordinate to it. (11)

Rogue State

The term etat voyou appeared in French as the translation of what the US administration has been denouncing for several decades under the name of 'rogue state', that is, a state that respects neither its obligations as a state before the law of the world community nor the requirements of international law: the war of strategy directed against the 'axis of evil' and so-called international terrorism. Derrida's engagement with the 'rogues' was motivated by the use of that term in the official proclamations of US diplomacy and geopolitics after the demise of the Cold War. His text focuses on the question of the existence of so-called 'rogue states' and the conditions of possibility for their existence. Who, he questions, has the right and the opportunity to identify certain states as rogue states and then to bully them with measures that include military force, especially when these states have not yet been guilty of a prior violation of International Law, and when the propensity for such an infringement in the (near) future can only be presupposed? The designation of states as outside the law leads to the paradoxical outcome that those other states that feel summoned to combat--or that let themselves be formally empowered to combat (for example, by the UN Security Council)--on their part assert a 'sovereign' right to determine measures, even if these undertakings violate established law. In the 'exceptional case', one has to be willing to contravene law in order to restore it. Thus the state strong enough to define and combat rogue states must be a rogue state itself, inasmuch as it claims the 'sovereign' right to depart from the law under particular circumstances (that is, for a certain period of time that seems to be propitious to its cause), to suspend the law or to rescind it. The rhetoric of rogue states proposes that it is always only a few 'bad states' that violate law and order; but the fact is, says Derrida: 'There are only rogue states, in potentia, or in actu. The state itself is roguish. There are always more rogue states than one thinks'. (12) The moment one is committed to combat rogue states through a declared strategy of foreign policy, one finds that the term 'rogue state' has already 'come up against its limits', that its time appears already used up. This is because it promises to identify and make visible a threat deriving from uncontainable and widespread weapons of mass destruction, whereas the dynamics of their dissemination and, thus, the failure of all those efforts to restrict atomic privilege to a limited 'club' of hegemonic industrial states, has long been evident to all. The preliminary result of the Iraq War has shown that these weapons (of mass destruction) are never to be found on the territory of the state against which one declares war.

Derrida, in a characteristic sleight of etymology, evokes a speculation that derives 'voyou' (rogue) from the French term for werewolf, 'loup-garou'. This speculation is 'interesting', even if it has not met with much response, he notes. (13) The status of the werewolf revolves around the concept of the ban. The werewolf is the one banned from the community by sovereign decree, existing on the border between man and beast. He is not 'discharged' into banishment; in contrast, the act of his (symbolic) banishment is designed to increase the image of his presumptive threat. As just a wolf he would have been expelled from the human community once and for all, as a werewolf, however, he still poses a virulent danger to the very community that had excluded him. Derrida thus joins with some considerations of Giorgio Agamben who, as we have seen, has also proposed a theory of sovereignty that defines the sovereign act as the act of a systematic creation of a state hors la loi (outside the law), of a deliberate un-making of peace. For Agamben also, one of homo sacer's first instantiations is the werewolf: neither beast nor man, dwelling within but without belonging to either; the werewolf is an outlaw that can be killed without the executioner facing any legal sanctions. (14) Banned and excluded from the city, the werewolf is forced to survive in the forest. This uncivilized state does, however, not exist prior to civilization. The outlaw, and the forest, is established through the ban, through a sovereign act creating both civilization and the state of nature. (15) It is this fact that allows us to reformulate the relationship between the forest and the city, between nature and civilization. In political theory the obvious point of reference here is Hobbes. Agamben writes:

 We have seen that the state of nature is not a real epoch
 chronologically prior to the foundation of the City but a principle
 internal to the City, which appears at the moment the City is
 considered tanquam dissoluta, 'as if it were dissolved' (in this
 sense, therefore, the state of nature is something like a state of
 exception). Accordingly, when Hobbes founds sovereignty by means of
 a reference to the state in which 'man is a wolf to men', homo
 hominis lupus ... at issue is not simply fera bestia and natural
 life but rather a zone of indistinction between the human and the
 animal, a werewolf, a man who is transformed into a wolf and a wolf
 who is transformed into a man--in other words, a bandit, a homo
 sacer. Far from being a pre-juridical condition that is indifferent
 to the law of the city, the Hobbesian state of nature is the
 exception and the threshold that constitutes and dwells within it.
 (16)

