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A couple of lengthy fragments from Catherine Mills’ “Playing with Law: Agamben and Derrida on Postjuridical Justice” (South Atlantic Quarterly, 107:1, 2008), following on from these meanderings around questions of norm and precariousness here and here:

Toward the end of his book State of Exception, Giorgio Agamben writes:

One day humanity will play with law just a children play with disused objects, not in order to restore them to their canonical use but to free them from it for good. What is found after the law is not a more proper and original use value that precedes the law but a new use that is born only after it. And use, which has been contaminated by law, must also be freed from its own value. This liberation is the task of study, or of play. And this studious play is the passage that allows us to arrive at that justice that one of Benjamin’s posthumous fragments defines as a state of the world in which the world appears as a good that absolutely cannot be appropriated or made juridical.1

[…] the toy brings to light the “temporality of history in its pure differential and qualitative value.” That is, in making present “human temporality in itself, the pure differential margin between the ‘once’ and the ‘no longer’” (IH, 72), the toy permits a release from continuous and linear time and the realization of and return to history, understood as the true homeland of humanity (IH, 104–5). In relation to law, we can now say that as a disused object the law has lost its use value in the realm of the politicoeconomic and has instead been relegated to the profane use that can be made of it by children. The characterization of its being in force without significance appears to locate the law within the diachronic element of the “‘once’ . . . ‘no longer,’” rather than within the synchrony of miniaturization.

This is significant because it highlights the ritualistic dimension of law, which compensates for the disjuncture of past and present, Agamben argues, by reabsorbing diachrony into synchrony. Play, however, transforms synchrony into diachrony by breaking the tie between past and present. This production of a differential margin in the dialectic of rite and play is the condition of history; it is that which allows for the now. As a toy and only as a toy, as an object of play, the rite of law contributes to the revelation of the essential historicity of the human.

The ritualistic dimension of law is important for another reason as well. Agamben insists on the impossibility of the elimination of either diachronic or synchronic signification: in all games and rites, the one remains a stumbling block for the other, thereby preventing the attainment of a pure state of diachrony or synchrony. Thus, he writes, “at the end of the game,” the toy — the privileged signifier of absolute diachrony — “turns around into its opposite and is presented as the synchronic residue that the game can no longer eliminate” (IH, 79). This implies that playing with law does not mean eliminating the law, for there is actually a sense in which the law is rescued from its own obsolescence in play. Rather than being maintained solely in a state of decay characterized by the simple lack of practicoeconomic value as law, it is given a new use. But this does not take the form of a resacralization of the law and restoration of transcendental meaning or force. Instead, the new use of law takes the form of its deactivation or deposition.

Before saying more of this, it is worth cautioning against the phrase “at the end of the game” used above, for in what sense would the game in which humanity plays with law have an end? To construe the game of playing with law as having an end would in fact push Agamben’s conception of the messianic toward an identification with the eschatological, a conflation that he explicitly resists in The Time That Remains.16 Thus, within his own characterization, it would be more accurate to insist on the endlessness of play. As with the activity of study with which it is intimately related in the paragraph in question, play is interminable; it has no end beyond pleasure.

As Agamben writes in Idea of Prose, “Not only can study have no rightful end, it does not even desire one.”17 In fact, it is presumably the endlessness of play that allows for the noninstrumental appropriation of law and ultimately its deactivation in play; that is, the “free use” of law within play exceeds the constraints of instrumentality and gives onto a justice that Agamben identifies as akin to a condition in which the world can no longer be appropriated by law. […]

And, from the final paragraph:

In “Structure, Sign, and Play,” Derrida offers important insight into the concept of play when he identifies two tensions that the concept of play cannot be separated from in Lévi-Strauss’s work, the first of which is in its relation to history and the second in relation to presence. On the basis of these, Derrida concludes that the overriding conception at work in Lévi-Strauss is a “saddened, negative, nostalgic, guilty, Rousseauistic” approach to play that is “turned toward the lost or impossible presence of the absent origin,” a play that “escapes the order of the sign” and is motivated by the reinstitution of the center as foundation and assurance of presence.44 Would it be wholly inaccurate to suggest that this conception of play is also found in Agamben’s work? Certainly, his conception of play is not turned toward a lost past as the condition that chronologically precedes the degradations of culture and language. But what is at stake in play is the essential historicity of the human, the “homeland of humanity,” revealed through the originary experience of infancy, an experience that ontologically precedes and institutes the caesura of language and signification. In the face of this, it may be worth affirming Derrida’s description of a second — though not strictly opposed — “Nietzschean” conception of play, of which he writes that this way of “thinking of play” entails a “joyous affirmation of the play of the world and of the innocence of becoming, the affirmation of a world of signs without fault, without truth, and without origin. . . . This affirmation then determines the noncenter otherwise than as a loss of center. And it plays without security,” no longer dreaming of “full presence, the reassuring foundation, the origin and end of play.”45