Land of Nod or Land of Not?

Genesis 4:1-16 and Agambens Homo Sacer Ryan van Eijk

1. Introduction. I saw them approach in the visitors corridor of the youth detention centre. A man and a woman. Both in their early fifties, but walking like two grannies far in their seventies: almost dragging themselves they approached slowly. Leaning on each other, turning to each other for support and comfort. I felt compassion and sorrow as I walked to them. When we passed I greeted them, but they were absent minded and completely introverted so they did not notice me at all. No mutual eye-contact, no contact at all. I felt a kind of strange relief when we had passed each other. I knew they came to visit their son. Yesterday he came in. I met him for the first time just a few minutes ago: a seventeen year old boy, a red face with pustules, greasy hair, and small spectacles. In an aggrieved way he had told me in our private conversation that it was not necessary to talk with him in a simple manner considering his grammar school background. During our talk he did not show any regret or remorse. He quietly told about what had happened: that he willingly and knowingly had pushed his younger sister out of the dormer window. Because she got all the attention. According to his feelings he had not been worth neither any attention nor any look. However, now he was shrinking back to face his parents who were on their way to him. On their way to their son, a murderer: murderer of their daughter, murderer of his own sister. I had this experience a few years ago and it has been an unforgettable one. Especially the sight of the murderers parents, who at the same time were the parents of the victim. Nevertheless, this is not a unique story, for we have not yet read 80 verses in the Bible and we find a similar drama. It happens in that old story in which a man called Cain kills his brother, Abel, and in which Cain is subsequently condemned to live in the imaginary land of Nod. The theme of this biblical story is still very current, as the above mentioned experience shows. With a(n) (un)peaceful heart one can say that Cain lives. For there are still people among us who kill their brother, and there are still people sentenced to live in the Land of Nod. However, before looking at todays Land of Nod we go back to the original story as it is told in the Bible. First we will have an exegetical look at the story about Cain and Abel, subsequently we will read the story from the point of view of sovereignty, a term used for God as well as for the state. Especially the provoking thoughts of the Italian philosopher Giorgio Agamben will guide us in this second part. It will provide us with an unexpected and current meaning of this old story. The story of Cain and his brother Abel (Gen 4,1-16)
Adam lay with his wife Eve, and she became pregnant and gave birth to Cain. She said, With the help of the LORD I have brought forth a man. Later she gave birth to his brother Abel. Now Abel kept flocks, and Cain worked the soil. In the course of time Cain brought some of the fruits of the soil as an offering to the LORD. But Abel brought fat portions from some of the firstborn of his flock. The LORD looked with favour on Abel and his offering, but on Cain and his offering he did not look with favour. So Cain was very angry, and his face was downcast. Then the LORD said to Cain, Why are you angry? Why is your face downcast? If you do what is right, will you not be accepted? But if you do not do what is right, sin is crouching at your door; it desires to have you, but you must master it.

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Now Cain said to his brother Abel, Let's go out to the field. And while they were in the field, Cain attacked his brother Abel and killed him. Then the LORD said to Cain, Where is your brother Abel? I don't know, he replied. Am I my brother's keeper? The LORD said, What have you done? Listen! Your brother's blood cries out to me from the ground. Now you are under a curse and driven from the ground, which opened its mouth to receive your brother's blood from your hand. When you work the ground, it will no longer yield its crops for you. You will be a restless wanderer on the earth. Cain said to the LORD, My punishment is more than I can bear. Today you are driving me from the land, and I will be hidden from your presence; I will be a restless wanderer on the earth, and whoever finds me will kill me. But the LORD said to him, Not so; if anyone kills Cain, he will suffer vengeance seven times over. Then the LORD put a mark on Cain so that no-one who found him would kill him. So Cain went out from the LORD's presence and lived in the land of Nod, east of Eden. (New International