In his book Rogues, Derrida presents part of one of his final Seminars in which he pursued the study of the sovereignty of the nation-state in its onto-theologico-politico foundations and in which he tried to come up with 'a genealogical theory of the wolf (lycos), of all the figures of the wolf and all werewolves in the problematic of sovereignty'. (17) Derrida's reflections on sovereignty were inflected toward the important questions of animal life (that of man as 'political animal', as Aristotle declared, and that of 'beasts') and of the treatment, the subjugation of 'beast' by 'man'. His seminar questioned the literary or rhetorical history of forms and genres (figures, tropes, metonymies, metaphors, allegories, fables, plays etc.) that propose 'animal representations' of the political of which Hobbes' Leviathan or La Fontaine's Fables are only two examples out of thousands. And, referring often to the contemporary situation and to the problems of globalization, which affect the logic of the sovereignty of nation-states, Derrida discussed the question of rogue states and of their leaders, who are often compared to beasts (latterly Saddam Hussein and Robert Mugabe) in the political rhetoric of the most powerful states.

One of the texts on which this seminar focused was La Fontaine's famous fable of The Wolf and the Lamb, the introductory sentence of which Derrida uses as an epigraph for Rogues:

 La raison du plus fort est toujours la meilleure Nous l'allons
 montrer tout a l'heure.

 (The strong are always the best at proving they're right. Witness
 the case we're now going to cite.) (18)

That--to translate La Fontaine more literally--'the right of the stronger has always been the best right', as the first line of the fable claims, is the open, even cynical acknowledgment of how sovereign power speaks in the name of the law and simultaneously violates it. Derrida, in his subsequent discussion of the fable, finds in this formula a clear statement regarding sovereignty, since it unambiguously states the paradox that the right of sovereignty is in fact found in the power to break the law: sovereign or criminal, sovereign or rogue. Yet, Derrida writes: 'The logic of the La Fontaine fable ... has no place for the rogue' (19)--either from the perspective of the fabulist or from the perspective of the wolf (not to speak of that of the lamb, who takes up a position of pure innocence):

 The wolf is not, in principle, a voyou, since he represents the
 sovereign force that gives law and gives itself the right [le
 droit] to ..., who reasons about and declares what is right [donne
 raison], who gives reasons for why he is right [se donne raison],
 and who wins out over [a raison de] the reasons of the lamb. (20)

Derrida's conclusion is quite enigmatic, since the fable's whole strategy seems to set out to present the wolf as a rogue, and since the wolf speaks from the position of the law but would never allow it to be turned against himself. And, of course, since he speaks and acts human he is a sort of werewolf. The law is the wolf's weapon, as he conducts a mock trial against the lamb, playing the roles of prosecutor, judge and executioner all at once. The startling fact that the wolf does not devour the lamb immediately has often been remarked upon in discussions of this fable. He would surely do so if he was nothing but a wolf, whereas between the first meeting of wolf and lamb and the final devouring of the lamb a juridical interlude occurs, a 'trial', whose opening address is given, as a matter of course, by the wolf in his role as prosecutor. La Fontaine is thus at pains to stress that a lawful and contractual connection between wolf and lamb exists, even if it becomes obvious that the wolf is systematically engaged in violating the law. The sovereign deliberates, before he devours. On the other hand, it remains curious that the lamb, who inevitably will become his victim, does not identify the wolf as its 'natural enemy' (in that case it would try to escape), but instead recognizes it as a form of authority, for the lamb apologetically stammers: 'your majesty!' We might say that the recognition of the wolf as master is the lamb's fundamental mistake, and in this lies the irony of the fable. The wolf's 'cruelty', then, does not consist in his drive to give the lamb a quick once over and to consume it, but in the undaunted manner with which he dismisses the not only legitimate, but also irrefutable objections put forward by the lamb. The wolf's accusations do not only contradict the facts, they prove impossible. In the recent tussle over the foreshore and seabed in Aotearoa New Zealand, read New Zealand Labour Government for Wolf and concerned tangata whenua (first people of the land) for Lamb.

Rogue Pakeha

As we have seen, the word voyou is already a voyou (rogue) of language. As Derrida writes:

 The noun voyou can become an attributer or an adjective--always a
 very qualifying adjective, most often pejorative and accusatory. It
 is never a neutral attribute, the object of an observation. Rather,
 it casts a normative, indeed performative, evaluation, a disdainful
 or threatening insult ... It is an appellation that looks already
 like a virtual interpellation. When speaking of a voyou, one is
 calling to order; one has begun to denounce a suspect ... (21)

