Thinking with Alaa: Alaa’s utopia

“Law is the projection of an imagined future upon reality” — Robert Cover, “Nomos and Narrative” 

“I am an anarchist who loves law” — Robert Cover 

I spend an unusual amount of time thinking about law. Not laws, not individual rules or statutes, but Law, the concept itself. Is it an instruction? A command? A judgment? A contract? A promise? A map? An instrument? A text? This isn’t a trivial question, because it strikes at the heart of so much violence. 

From where do you or I get the authority to state: “Such a law is unjust, I will not obey it”? The response must be: “Who do you think you are?” 

Some of us believe there is a “justice” beyond law. But who decides on this justice? A tyrant thinks he is enacting “justice.” A tyrant thinks that his command is divinely ordained justice. What is the difference, then, between a judge, a criminal revolutionary and a tyrant? For all three believe that justice is on their side. 

Walter Benjamin said that justice is “law-abolishing,” which in an extraordinary utopian moment, would destroy all human law, and there would be no attempt to produce a new law. There isn’t even a new judgment. He calls this moment “divine violence.” But how can we differentiate between a real messiah who destroys the law, and a counterfeit one? Also, God surely must judge. I hope so, at least. 

As part of my research, I wrote about Alaa’s father, Seif. Seif provides a good example of the problem I’m talking about. 

Now, more than anyone, Seif knows the violence that saturates each and every single legal statement. After all, he was imprisoned, tortured, and stood before exceptional courts. And yet, he decided when in prison to study for a law degree. In prison. Afterward, he dedicated his life to becoming a human rights lawyer, while still remaining a communist. Why then, I wondered, did he bother to take law to be worth engaging? Why does he consider it to be a worthy opponent? 

Leila Soueif once told me that “Seif looked at law holistically, with a principle of justice in mind. You must make it very hard for anyone to hide behind the law, and you must take law to its logical conclusion. Perhaps that’s why we’re facing a legal counter-revolution.” 

Now I, foolishly, pride myself on being a “critical” academic. It would be embarrassing to let myself be wooed by such a statement. After all, I know that the law is just a tool of social control. I know that it is only a cover for class power. I know it is a cruel theatre of the absurd. It is overly judgemental, divisive, violent, and can never be redeemed. But I still can’t help but be charmed and puzzled by Seif’s decision to take the law seriously, perhaps to fall in love with it. I am also sure that he had more knowledge of its seductive power than an entire library of Foucault scholarship. 

The same question gripped me while reading Alaa’s book You Have Not Yet Been Defeated (2021). Alaa, too, is thinking about law, and it seems he inherited this from his father. So even in moments of bizarre legal manipulation, Alaa — and his family — would still desperately use legal language, demand procedural correctness, think about constitutions and imagine alternative formulations of law. For example, he suggests somewhere that the constitution should not codify rights in the form “The state guarantees…” but in the form “Each citizen has the right to…” I take him to mean that citizenship is not a gift that is granted by a sovereign power; it is a relationship that grows out of mutual recognition, and which can only be activated once those citizens continuously re-assert the status they have conferred upon each other. This is only possible in a common world that we can inhabit. 

And law comes up in strange places. For example, in a beautiful chapter titled “Autism,” Alaa explains how autism disables individuals from navigating and deciphering what is called a “hidden curriculum,” those unspoken norms and behaviors that make up the stuff of everyday lives. Individuals react to this inability through anger and aggression: “aggressive behavior is an attempt to communicate, to express what’s hard to express.” 

What is hard to express here? The unspoken behaviors and rules that bind us. Alaa compares the “hidden curriculum” to the “written constitution.” The “hidden curriculum” in this case is the set of cruel social norms that organize systematic torture. The “written constitution” is what the state declares as its intentions, and what must bind the state. We’re in despair because the written constitution is irrelevant and not concerned with us, while the hidden curriculum is dripping with even more blood, and both are generally unjust. 

By the end of the chapter, the “hidden curriculum” becomes “the hidden constitution” — so it might as well be law. 