Version, UK) 2. The exegetical perspective

What strikes immediately while reading this story about two brothers is the richness of topics. Thats why the story can be read from different perspectives. One can focus on the relationship of the two brothers with themes like envy, rivalry and hostility. In this perspective the preferential treatment by God of the youngest brother is remarkable (and which also can be found in other stories in Genesis: 21:12; 25:23; 29:15-30; 48:13-20). Considering the name of the youngest brother -Abel (havel, hebel) means breath- one can read the story as Gods choice for those who are just like air, which means normally ignored and unseen by others. Then the story is connected with the theme of making moral choices: How will man react when God proves to stand up for the weakest? God clearly has ethical expectations towards Cain. Another theme related to the former one is the theme of violence. The story shows how violence affects both perpetrator and victim, and what Gods position is in this. And there is the theme of the relationship of man and his soil. The soil provides Cain with food. It helps him to survive. However, the same soil will and cannot hide his crime: Cain will loose the (good) soil. Cain is condemned by God and will be cut loose from his roots; he has to leave the place where he belongs, and is punished to roam about restlessly in the Land of Nod, and to live like a hobo who is a stranger everywhere. Besides the exegetical perspective on this Bible text we intend to read the story from the perspective of law. In criminal law the criminal act is the central aspect of concern. That is why we will split up the exegetical reading of the story around that criminal act: 1- before the act, 2- the act itself and, 3- the consequences of this criminal act. a- Before the act of violence

Just like many other biblical stories the story tells us about nature of man. Right from the beginning it becomes clear that Cain is a creature Gods. This is an important statement considering what happens later in the story. This man called Cain has a brother: Abel. Cain is farmer and Abel is herdsman. We hear how Cain takes the initiative to sacrifice. Cains example is followed by Abel. Both bring sacrifices in accordance with their means of existence: Cain brings fruits of the field and Abel from his flock. Then there happens something which causes anger and frustration: without any explication God makes a distinction. For God ignores Cains sacrifice completely in contrast to Abels sacrifice. The reason for this distinction is not mentioned at all. This omission in the story gives rise to speculation: why does God pay attention only to Abels sacrifice and does He ignore Cains? Is it to show Gods sovereignty or His capriciousness? Or is it indeed, as many times is suggested, because of their different attitudes towards their sacrifice? After all one can say that Abel brings the better sacrifice: he offers from the first-born of his flock and their fat. This specification of his sacrifice is understood by some as an argument that Abels sacrifice is prepared with more attention and carefulness. By doing this he honours God explicitly as life giver. Others refer to the tradition that for a good sacrifice it was necessary to sacrifice with blood. Only Abels sacrifice answers this condition. In the Bible there is always a reason for refusing a sacrifice: disobedience by the sacrificer or a wrong procedure. But the words 2/13

used in the story are neutral and do not express any preference. The word used for both sacrifices is the same: minha. The only distinction is found in the description of the sacrifices. Looking at the text it seems the combination of the person and his sacrifice which is important, for person and sacrifice are explicitly combined in the text. In P-tradition we find that blood was required in a sacrifice when it was an involuntary sacrifice: to remove sin (hattat) or guilt (asam). In this story the sacrifices are brought voluntarily, so no blood is required. Moreover, the story belongs to J-tradition. In Hebrew 11:4 we can read that the reason for ignoring Cains sacrifice is seen in his attitude.

Illustration 1: Cain and Abel bring their sacrifices. Palatine Chapel, Palermo, Italy.

All the speculations about the reason for this distinction seem to lead away from the real issue in this story. The exegete Westermann puts that the reason for the distinction is left out consciously. In doing this it becomes clear that distinction between human beings is unavoidable and unexplainable. In this way he points in the direction this story is really about: how to deal with the experience that others seem to blessed more, how to coop with the impression that others have more good fortune? The distinction causes that God asks why Cains face is downcast. Though Cains reaction is understandable: the combination of disappointment, sadness, anger and disbelieve make the corners of his mouth, his eyebrows, and his look sink. The first-born is rejected in his expectations: God prefers his younger brother Abel, not Cain. Hurt in his feelings Cain cuts himself off from his surroundings, from Abel and from God. The man who turned to God by offering becomes a man who turns away from God, and ends in a man who turns to himself. Just at that moment God speaks to Cain directly. God notices what is happening, as if God realises already what the consequences of this reaction can be. So contacts Cain directly and explicitly asking Cain why he is angry and downcast. The verses 4:6-7 have been difficult in translation and meaning until today. Most likely it is divine warning which tries to bring Cain to reconsideration and self inspection (Westermann 1974: 406-410). The warning locates the source of the crime in the criminal himself: it is not Gods favouring Abel that will bring about the murder, but rather Cains inability to accept a God who authors these mysterious and inequitable acts of choosing (Moberly 2007: 23/24). It is emphatically pointed out to Cain that he has a freedom to choose, and a responsibility for what he does and does not do. It means that man can stand up to sin and frustration. While appealing to Cains good will God leaves the responsibility at Cain and in doing so God respects his freedom. After all, man knows what is good and wrong, he only needs to do good. However, Drewermann correctly remarks that God does not speak the freeing word namely that He also accepts Cain. But even if God would say so it is questionable whether Cain would be in a state of mind of hearing it. (Drewermann 1998) There follows no answer from Cain to Gods warning. At this moment any contact or communication proves to be impossible for Cain. Hurt so much because of feeling rejected by God Cain is not capable any more to see the other. However, Cain who feels rejected by God is not just seen by God but even directly addressed by God. The (supposed and felt) negation is not a definitive one. At the contrary, God turns to Cain with concern and a warning. God points out the possibilities to act in a responsible manner. For if Cain can not overcome it, it will go wrong. And it goes wrong.