Let me now be a little roguish and make the word voyou 'a very qualifying adjective' in coining the expression 'Rogue Pakeha'. Let me suggest that we (present-day Pakeha in Aotearoa) take as our model those Europeans who lived as/with Maori in early New Zealand and were referred to, and referred to themselves, as 'Pakeha-Maori'. Following Alex Calder's definition, Pakeha-Maori 'is an historical term for a European, usually a trader, living as a Maori among Maori: not so much a person who has "gone native" as someone at home between cultures'. (22) This, Calder continues, is 'a border zone pakeha often dream about ... an adaptable minority [who] represent the possibility of better beginnings and quasi-indigenous styles of belonging'. (23) Trevor Bentley's recent popularizing book on the Pakeha-Maori (24) gives us a mixed taxonomy of the species: there were mokai Pakeha (pet Pakeha); taurekareka Pakeha (slave Pakeha); Pakeha toa (Pakeha who took part in wars); trader Pakeha; tohunga Pakeha (Pakeha priests); rangatira Pakeha (Pakeha chiefs). These historical figures have the names and the colourful biographies of a boy's own annual coupled with suitably shadowy backgrounds. There was Jacky Marmon of Irish convict origin for whom the Kerikeri chief Kawhitiwai built a fine house and provided five wives. He is said to have shot one of his wives for adultery and to have feasted on human flesh. John Rutherford, probably a runaway sailor convict, was wounded fighting with the warriors of the Ngapuhi chief Pomare and, acquiring a ta moko (tattoo usually of the face and buttocks), returned to London where he 'practised the trade of a pickpocket under the character of a New Zealand chief'. (25) The American Kimble Bent, who deserted the British army and survived attacks on his tribe by colonial troops, was reported to have participated in cannibal feasts and eventually became a tohunga. There was also missionary leader Thomas Kendall, who abandoned his family and became legendary chief Hongi Hika's mokai Pakeha and who was dismissed by the Reverend Samuel Marsden for gun-trading and adultery.

And then, of course, there is Frederick Maning who wrote what is perhaps New Zealand's major colonial text, Old New Zealand (1863). Edward Markham, a contemporary, called him 'a double faced sneaking Thief' (26) and this may work well for my purposes of roguery. From all accounts he initially opposed the Treaty of Waitangi but towards the end of his life, after the death of his Maori wife, he 'turned more to the European world for companionship and a career ... and his attitudes toward Maori ... shifted, and would become bitter as he became more and more estranged from his children'. (27) Three of our contemporary commentators on Maning's auto-ethnography--Simon During (1990), Alex Calder (1993 and 2003) and Stephen Turner (2002)--have all demonstrated how, in his discussion of tapu, mana, muru and whenua, these key tropes of his text fold back to envelop and capture Maning himself. (28) He becomes 'tapu'd' by the contagion of tapu in his discussion of it, frozen and unable move beyond it; the mana of his own text survives despite or through mana being a sign that acquires mana in its untranslatability; he tries to explain muru, the laws of plunder or distraint--what he calls 'the beauty of being knocked down and robbed' (29)--as he proceeds to 'plunder' his Maori sources; while his discussions of his own land (whenua) purchases, as Alex Calder reminds us, 'raise doubts as to the possibility of anyone ever making an authentic purchase of land in these circumstances'. (30) We might also, to use Maning's own words, 'call back some shadows from the past' (31) to help understand the connections between this incompatibility 'between whenua and property' (32) and the harsh realities of the foreshore and seabed in our own time. In another text, History of the War in the North, Maning concludes: 'The only safe maxim I can give on native tenure, after all my study, is as follows:--Every native who is in actual possession of land, must be held to have a good title till some one shows a better, by kicking him off the premises'. (33) Concerned Maori, those who formed the Maori Party, (34) say the current Labour government has done some 'kicking off the premises'.

On the final page of his narrative Maning confesses:

 I must not trust myself to write on these matters. I get so
 confused, I feel just as if I was two different persons at the same
 time. Sometimes I find myself thinking on the Maori side, and then
 just afterwards wondering if 'we' can lick the Maori, and set the
 law upon its legs, which is the only way to do it. I therefore hope
 the reader will make allowance for any little apparent
 inconsistency in my ideas, as I really cannot help it. (35)

Despite the (deliberate?) decentring and disorientation expressed here, and the slippery self-consciousness of his text, Maning's narrative of old New Zealand is not an illustration of simple ambivalence. It is not a question of choosing sides or taking up one position in favour of another. 'I belong to both parties,' Maning is forced to admit a sentence or two later, and he really cannot 'help' the inconsistency. (36) What Maning's text is writing about, but what it also writes him into, is a sort of space and spacing that he/it constantly hedges around but is caught within. Nevertheless, while seeming confused or divided, the power of this way of thinking and of being is structured; it is the power of what Derrida calls a 'voyoucracy' (37):

 a sort of occult or marginal power, the delinquent counterpower of
 a secret society or conspiracy, the counterinstitution of a
 clandestine brotherhood that brings together outlaws and the
 wayward ... all those who represent a principle of disorder--a
 principle not of anarchic chaos but of structured disorder, so to
 speak, of plotting and conspiracy, of premeditated offensiveness or
 offenses against public order ... It is the principle of disorder
 as a sort of substitute order ... The voyoucracy already
 constitutes, even institutes, a sort of counterpower or
 countercitizenship ... we have here all the makings of a
 counterconcept of sovereignty. (38)