“Which is easier? To train the minority unable to conform to the hidden constitution to ignore injustice as long as it falls on others? To avoid challenging authority and to assume its good intentions? Or to persuade society that it’s absurd to try to live with an authority that allows itself to murder and torture and detain as long as it sticks to hidden rules? The books warn us: don’t train for conformity. Our duty is to teach the curriculum and to empower the disabled person to register and grasp what society expects, and then decide on their own free will how they should behave. They might decide to conform, or they might rebel.” (p. 217) [1]

I like this metaphor of the “hidden constitution,” but perhaps Alaa construes it too narrowly. Alaa is complaining that we’re living under a “hidden constitution” that legitimizes torture and that makes individuals complicit in this open secret. But Alaa here is downplaying the fact that torture also destroys the “hidden constitution,” it ruins the ties of trust and solidarities that people can fall back onto, that enables them to cooperate and communicate. So what if it is not only us, the revolutionaries, who are “autistic” but also the murderers and the torturers? For they too cannot grasp this complicated world of norms outside the cell or the police station, and torture does seem to be a strange attempt at bracketing out the world of outside norms and condensing it into a distorted parody. Alaa has more to say about this world of outside norms and its nuances. He is interested in this everyday background stuff: rituals, children, marriage, stories, animals, etc. Why can’t all those things also belong to the hidden constitution, which the torturer also denies? 

Another reason why I like the metaphor of “autism” — whether it is ours or the torturer’s — is that it offers us an interesting model of how individuals come to disobey law. Alaa calls such disobedience an act of “conscience,” but I feel notions such as “conscience” are too individualistic. It is not conscience that comes first, but the inability to comprehend or recognize the rule. Let’s say you come across an instruction, and you cannot understand why it exists, where it comes from or how it applies. The natural response would be disorientation. You have two options: by continuing that awkward refusal, interrogation or inquisitiveness, by testing the rules again, by studying their enactment, by looking at how they compare to each other, you gradually learn to trust that your inquisitiveness and curiosity are a necessary act of justice — this is so because only when the norm is justified would it become enabling of your freedom. The other option is to become a tyrant and a torturer who refuses this disorientation and suspends it in one decision. This is the difference between “us” and “them” — not that we’re rebels and they are conforming. We are the ones who are more welcoming to the disorientation of not knowing how to navigate the hidden constitution.[2]

Throughout Alaa’s narrative, one feels a growing frustration on his part at the state’s flagrant repudiation of any pretense of legality. The “written constitution” is completely unbinding and unenforceable. It is a complete sham. The difficulty here is that, of course, “law” is always a sham used by the strong against the weak. And so I was always fascinated by the phenomenon whereby the weak use legal means to make themselves heard and record the injustices that befall them. I am always fascinated by the “litigious subject,” as the scholarship calls it. Derrida said that justice is the opposite of law. Law treats similar cases alike; justice treats similar cases differently. But I’m wondering if the concept of law may still have some familial resemblance to justice. Otherwise, we wouldn’t be so passionately furious when the law is so flagrantly unjust. 

Alaa tweets: “I just want to make it clear that even if they purged the Interior Ministry and wrote the most brilliant constitution and elected a truly popular revolutionary government and wrote the best possible protest law, I would still not abide by it” (p. 176). 

Alaa (and Seif) tried to solve the problem of law by inhabiting a legal world entirely of their own making. In this inverted world, there is law, and you can continue to insist on it, and you can continue to visualize it, and possibly you can point at moments where it is fomented — in each moment where people assemble, “togetherness” as Alaa calls — and yet, once it comes into power, once it is in effect, you will disobey it. You can even appeal to it and disobey it at the same time. You can oscillate between the two extremes at once.

What anchors this imagination is a foundational principle: “No one is to be tortured.” In the context of Egypt, this is surely a utopia. In other places and to other audiences, it sounds mild. 

But Alaa takes it so seriously and holds on to it so uncompromisingly that one starts to wonder about the possible implications of such a stance. For once you make the foundational principle of law, “No one is be tortured,” this may require rethinking a usual view of law as “command” and as “instrument.” Imagine a very real scenario in which a people (even “a popular government”) mandates and permits the torture of a group of people. This law may procedurally be valid. It may also embody the will of the people. In most cases, this is precisely what undergirds the law’s validity — that it could be shown to procedurally reflect the will of the people or some authorized body. But if you hold on to “No one is to be tortured,” you fundamentally question the idea that law is simply what anyone (even a “people”) decides. And all law always has an element of discretion, arbitrariness and force — by the police, by the judges, by the legislators. And any legal system that leaves this possibility of arbitrary violence open — which is often the case — then must be suspected as such in advance. 