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b- The act of violence Some time later it happens: And while they were in the field, Cain attacked his brother Abel and killed him. Somewhere in the field it happens, without any witnesses. The fact that the act is expressed with two verbs (attacked and killed) shows that it is a wanted and conscious deed (Westermann 1974, 411). Not many words are spent on the act. No bloody or sensational words at all. To the contrary. It is expressed brief and sober, it sounds chilly and reservedly. The most terrible act one man can cause to another man deserves no sensational descriptions, for murder brings chilliness in human life. For Abel the saying nomen est omen is true: he stays a misty figure, without saying a word or sigh, by Cain violently removed from life and story. Man turns out to be not only mortal, but even lethal. So the deed does not strike God, whose behaviour is the cause of Cains deed, but it does strike the innocent Abel. c- After the act of violence After Cains deed God turns to Cain again with the crucial question: Where is your brother Abel? This at the first sight innocent, informative question is according to Westermann a question referring to relationship, for being human does mean being a fellow man (Westermann 1974, 413). By asking the question so directly and explicitly Cain is unavoidably confronted with his deed. He has to respond, and so he has to be responsible. Cains answer suggests that he is conscious of that, although he wants to evade his responsibility. For he responds negatively with his own evading question which shows cunning and cynicism. With his question Cain seems even trying to resist God. For with his question Cain gives back the responsibility to God in a subtle way. After all, by paying attention to Abels offering God looks after Abel and causes by doing this Abels death, and furthermore God fails in looking after Abel. According to Drijvers and Schilling his answer is in a subtle way blasphemous and shamelessly intelligent (Drijvers/Schilling 1988, 89). Cain does not show any remorse or guilt, on the contrary, he persists in his deed.
Illustration 2. Cain and Abel. Engraving by G. Dor (www.gutenberg.org)

God reacts with dismay and puts the responsibility back to Cain by saying: What have you done! Gods dismay is followed by the announcement that He hears Abels blood crying from the ground. Abel does not live any more, but that does not mean that he has forgotten. God shows that He knows what has happened to Abel. Then the curse follows: Cains punishment is that he will be an outcast, without any home, always on the run, wandering and roaming. Cain realises immediately and thoroughly what the curse and punishment imply for him: he looses all his property and asset, furthermore he has to survive totally unprotected. He who by offering his brother Abel now has Gods attention realises that this attention is not a blessing at all: One can not bear this punishment, for being cursed by heaven and earth, by God and fellow man, means one does not have any life or any future. This curse means a certain death! That is why Cain in his reaction utters plaintively what it means for him. It seems that God understands Cains reaction as a request for reduction of the penalty. It seems as if God is open to Cains reaction, for though God does not change the punishment, it is restricted. He marks Cain with a sign which shows to others that Cain is shut out as well as protected by God. Just as the unexplained distinction by God of the offerings at the beginning of the story caused speculation the unspecified mark gives reason for all kind of guessing. Some

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think about a tattoo, a mutilation, a visible disease leprosy or an other recognizable physical
Illustration 3. In some countries some prisoners wear a Cains mark, like this teardrop tattoo.