In the voyoucracy we find the 'outlaw', the outside of the law (hors la loi) as that which exceeds the law, that which is excluded from the law by the law, but understood in a manner more general than the location of individual or specific individuals or outlaws. Rather, it is a spatial figure, the name even of a domain or sphere located outside the law--a 'spacing', as I suggested a moment ago. (39) At stake, then, is the attempt to gather and think under the term 'voyoucracy' this 'counterconcept of sovereignty', a complex knot of continuous and discontinuous lines, the site of an insistent elaboration articulated from a series of terms and relations of exteriority to the law and in the law (exception, exteriorization of the enemy, relation of the subject to land and sea, questions of legality and legitimacy).

What I have tried to thematize here, somewhat sketchily I admit, is the way in which the position of the Pakeha-Maori is one of 'standing between' rather than being 'confused over' which side to be on (as if it were ever a simple question of joining sides anyway). (40) What marks the experience of the Pakeha-Maori is a certain unconditionality: an 'unconditional hospitality' on the part of Maori, an 'unconditionality without sovereignty' on the part of Pakeha. (41) It is therefore necessary to think together both the indissociability and the heterogeneity of Pakeha and Maori through the place, or placing, of the hyphen between them. (42) But, as the position of Maning and others suggests, many Pakeha-Maori will be neither friends nor enemies of the given order: they simply reside within an order not of their making, which is to say they are within the order, but not of it. Today it is this place, this dwelling space, the location of the 'neither-friend-nor-enemy', which might transpire to be the proper site of a new figuration of the political. (43)

Friendship

Of course, as many pragmatic historians have noted--often dismissively it has to be said (44)--it was the usefulness of these Pakeha-Maori that determined the extent of their welcome. They provided essential intermediary services such as translation, trading, arms, instruction on Pakeha fighting techniques, and insider cultural information. Indeed, many Pakeha toa (warriors) were to find themselves face to face with each other in intertribal battles. (45) But convenience was not a factor in the missionary Thomas Kendall's decision to live with the Ngapuhi and seek religious instruction from their tohunga (46); mere convenience certainly did not cause Maning to publicly oppose Governor Hobson at the signing of the Treaty of Waitangi. Many of the Europeans who became Pakeha-Maori were already outcasts from their own society--sometimes convicts brought to New South Wales or sailors press-ganged into a tough, physically constricted life at sea. Maning writes that he feels the 'curious sensation' of 'what I fancied a man must feel who has just sold himself, body and bones, to the devil' (47) and, as Alex Calder notes, he 'liked to cultivate a mystique as one who had lived beyond the pale, who knew dark things'. (48) Nevertheless, demystifying the darkness a little, at the heart of the relations between Pakeha and Maori lies a schematic of filiation--the friendship between migrant and host, Pakeha and Maori, tauiwi (non-Maori New Zealanders) and tangata whenua (people of the land)? The friendship between Maning and the Hikutu chief Kaitoke or Maning and his brother-in-law Hauraki. There has been much silence on the question of Pakeha-Maori friendship and little has been said, too, about the relationship between the outlaw and the friend.

Perhaps this is as it should be. Friendship has many similarities with what Derrida in Given Time calls the gift and the secret. (49) We normally think of a secret as in principle discoverable. It is hidden from me and from others, but someone knows the secret and could 'give it away'. For Derrida, however, just as a true gift (if there is such a thing) cannot be given in recompense for another gift and cannot in any way be repaid, so a true secret (if there is such a thing) cannot ever, by any means, be revealed. He writes: 'At the limit, the gift as gift ought not appear as gift ... It cannot be gift as gift except by not being present as gift'. (50) Friendship, like this, is the relation that escapes definition. So a true friendship protects itself by keeping silent about its truth. Derrida adds:

 Friendship does not keep silence, it is preserved by silence. From
 its first word to itself, friendship inverts itself. Hence it says,
 saying this to itself, that there are no more friends; it avows
 itself in avowing that. Friendship tells the truth and this is
 always better left unknown. (51)

