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Reviewed by
Branka Arsić
Columbia University
Colin Dayan The Law is A White Dog: How Legal Rituals Make and Unmake Persons Princeton University Press, 2011. xvii + 368 pp.

Law is the major character in Dayan's philosophical narrative. The main objective of this narrative is not so much to offer a juridical understanding of the ways that law restructures reality than to show how "law encapsulates, sustains, and invigorates philosophies of personhood" (Dayan xii). Analyzing how the law sometimes alters and disfigures human persons—as with slavery and civil death—reducing people to bare human materials, biologically alive but legally dead, Dayan summons a remarkable range of philosophical tales, including Voodoo, Greek tragedy, medieval law, Human Rights Watch reports, magic, and medicine. But eclectic as this selection is, these discourses tell a rigorous story about how humans are turned into non-humans, how animals become humans, how things are endowed with intention. Such mutations, for example those enacted by bad magic or fantasized by philosophers and writers, lie at the core of what Dayan recognizes as the law's capacity to create the fiction of dispossessed persons, a fiction she identifies as "negative personhood," whereby legal thought renders "the meaning of persons shifting and tentative: whether in creating slaves as persons in law and criminals as dead in law, or in the perpetual re-creation of the rightless entity" (xii).

Given the variety of names and discourses referenced in Dayan's tales, we might review this book in many ways, and yet Locke and Melville play crucial roles in all of them. This is not to say that The Law is a White Dog is a book on Melville, or even that Melville's presence is overwhelming. Instead, Melville centrally illuminates many of its arguments. Like the many spectral existences that pervade Melville's writings, Locke and Melville haunt Dayan's mind and play a central role in the chapter "Taxonomies," which both elucidates arguments advanced up to that point, and grounds those to come.

Dayan understands Locke's empiricism as opposing the essentializing of any identity; hence it is potentially non-identitarian. Positing that human nature—human reason, its ideas, its self-reflection, or simply everything that generates human self-identification—is not innate but generated by experience, Locke allows for no fixed essence to differentiate among human beings [End Page 86] and even among different forms of life; he distrusts essentialized "conceptions of sorts and species. The boundaries of animal species are uncertain . . . and even the distinction between variety and species is blurred" (Dayan 117). In fact, Locke de-essentialized human nature to the point of speculating that one person could be diffused into two bodies, or, on the contrary, that two minds could inhabit the same body. But Dayan's interest in the fantastic aspect of Locke's philosophy is guided by its ethical and political potential. For her, Locke's claim that no identity is pre-determined avoids the political perils of hierarchical thinking by cautioning us to understand that no human being, and therefore, by definition, no race, differs in its nature from any other. In Dayan's understanding, then, Locke's ontologies of personhood block racist discourses and are heavily invested in mobilizing ideas of equality and in disturbing a hierarchically ordered humanity. Yet the eighteenth-century natural histories that were formulated in the wake of Locke's thinking, as if completely oblivious of it (Dayan discusses in detail Edward Longe's History of Jamaica, but other examples abound), substituted his experimental persons with un-crossable taxonomical boundaries that not only separated humans from animals, but also offered new ideas concerning what was to count as human. These new taxonomies unleashed racist fantasies that came to locate "a guinea-negro" in the same category as "learned horses, learned and even talking dogs" (119), while at the same time eighteenth-century slave codes finessed naturalist hierarchies into a new legal category of the slave, a fiction of law that became a reality, designed to embody a fantasized mixture of human, animal, and inanimate thing.

Melville, Dayan suggests, is perhaps the antebellum America's most profound answer to such racist bio-classifications. As she reminds us through a reading of Israel Potter, Melville's writing is populated by dispossessed, rightless and tortured persons, as well as by suffering animals. The world Melville depicts is so tormented by crude categories imposed by the law—as in the case of "chattels" giving "new meaning to persons, the human anomaly constituted by law as property" (Dayan 115)—that humans appear to be irrevocably condemned to identities fashioned for them by the law and by its supposed unalterable power. In contrast to this world of fantasized divisions metamorphosed into reality, Melville juxtaposes another one, closer to Locke, in which all kinds of criss-crossings are possible: a world of collapsed categorical boundaries that disorients the hierarchies generated by discourses of jurisprudence and natural history. Thus, when Melville uses the same adjective to describe opposite characters or phenomena, when he mixes animals with humans, birds with dogs, or the inanimate with what is living, when "in order to tell the story of inhumanity, [he] depends on what is assuredly not human" (114), he is not reducing all things to an undifferentiated mass of entities without consequence. Instead, he [End Page 87] is attempting to confuse the mind in love with hierarchically ordered categories that condition ideologies of slavery and incarceration.

To be sure, many critics have by now argued that Melville's a-categorical thinking should be read as a critique of the racist orders of eighteenth-century natural histories. But Dayan's readings are novel in three ways. First, in demonstrating how law reshapes bodies as if it were a natural force, Dayan suggests an intimate relation between the discourses of natural history and the law that invites us to rethink this divide in Melville's work and complicates our understanding of the political. Second, by managing to escape moralistic or humanistic discourses, while at the same time incessantly worrying about the dignity of the human, Dayan's arguments complicate the relation between the human and non-human in Melville. In order to register how the situation of animals in Melville's world pleads for a philosophy that would address the question of non-human selves and their rights, Dayan shows us how Melville's animals and humans often inhabit sites of unfathomable suffering and how Melville invites "connections between animals, slaves, Indians, prisoners, or laborers set off against the self-righteousness and hypocrisy of polite society" (Dayan 114). Third, Dayan rethinks the status of the fantastic in Melville's tales and, perhaps, treats it as an ontology in its own right. For instance, she discusses the "fugitive steer" scene from the end of Israel Potter, in which Israel sees an apotheosis, "the white face . . . of a black-bodied steer in advance of the drove, gleaming ghost-like through the vapors." This phantom scene is fantastic: "both body and spirit, the steer is an icon of matter that is also a ghost" (115). But in Melville this assemblage acts as a counterforce to reactionary legal fantasies rendered real, making "us think uneasily of whites in blackface, performing their extravagant mimicries of slaves" (115).

In Dayan's reading, then, Melville clearly understood that the reality generated by the law is constructed of fantasies predicated on the reduction of minds to pure bodies (as in the case of slaves or the civilly dead). Melville opposes to those fantasies an ontology of a different order, in which no pure matter exists because all living beings are depicted as capable of suffering. In understanding all living forms—from tortoises to humans—as capable of suffering, Melville did not seek to turn suffering into a natural phenomenon, thus minimizing its importance. Instead, he wanted to press us to revisit what we understand as pain, cruelty, or torture in order to imagine a world without violations of either the natural or the human order. Having us clearly understand that intention in Melville is one important gift, among many, that The Law is White Dog bestows on its readers. [End Page 88]