mark like skin colour or lacking beard hair (Westermann 1974, 424 , Mellinkoff 1981). Bouhuijs and Deurloo have the point of view that it was not a tattoo although it was visible: Cains act marks him as life can indeed mark ones face (Bouhuijs/Deurloo 1980). Moberly defends the thesis that the meaning of the sign is hidden in the text itself: It is true that Cain does not enjoy the protection of the community anymore, but he will be protected by his terrifying fame. Because of his crime he will be known by others as a dangerous man who overreacts. This will be the reason that others will avoid him (Moberly 2007). The exegetes Drijvers and Schilling join with the opinion in the Jewish tradition which relates the mark to Sabbath: Cain should hallow that day by facing fellow man and God; he should study Thora to understand what God asks from man. Than he will turn into a mild and gracious person. Cain will be healed by Sabbath. (Drijvers/Schilling 1988, 107) Marked by God Cain leaves to the land of Nod. 3. The public law perspective Westermann says in an article about the story of Cain and Abel: Murder is a matter for the state, not for the church. It has always been that way, until today. (Westermann 1975, 13). He regrets that. And Westermann is right, for although Genesis 4 is of course very first and especially a story of faith, a juridical reading can lead to relevant and current insights for prison chaplains as well as for jurists. Moreover, theology and law have been for a long time fields which in essence -looking at content and method- are connected with each other. In both fields it is about values and opinions about good and evil, and with both fields people try to create and to maintain safety and security. The influence of religion on lawmaking and law keeping was in former days in most societies without any doubt obvious. (Berman 1974, 2147). The biblical Ten Commandments in Exodus 20:2-27 are the most famous example of this. Of course, religion and theology on the one side and law on the other side are differentiated from each other in modern society, for law is about relations between humans, and religion/theology is about the relation between the transcendent and the profane. Nevertheless, both fields remain related to each other and their relation is in many ways still a topic. (Carmichael 2001, 38-44). Besides the importance of rituals and procedures both fields have much in common looking at their methods. This is shown in the way how theologians and jurists deal with texts: both award their texts a hidden, deeper meaning and authority, and at the end both look at different even conflicting- texts as a harmonious and unambiguous totality.(Smith 2001) So it is useful to look again at the story about Cain and Abel but now from a juridical point of view. As a prison chaplain it seems a logical choice to focus from the point of view of criminal law. However, this is not the focus I will present in this article. Maybe surprisingly I will take the point of view of public law, for a central term in public law sovereignty- and the thoughts of the Italian philosopher Agamben about sovereignty show to be provocative and challenging for the current understanding of the biblical story about Cain and for the position of prison chaplaincy. 4. Sovereignty We said already that the story about Cain and Abel is a primal story which tries to explain essential aspects of man. The story gives an explanation of the fact that man has his 5/13