Derrida's performance of Aristotle's apostrophe 'O my friends, there is no friend', which regularly interrupts his speaking of friendship throughout his book Politics of Friendship, (52) speaks to the limits of friendship where no knowledge of the friend is possible. Aristotle's statement is, Michael Naas notes, 'a performative to "friends" before the comma or virgula,' and 'a constative or claim that there is no friend after'. (53) This aporetic structure in which the performativity disrupts the concepts traditionally used to define the essence of friendship--proximity, self-identification and communication--implies paradoxically that 'the lives of friends do not intersect but in fact diverge and distance themselves from one another the closer they become to one another'. (54) The friend brings us distance and not proximity, reserve rather than openness, inactivity rather than movement, strangeness rather than familiarity, listening rather than speaking, the incomparable rather than the comparable. Friends are those who, in coming together, experience what Maurice Blanchot calls the 'infinite distance' (55) between them where true friendship is 'unshared, without reciprocity'. (56) The friend, suggests Derrida, elaborating Blanchot's discourse concerning friendship as the relation without dependence, 'is some "one" to whom one speaks (even if only to tell him or her that there is no friend) but of whom one does not speak'. (57)

Furthermore, we can hear in Aristotle's 'O my friends, there is no friend' that the western canon of friendship, based on an economy of reciprocity and equality, is already disturbed from within. Friends support one another in the struggle against common enemies, and in respect to anxieties about mortality, but the opposition between friends and enemies can be further deconstructed, as was pointed out by Nietzsche. (58) For there is, too, a certain hostility at the heart of friendship. As Derrida points out, Nietzsche's rephrasing (inversion) of the original Aristotelian text in Human, All Too Human undoes some of the placid certainties of classical notions of friendship. As Nietzsche, and subsequently Carl Schmitt, suggest, the virtuous effects of friendships made by thinkers since Aristotle tend to conceal and repress the key role played by enemies in the constitution of the ethical and the political. As is apparent in election campaigns, departmental meetings or conference debates, enemies are friends of a sort, even essential friends--we count on them, we recognize ourselves with and against them, they give us a reason for going on. For friendship and enmity complement and reinforce each other rather than oppose one another. Derrida undoes the lines of continuity that would locate the enemy as the negative image of the friend. The future of the political, for Derrida, becomes the future of friends, the possibility of a radical new friendship, a deeper and more inclusive democracy, an unheard-of friendship to come.

With respect to the messianic structure of friendship, the structure of a future that cannot be translated into the expectation or hope of a future present, finds expression in the trust or credence which makes friendship always still to come. Derrida writes:

 How could I be your friend, how could I declare my friendship if
 friendship ... were not still to come, to be desired, to be
 promised? ... If I give you friendship, it is because there is
 friendship (perhaps); it does not exist, presently. (59)

It is this structure of the 'to come' that is unmistakable in the vocative form of Aristotle's 'O my friends, there is no friend'. (60)

Zaoui

'Il n'y a donc plus que des Etats voyous, et il n'y a pas plus d'Etat voyou' (61): there are nothing but rogue states and there is no longer any rogue state. If every state is a rogue state, there can be no rogue state. For Derrida, this formulation, which would appear to close a conceptual order of the political, is necessarily preliminary to 'another order'. (62) Agamben's State of Exception also talks about the exhaustion of the present order and 'the possibility of reaching a new condition'. (63)How might we begin to find our way to that 'other order' or 'new condition', that to come?

Let me end by returning to my beginning. Perhaps the 'Zaoui case' is an aberration, a mistake, as it has been suggested, that has become so compounded that Helen Clark's government and the New Zealand Security Intelligence Service can no longer find a way to back out of their corner of lies and save face. Now some may want to advocate that in Aotearoa New Zealand the 'exception' is one simply restricted to 'the Zaoui case', but I am insisting that it is endemic to our existing structures of social power. 'The state of exception has,' asserts Agamben,

 reached its maximum worldwide deployment. The normative aspect of
 law can thus be obliterated and contradicted with impunity by a
 governmental violence that--while ignoring international law
 externally and producing a permanent state of exception
 internally--nevertheless still claims to be applying the law. (64)

The state of exception is endemic to Aotearoa New Zealand's current Labour government led by Helen Clark: a government that has tried to close down discussion on the genetic modification of food and attempted to foreclose any serious debate around the foreshore and seabed; a prime minister who has often acted like a petty sovereign, her acts clearly conditioned, but also unconditional, in the sense that they are final, not subject to review, not subject to appeal. A petty sovereign, unknowing to a degree, about the implications of her office, but performing acts unilaterally, without debate and consultation, and with enormous consequence. (65)

The truth is that in Aotearoa New Zealand today the state of exception invests and contaminates all our structures of power and eradicates any experience and definition of democracy. It will be the task of a truly radical politics of the future to find a conceptual path beyond it, to somehow disestablish its virus-like effect. Despite the nostalgia someone of my generation might feel for the humanitarian politics of the brief years of Norman Kirk's reign (1972-74), this cannot imply a return to some original or past state. (Although who could ever imagine Norman Kirk suggesting that he would rather have a photo opportunity with an unkempt sheep than listen to a group of influential Maori who had come thousands of kilometres bearing genuine grievances as did Helen Clark in May 2004?)