Of course a usual rejoinder I faced when I tried to express such an argument is that it is not ambitious enough. For why not, instead, hold on to the abolitionist principle and call for the end of all punishment and/or prisons? And doesn’t this insistence on the minimalist demand of “no torture” collude in carceral logic? 

Possibly. But I could also imagine a connection between the minimalist and maximalist utopias here. In both cases, the priority is given to the criminal. It is a legal imaginary that always sides with the criminal and the weak. It is the weak who is always potentially criminalized. And it is usually the weak who is marked by torture. And it is usually the weak who intimately knows the violence that imbues the law. It forces you to contend with the “hidden constitution” of inequality — that system that treats people like disposable objects. 

And Alaa notes this conundrum. In a moving passage to Seif following the latter’s passing, Alaa writes: 

“A long time ago we used to talk about the value of truth. I remember your words and imagine courts in an ideal world, a remote, but possible world, that upholds the truth. Courts that uncover and explain the flaw, how the criminal did it, why we let him. 

But I can’t see any way how prisons help us stop it happening again. Without you, how will I ever explain to people that we can dream of a world without prisons.”

My question is: why would this world have courts? 

And why would “we” have any role to play in such courts? Also, what Alaa is describing here is not the usual view of the law as sanction-backed command. This is law as instruction, as education, as advice. Note, too, that criminality still exists in this world. But, alongside the criminal, the community as a whole is put on trial, so that they face their responsibility in “letting him” do it. Again, a legal inverted world, because such a law doesn’t exist. 

It is ironic that Alaa is imprisoned for “insulting the judiciary.” This surely must be the greatest compliment to them that he thought of including them in his utopia. 

“Anyone who tells you that the solution is to apply the law is bullshitting you. The solution is to apply the law to the strong before the weak, to the rich before the poor, to Sisi before the doorman”(p. 269). 

This is an inverted world, because such a law doesn’t exist and it never has. 

Part of the reason Alaa may be dubbed an “anarchist legalist” is the impact of the South African experience on him, and which can be seen from the first chapter of the book: “Who will write the constitution?” And this is an interesting question, indeed. And his writings are peppered with a “we” — “we” of this square, “we” who are between hope and despair, “we” who love, forgive, get angered, disobey. But who is this “We”? And who is the “People”? And who is the “you [who] will not be defeated”? For Alaa surely knows — as the reflections on South Africa suggest — this “we” is a question, not a given. It is momentary, made, contested, and interrogated, but it cannot be presumed. And the tragedy is that “we” continue to summon a “we” and still wish to defer answering the question: who? 

There is a tension here, too. For what if the “we” who author the law also decide to torture someone? This is the paradox of all law. It always has an element of force, of illegitimate authority, of command. That is why Alaa decided to disobey it in advance, and yet insist that it “binds” the people. This is an impossible, hysterical position to maintain. 

Have “we” been conscripted into this impossible fiction of a law without command? Of a law whose author is an anonymous “we”? A law whose author and addressee remain a question? Because from one angle, it looks like neo-liberalism on steroids. From another angle, it looks like communism. And this ambiguity also appears most forcefully in Alaa’s reflections on the Internet. Alaa imagined — this was in 2011 — that the Internet was akin to a multitude that extends beyond the governing power of the state, perhaps the internet as a law unto itself, what he calls an “infrastructure.” But the internet isn’t just a democratic infrastructure. It is also a political economy, a monopoly, and a market of signs. So it may appear as a higher law without command – the law of the multitude and the network – but this turns out to be fiction, too. And it carries with it so much decentralized and centralized violence. 

But perhaps one should face up to the possibility that one’s always conscripted anyway, and that this risk cannot be eliminated. Except, also, that one remains ready to apologize. I have no doubt that another moment will come when the question of who “we” are will be pertinent. And the question of law will continue to intrigue and infuriate. So in order to be prepared for such a moment, three questions must be reckoned with. 

Firstly, what must you apologize for?[1]

Second, who are “we”? 

Third, what is the “hidden constitution”? And how do we decide to conform or rebel? 

I suggest that you, who have not been defeated, to move from heartbreak and start to entertain hysteria and ecstasy. This is the hysterical position that Alaa embodies. Write fictional constitutions. Draw up useless political programs. Assume simultaneously the role of criminal, lawyer, judge, defendant, witness, clerk, tribunal, and jury (Alaa embodies all of them at once). Let’s see what this inverted legal world is all about.