shortcomings. In the primal stories man is presented as a limited creature whether limited by death, sin, mistake or by anger. (Westermann 1978, 102) Man is created with a free will and free choice in his relationships with other human beings, and in the relationship with God as well. So in freedom man can choose for good or for wrong. His limitation is exactly shown by the fact that he can make the wrong choice. Along with the freedom to choose comes independence which in relations leads to responsibility and accountability. Unless one sees oneself as sovereign. That is exactly what happens in this story. As we know the story is about the offering to God by Cain and Abel. The offering is in the context of this story a clear expression of bowing for God. By offering they honour and respect God. By doing this Cain and Abel acknowledge Gods power and sovereignty. So we can conclude that there is an unequal, hierarchical relationship between Cain and Abel on the one side and God on the other side. (Lascaris 1993, 114) However, this is not surprising for the story tells about God/Creator and man/creature. One can draw the conclusion -looking at Cains reaction on the refusal of his offering- that Cain expected an answer from God. He expected a certain mutuality: do ut des (I give so that you give). The expected favour in return which he may expect but can not demand considering Gods freedom and sovereignty- does not come. And exactly that fact is what he does not accept. So his reaction implicates that Cain refuses to accept any longer Gods sovereignty. To possess the power to punish and to protect is part of sovereignty. However, Cains reaction is understandable if one considers what he experiences: Cains Protector, the sovereign God, Who he honours by offering, does not react. This feels for Cain like a rejection, as being unprotected. This has far reaching consequences. For if one is or does not feel protected anymore by the sovereign, one is thrown back on oneself and one has to protect oneself. That is the reason why Cains reaction is not only one of anger but also a withdrawing on his sovereignty. Cain declares himself independent: he resists Gods appeal and power before the act (the warning) as well as after the act (the interrogation), while the act itself is a result of Cains sovereignty. Just when hearing Gods verdict Cain realises that his sovereignty is relative and relational, and therefore vulnerable. And just then he recognises and accepts again Gods sovereignty. In this light his banishment to the land of Nod as punishment can be seen as a punishment he brings upon himself: as the act is a result stemming from his self declared sovereignty, his punishment is the shadow side form this declaration. An existence in which Cain is thrown completely back on his own; a naked existence, which means without any protection. Confronted with this verdict and its consequences he realises immediately that his sovereignty has limits, and that it never and nowhere will be absolute. This awareness relates Gods sovereignty and Cains sovereignty and brings their relationship back in its original balance. Seeing Gods verdict as a denial of Cains sovereignty is ignoring the fact that he verdict/punishment does not follow upon Cains resistance against God but is only related to Cains criminal act namely killing his brother Abel. Originally the term sovereignty means not being the subject of someone elses power, being the highest authority with the exclusive power to exercise that authority. Initially the word expressed a quality attributed to God -like expressed right at the beginning of the Christian creed (I believe in God the almighty Father, Creator of heaven and earth.)-, and in the Middle Ages (increasingly) to the monarch, who ruled by Gods grace. In the beginning the earthly sovereignty (of monarch or state) was part of Gods creation. Sovereignty was morally linked with divine and natural law. During the renaissance the monarch is still the untouchable sovereign who as a deus ex machina rules over society, like God who as the untouchable Creator rules over creation (Focqu 1992, 18), but little by little there is a process going on of advancing secularisation. In this regard the jurist Focqu sees the famous saying 6/13

of Louis XIV (Ltat cest moi: I am the state) as the secular equivalent of the christian This is my Body. He calls this etatism which does not concern just the state but also man, who now is not represented as created as Gods image and likeness but as created according
Illustration 4: Divine and profane sovereignty in one image: Pantocrator-icon with Christ flanked by Emperor Constantine IX Monomach en Empress Zoe (1028-1042). Mosaic in Haya Sophia, Constantinople/Istanbul

to the secularised image and gelijkenis of the state. Corresponding to the image of the untouchable God is the secularised figure of the sovereign monarch, who at his turn delivers the performance of a totally autonomous and absolute state (Focqu 1992, 20-22). So, depending on the changes in the balances of power there is also a change in subject linked to the term sovereignty: God, monarch, nation(state), parliament, law or people. Sovereignty is about a power which subjects other powers (in a territory) to its authority by monopolisation of the power of the sword (and expressed by the monopoly of violence and taxes). Despite the current international interdependence and failing states state sovereignty is still worldwide the most important form of sovereignty looking at the possibilities and responsibilities towards crime fighting. Referring to the secularisation one can say that the state has taken over Gods place looking at the punishing aspect of sovereignty. This makes the term sovereignty religious as well as juridical an important principal. 5. Agambens perspective The Italian philosopher Giorgio Agamben has developed provoking thoughts in his work concerning the current meaning of sovereignty. In his study Homo sacer (2002) he analyses the current situation of homo sacer. According to Agamben homo sacer is the human being who is condemned to naked life. The space of this naked life is comparable to the biblical land of Nod, a land which is not longer imaginary but has become reality. Agamben takes as starting point for his thoughts the difference between z en bos in old Greek philosophy and the figure of the homo sacer in old Roman law. To the Greeks z expressed the naked, natural (= biological) life, while bos indicated the qualified (= political) life. A homo sacer was in old Roman law a human being who was banished ans whose rights were taken away. Such human being could be killed with impunity though not religiously sacrificed, and had to live in a juridical no-mans-land. In this way he became a so called homo sacer. Agamben raletes sacer to the Latin sanctum: set apart. He rejects the current, ambivalent meaning of sacer (holy, damned) as inaccurate, for this is not the original meaning (Agamben 2002, 85-90). This homo sacer was unprotected; the only thing left to him was naked life. Paradoxically, the homo sacer was at the same time excluded and included by law, for the law which condemned him to exclusion determined by this exclusion at the same time the existence and identity of that human being. This means that the law determines who is condemned to the naked life and who can participate in the political life. Referring to the French philosopher Michel Fouceault Agamben calls this biopower. The opposite of the homo sacer is the sovereign who is also at the same time included and excluded by law. For the sovereign has the legal power to stop the rule of law in a situation which is called state of emergency. According to Agamben the situations in which the sovereign (the state government) makes an appeal to this state of emergency has been increasing the last decades (Agamben 2004). During a state of emergency one can see a 7/13