To come up against what functions as a limit case of the human, the bare life of Ahmed Zaoui offers a challenge to rethink the human. It is not just a case of protesting inhumane treatment but of examining the legal frameworks through which we might seek accountability for such inhumane treatment. One critical operation of democratic culture is to contest the racial and ethnic frames by which the recognizably human is currently constituted, to enable a set of dissonant and overlapping frames to come into view, to take up the challenges of cultural translation we find in an historical figure like the 'Pakeha-Maori'. (66) We need to access a genuinely new condition. The Labour government that offered so many New Zealanders (tauiwi and tangata whenua) a renewed sense of hope, after so many desperate years of a seemingly unstoppable New Right ideology, seems now so compromised, so parochial, so paranoid about real debate, so closed to those who exhibit beliefs and values that might challenge or expand their own at very fundamental levels. What may have begun as a genuine timidity and caution in the face of past conservative excesses and the swings of left liberalism has resulted in a full-blown curtailing of the guarantees of legal protection and entitlement at many levels of the state.

The task of a radical politics that confronts all of us is to find a conceptual path beyond the state of exception, to stop the machinery and break the hold that the 'law outside the law' has upon our lives. It will require, I think, a deep reflection on the very fundamentals of our existing democratic realities. And in Aotearoa New Zealand, I believe, it will require that those of us who are Pakeha become genuine rogues.

(1.) See J. Derrida, 'Before the Law', trans. A. Ronell, in D. Attridge (ed.), Acts of Literature, New York, Routledge, p. 204: 'Before the law, man is a subject of the law in appearing before it. This is obvious, but since he is before it because he cannot enter it, he is also outside the law (an outlaw). He is neither under the law nor in the law. He is both a subject of the law and an outlaw [Sujet de la loi: hors la loi]'.

(2.) G. Agamben, State of Exception, trans. K. Attell, Chicago and London, University of Chicago Press, 2005, p. 2.

(3.) The Woomera Immigration Reception and Processing Centre (IRPC) was an Australian immigration detention facility near the village of Woomera in South Australia. It was opened in November 1999 in response to an increase in 'unauthorized arrivals', which had exceeded the capacity of other detention facilities. It was originally intended to hold 400 people, however at its peak in April 2000 it had nearly 1500 detainees. After ongoing public pressure in response to several well-publicised riots, accusations of human rights abuses and capacity issues the centre closed in April 2003. All detainees were transferred to the Baxter Detention Centre in Western Australia.

(4.) The islands were 'excised' following legislation, passed in September 2001 and June 2002, and include Cocos (Keeling) Island, Christmas Island, Ashmore and Cartier Reef, the islands of the Torres Strait and the Coral Sea Island Territories.

(5.) G. Agamben, Homo Sacer: Sovereign Power and Bare Life, trans. D. Heller-Roazen, Stanford, Stanford University Press, 1998, pp. 17-18, Agamben's italics.

(6.) Agamben, Homo Sacer, p. 19.

(7.) For the full text of the Treaty document and its translation into Maori see 'The Treaty of Waitangi/Te Tiriti o Waitangi' at <www.treatyofwaitangi.govt.nz>.

(8.) Technically, the Treaty of Waitangi is a would-be constitutional document of uncertain legal status and, as Stephen Turner has pointed out to me, the suspension of Maori rights and due process by the 2005 Foreshore and Seabed legislation had everything to do with persisting Maori claims to (parts of) the place. The process of law, which was suspended, considered in terms of the 'first law' of Maori sovereignty, might in itself constitute a state of exception to a normative order, which is conceivably Maori. Thus, it is the withdrawal of Maori mana that marks the origin of the settler state: the sovereignty of settler law does not arise from a state of (its own) exception, but the annulment of another law. The 2005 legislation denied customary rights under British-derived New Zealand common law (to which Maori are subject but in which they are in no way equal partners).

(9.) For a copy of this document see <www.unhchr.ch/tbs/doc.nsf/(Symbol)/CERD.C.DEC. NZL.1.En?Opendocument>.