serious lack of separation between legislative power and executive power. In such situation de wetsmacht van de wet losgemaakt wordt. De noodtoestand definieert een wetstoestand, waarin de wetsnorm weliswaar geldt, maar niet toegepast wordt (omdat ze geen macht heeft), en aan de andere kant handelingen, die niet de betekeniswaarde van wetten hebben, maar die wel hun macht krijgen.1 So the state of emergency is also a kind of no-mans-land between public law (of which criminal law is part) and political reality (Agamben 2004, 8). Agamben shows that the sovereign (in casu the state government) nowadays has transformed biopower into biopolitics and that every citizen has become a virtual homo sacer. Agamben claims that it is not the human being but the human body which has become the subject in todays politics. He clarifies this by referring to the Universal Declaration of the Human Rights: De Verklaring van de mensenrechten is uitdrukking van de oorspronkelijke figuur van de inschrijving van het natuurlijke leven in de juridisch-politieke ordening van de natiestaat. Dat natuurlijke naakte leven dat in het Ancien Rgime politiek zonder belang was en als geschapen leven God toebehoorde en dat in de antieke wereld als z duidelijk van het politieke leven (bos) gescheiden was, wordt nu eersterangs in de staatsstructuur en vormt zelfs het aardse fundament van de legitimiteit en soevereiniteit van de staat.2 Or to put it differently: The simple fact of being born makes a human being bearer of rights, but while this happens the birth of a human being is immediately also linked to the citizenship of a nation state (The Latin word natio means as well birth as tribe). According to Agamben this leads in todays reality to the fact that states while claiming a state of emergency- produce naked life without political value. By doing this the states separate human rights from civil rights. Pretending that they protect the naked life which exists at their borders they in fact use this naked life to create a national identity. It is the separation of the humanitarian from the political, which is expressed in the separation of human and civil rights. This means that the (state) sovereign draws a line and decides who will be a homo sacer, and by doing this also decides which life has a (political) value and which not. In other words, het leven dat met de Verklaring van de mensenrechten als zodanig tot principe van de soevereiniteit verheven is, wordt nu zelf tot plek van een soevereine beslissing.3 In his book . Agamben makes it even clearer: while Fouceault could describe the traditional sovereignty as the power to kill and to let live, nowadays sovereignty has changed in the power to make life and to let die de traditionele soevereiniteit nog omschrijven als de macht van dood maken en laten leven, nu is soevereiniteit veranderd in de macht van (over)leven maken en laten sterven (Agamben 2003, 72 en 136). For Agamben the biggest and worst example of his thoughts becomes truth in the existence of a place like Guantanamo Bay: It is a place neither whith prisoners of war nor with accused but just with detainees, die aan een puur feitelijke heerschappij onderworpen zijn, een opsluiting, die niet alleen qua tijd maar ook qua wezen onbestemd is, want ze onttrekt zich aan iedere wet en aan iedere vorm van rechtelijke controle.4 The detainees there are in his opinion the homines sacri in a todays land of Nod.
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() die Gesetzeskraft aus dem Gesetz herausgelst wird. Der Ausnahmezustand definiert einen Zustand des Gesetzes, in dem die Norm zwar gilt, aber nicht angewandt wird (weil sie keine Kraft hat), und auf der anderen Seite Handlungen, die nicht Stellenwert von Gesetzen haben, deren Kraft gewinnen. (Agamben 2004, 49) Die Erklrung der Menschenrechte stellt die originre Figur der Einschreibung des natrlichen Lebens in die juridisch-politische Ordnung des Nationalstaates dar. Jenes natrliche nackte Leben, das im Ancien Rgime politisch belanglos war und als kreatrliches Leben Gott gehrte und das in der antiken Welt als z klar vom politischen Lebens (bos) abgegrenzt war, wird nun erstrangig in der Struktur des Staates und bildet sogar das irdische Fundament der staatlichen Legitimitt und der Souvernitt. (Agamben 2002, 136) Das Leben, das mit der Erklrung der Menschenrechte als solches zum Prinzip der Souvernitt erhoben worden ist, wird nun selbst zum Ort einer souvernen Entscheidung. (Agamben 2002, 152v) () die einer rein faktischen Herrschaft unterworfen sind, einer Haft, die nicht nur zeitlich sondern ihrem Wesen nach unbestimmt ist, denn sie entzieht sich jedem Gesetz und jeder Form rechtlicher Kontrolle. (Agamben 2004, 10)

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Illustration 5: Homines sacri in a todays Land of Nod: prisoners in Guantanamo Bay (www.janmarijnissen.nl/.../01/guantanamo_bay.jpg)

Above I argued already that law and theology have essential aspects in common. However, Agamben points out correctly that it is necessary to make a distinction between both, even though theological and ethical aspects are almost inextricable mixed up with juridical ones. Surprisingly, the most important reason for this distinction is not based on the separation of Church from State but on the fact that in the end both disciplines have their own quintessence. For ultimately law is -contrary to what many may expect- not about justice and truth, but about verdict. Het recht gaat het alleen maar om het vonnis, onafhankelijk van waarheid of gerechtigheid.5 This statement is proven by the example of an unjust verdict which is still legally valid. And this means that punishment is not a result of the verdict, but that the verdict itself is already punishment: not the acquittal proves someones innocence, but only the person without a verdict is innocent. Agamben emphasises at this point also the essential and often nerglected fact that ethics is not first about guilt and reponsibility, but about the good life. He puts the concepts of guilt and especially responsibility back into the history of Roman law. According to Agamben talking about guilt and responsibility means leaving the domain of ethics and entering the domain of law. The importance of this thoughts lies in the fact that he makes us aware again how Christian ethics over the centuries has got mixed up with Roman law. After all, Christianity and Roman law are originally from different cultures, and Jesus as we know Him from the gospels seemed more concerned about living ethics than about law systems. Moreover, in fact Jesus had to deal with two side by side existing law systems: Jewish and Roman. 6. From the retrospective By now it seems as if I have moved far away from the original biblical story about Cain and Abel. However, this is not really the case, for with Agambens thoughts in our mind we have some valuable elements to look critically at the current situation of punishing people. It shows that the old story about Cain has still a most relevant message and value for prison chaplains and government. In the last years we have witnessed massive changes in Dutch society and in Dutch criminal law in connection with crime and punishment. These changes in thinking and attitude seem to be based on a double focus: the possible threats of safety in society and the financial costs of crime fighting. The jurist Moerings calls this, analogous to the terminology of the sociologist Beck who speaks of a risk society, risk justice (Huisman 2006). This risk justice leads to an expansion of criminal law in diverse directions by making punishable more
5

Das Recht geht es ausschlielich um das Urteil, unabhngig von Wahrheit oder Gerechtigkeit. (Agamben 2003, 16)