(10.) Derrida describes this process through the trope of autoimmunity, the structure of betrayal as self-betrayal, the 'strange illogical logic by which a living being can spontaneously destroy, in an autonomous fashion, the very thing within it that is supposed to protect it against the other, to immunize it against the aggressive intrusion of the other'. See his Rogues: Two Essays on Reason, trans. P-A. Brault and M. Naas, Stanford, Stanford University Press, 2005, p. 123.

(11.) This is the argument of Carl Schmitt in his The Concept of the Political, trans. G. Schwab, Chicago, University of Chicago Press, 1996, p. 39. Schmitt's texts are central to both Derrida's and Agamben's elaboration of sovereignty.

(12.) Derrida, Rogues, p. 206, translation modified.

(13.) Derrida, Rogues, p. 69.

(14.) Agamben, Homo Sacer, pp. 105-6.

(15.) Agamben, Homo Sacer, p. 106.

(16.) Agamben, Homo Sacer, pp. 105-6.

(17.) Derrida, Rogues, p. 69.

(18.) J. de la Fontaine, The Complete Fables of Jean de la Fontaine, trans. N. B. Spector, Evanston IL, Northwestern University Press, 1988, p. 23.

(19.) Derrida, Rogues, p. 69.

(20.) Derrida, Rogues, p. 70.

(21.) Derrida, Rogues, p. 64.

(22.) Calder, in F. E. Maning, Old New Zealand and Other Writings, ed. A. Calder, London, Leicester University Press, 2001, p. 1.

(23.) Maning, Old New Zealand, p. 2.

(24.) T. Bentley, Pakeha Maori: The Extraordinary Story of the Europeans who lived as Maori in Early New Zealand, Auckland, Penguin Books, 1999. See also Bentley's Captured by Maori: White female Captives, Sex and Racism on the Nineteenth-Century New Zealand Frontier, Auckland, Penguin Books, 2004, which deals with the women who voluntarily lived with Maori or were captured by them.

(25.) Bentley, Pakeha-Maori, p. 66.

(26.) Cited in Maning, Old New Zealand, p. 4.

(27.) Calder in Maning, Old New Zealand, p. 6.

(28.) See During, 'What was the West?: Some Relations between Modernity, Colonisation and Writing,' Sport, no. 4, 1990, pp. 63-89; Calder, 'F.E. Maning and the European Construction of Tapu,' Turnbull Library Record 26 (1/2), 1993, pp. 77-89 and 'From Post-Colonialism to Settlement Studies: On the Consequences of Buying Land in Old New Zealand and The Piano', New Literatures Review, no. 39, 2003, pp. 125-40; and S. Turner, 'Being Colonial/Colonial Being', Journal of New Zealand Literature, no. 20, 2002, pp. 39-66.

(29.) Maning, Old New Zealand, p. 141.

(30.) Maning, Old New Zealand, p. 7. Jonathan Lamb describes this textual effect as 'cultural looping'. See his essay 'The New Zealand Sublime' in Meanjin, vol. 49, no. 4, 1990, p. 669.

(31.) Maning, Old New Zealand, p. 18.

(32.) Calder, 'From Post-Colonialism to Settlement Studies,' p. 132.

(33.) Maning, Old New Zealand, p. 77.

(34.) The Maori Party was formed on 7 July 2004 around Tariana Turia, a former Labour Party cabinet minister, who resigned over Labour's policies concerning Maori claims to the foreshore and seabed. Dr Pita Sharples, a high-profile Maori academic, became its co-leader. The Maori Party went on to win four of the seven Maori seats in the general elections of September 2005.

(35.) Maning, Old New Zealand, p. 198.

(36.) Derrida, Rogues, p. 63, writes 'democracy has always wanted by turns and at the same time two incompatible things: it has wanted, on the one hand, to welcome only men, and on the condition that they be citizens, brothers and compeers [semblables], excluding all the others, in particular bad citizens, rogues, noncitizens, and all sorts of unlike and unrecognizable others, and, on the other hand, at the same time or by turns, it has wanted to open itself up, to offer hospitality to all those excluded'.

(37.) Derrida, Rogues, pp. 64-5, ascribes the origin of the term voyoucratie in French to Flaubert and dates it to 1865. Its use in describing a clandestine, secret power, but one that is of the people, is an acknowledgement, Derrida argues, that democracy (democratie) must be public but recognise, 'in the name of democracy, the right to the secret'.

(38.) Derrida, Rogues, pp. 65-8.

(39.) Derrida, Rogues, p. 66, uses the term 'milieu'.

(40.) It should be clear that I do not agree with Simon During when he states that 'Being a Maori Pakeha [perhaps the inverse slippage in the terms here is not altogether innocent?] is impossible, for it demands that one speak in two voices that cancel each other', During, 'What was the West?', p. 85.

(41.) The phrases 'unconditional hospitality' and 'unconditionality without sovereignty' are Derrida's, Rogues, p. 149.

(42.) I would insist upon the writing of 'Pakeha-Maori' with a hyphen. For a discussion of the hyphen see J-F. Lyotard and E. Gruber, The Hyphen: Between Judaism and Christianity, trans. P-A. Brault and M. Naas, New York, Prometheus Books, 1999. The hyphen is not just any punctuation mark. 'Does it unite or dis-unite, relate or separate? Does it establish a parity between its two terms or does it subjugate one to the other? Does the second term merely add to the first, does it follow in its line, or does it surpass--perhaps even sublate--it? Does the hyphen really have a nature or is it a sign to be read and interpreted? Is it the sign of a relation to be deciphered or the trace of a promise that has already been fulfilled?' (Translator's Introduction, p. viii).

(43.) This site might also be understood as the embodiment of what Jacques Ranciere calls the part of no-part'. The part of those who have no part (for example, the poor), the part that is not, is always the enigmatic remainder, the radical outside of any possible subject, and therefore the possibility of a politics beyond the subject--a politics of the non-subject. This, for Ranciere, is the only possible formulation of politics proper. See J. Ranciere, Disagreement: Politics and Philosophy, trans. J. Rose, Minneapolis, University of Minnesota Press, 1999, pp. 13-14.

(44.) See J. Phillips, 'The Limits of Historiography', New Zealand Books, vol. 9, no. 5, December 1999, pp. 12-13.

(45.) Bentley, Pakeha-Maori, pp. 76-98.

(46.) Kendall declares to a friend 'I have been almost completely turned from a Christian to a Heathen' by the 'apparent sublimity of their [Maori] ideas', quoted in J. the Binney, The Legacy of Guilt: A Life of Thomas Kendall, Wellington, Bridget Williams Books, 2nd rev. edn, 2005, p. 106.

(47.) Maning, Old New Zealand, p. 86.

(48.) Calder, 'F. E. Maning and the European Construction of Tapu', p. 82.

(49.) See J. Derrida, Given Time: 1. Counterfeit Money, trans. P. Kamuf, Chicago and London, University of Chicago Press, 1992, pp. 6ff and 153.

(50.) Derrida, Given Time, p. 14, Derrida's italics.

(51.) J. Derrida, Politics of Friendship, trans. G. Collins, London and New York, Verso, 1997, p. 53.

(52.) Derrida, Politics of Friendship, p. 1.

(53.) M. Nass, Taking on the Tradition. Jacques Derrida and the Legacies of Deconstruction, Stanford, Stanford University Press, 2002, p. 140.

(54.) Nass, Taking on the Tradition, p. 137.

(55.) M. Blanchot, Friendship, trans. E. Rottenberg, Stanford, Stanford University Press, 1997, p. 291.

(58.) Nietzsche writes: 'Perhaps to each of us will come the more joyful hour when we exclaim: "Friends, there are no friends," thus said the dying sage; "Foes there are no foes! say I, the living fool"', quoted in Derrida's Politics of Friendship, p. 28.

(59.) Derrida, Politics of Friendship, p. 235.

(60.) The possibility of what Derrida has called 'democracy to come' extends the democratic beyond nation-state sovereignty. To speak of a 'democracy to come' is not to invoke a current, determinate and limited concept of democracy. It does not refer to a democracy in the future, one that one day would be present, or even something in the present that could be deferred to another time. It is not, therefore, an idea. It is always to come. Instead, it is an injunction and an urgency that concerns the present itself. Though it will never be present, since its a poretic structure inhibits it from ever acquiring a presence as such.

(61.) J. Derrida, Voyous: Deux essais sur la raison, Paris, Editions Galilee, 2003, p. 150.

(62.) Derrida, Rogues, p. 106.

(63.) Agamben, State of Exception, p. 88.

(64.) Agamben, State of Exception, p. 87.

(65.) The actions of the current Labour Government have been so controlling, inflexible and unilateral at times that the country has been repeatedly referred to as 'Helengrad' in the popular press and in opposition party literature.

(66.) I am fully aware that the danger of the figure of the Pakeha-Maori is that, then as now, it harbours a settler fantasy of indigeneity, something that Pakeha might seek short of a properly political and constitutional settlement with Maori, or a proper admission of Maori claims to place. However, this settlement and admission is, I maintain, a precondition, or the conditionality, of becoming a 'Rogue Pakeha'.