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activities and by punishing earlier, heavier and longer. Likewise one can see changes in the fields of criminal investigation and process law based on a vague wish for an almost complete safety guarantee. However, such expansion is not without any risks. In this regard Cleiren states: () als we de ontwikkelingen op materieel en strafprocesrechtelijk terrein in onderling verband en wisselwerking bezien dan kunnen we vaststellen dat de overheid allereerst zichzelf een autonome positie heeft verschaft om ten opzichte van potentieel risicovolle burgers op te treden, en daarnaast expliciet een zelfstandig bij strafwetgeving erkend belang heeft aanvaard om de onderlinge veiligheid tussen burgers te beschermen. (Huisman e.a. 2006, 184) This means that high demands are made on the government but especially that the government claims big powers and pretentions. In this light one can point at the gathering of all kinds of data to improve criminal and security investigations, and risk profiling. At the same time it is unclear where this development leads to and what until now have been the results of all this data gathering. These developments implicate the danger of loosing the necessary checks and balances between human and civil rights on the one side and state intervention on the other side. And all this to protect society and the citizens. This kind of situation reminds one of what Agamben said about todays appealing to the state of emergency. Moreover, there is the danger that these demands and pretentions overcharge the law and the state. It can end up in arbitrariness and the loss of credibility of the law and the constitutional state. The recent especially by politicians proclaimed- states of emergency concerning several issues have in the meanwhile found their repercussions in the reality of criminal law and in detention circumstances in the Netherlands (f.i. several laws on terrorism, and very poor detention facilities for migrants without papers). Many of these laws seem to be the products of distress and suggest that Agamben is right. Although there is in the Netherlands no nomans-Land like Guantanamo Bay, the presence of people without papers and their detention on administrative -not criminal!- law runs the real risk to develop into a new Land of Nod: a situation or place in which people are left to the naked life and are roaming in society, not allowed but chased by the authorities. Being chased not because they did something wrong but because they are at the wrong place. Then the land of Nod turns into a Land of Not: a land with people who are not allowed to be at that place. Unlike the story of Cain who was guilty and was rightly sentenced to live in the land of Nod, we are talking in this case about innocent people sentenced by the sovereign to live in this new created land of Not, and who do not exist officially for the sovereign. In this land it is not clear anymore who can appeal to human rights, for how to appeal to these rights if one does not exist officially? Also with regard to people who as a suspect have got involved with criminal law Agamben seems to be right. For in Dutch society we can see an increasing importance of the verdict. In many cases the public opinion often stimulated by media attention- stays suspicious about the former suspect even after an acquittal. Because of the thought no smoke without fire many sentenced people are confronted with negative social consequences regardless the outcome of the verdict. Also other facts point to the conclusion that a verdict is becoming more important: one can see an increase in discord in regard of inflicted penalties and all kinds of private initiatives to monitor sentenced people, whether they were convicted guilty or not guilty. This last development is in many cases linked with verdicts related to (supposed) sexual or terrorist offences. It is defended with the argument that the public has the right and the government the duty- to be informed about possible threats of their safety. The intention of all this is to prevent what eventually could happen but without asking whether is this distrust is also a threat to community life. In brief, it seems less important whether one is guilty than that there is a verdict. The possible threat of safety has becomes the leading principle. In this context the answer to the biblical question Am I my brother's keeper? gets rather a cynical meaning, for to the verdict stays with the sentenced person as a not intended punishment. The innocent (?) threatened (?) neighborhood claims the role of

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guard/warder which is not the same role as the biblical keeper. In this kind of atmosphere there is not much place left for clemency or compassion. Conclusion The biblical story about Cain and Abel is part of the stories which for christians are directive for their way how to look at society. And it has still important directive values and truths for todays society: - The story clarifies that difference between people is part of life. The reason or cause for this difference can not always be explained. - Frustration caused by this difference is also part of life. However, man is not just a victim of this frustration but can resist its effects. - For man is a free, moral being with ratio en conscience; at the same time this makes man an imperfect (sinful) being. - Being imperfect means also being vulnerable. - The offending person as well as the offended person get Gods attention. - To hurt a persons deepest feelings by creating the image that the person is useless can have disastrous consequences. - Mans sovereignty is not absolute but relative, relational, and vulnerable. - Because man is not perfect, being human implicates at the same time becoming human, and man can change for better (or for worse). - The biblical question Am I my brothers keeper? is a question about relations: being human means being a fellow-human which is expressed in seeing and hearing the other. - Whatever the failure or sin (in the case of Cain murder and telling lies without remorse) every human being remains part of Gods creation. For the Holy One, blessed be His name, may punish people, He does not reject them.( Herzberg 1993,2: 311) - At the end the central message of this biblical story is to be the keeper of your weaker sister/brother. But who is the weaker is not a definitive, unchangeable fact. It can change: at one moment we are Abel, at the other we are Cain. This idea should make us humble and careful when judging others. In the light of the above mentioned it is clear that it is not ethical only to confront and to condemn people for their deeds without offering them hope and opportunities to change. Even a criminal is always more than just his crime. Without offering hope the criminal is definitively reduced to his criminal act. An approach without hope is at the end fatal for the criminal as well as for complete society. Because a life and a society without any place for hope, forgiveness or reconciliation is like hell. Prison chaplaincys context consists of serving God and until a certain level serving the government. Reminding the distinction Agamben made between law and theology/ethics prison chaplaincy should be orientated more towards God, theology and ethics than towards the government, the state and its law. However, this does not mean that cooperation between prison chaplaincy and (prison) government is impossible. But it means that prison chaplaincy can only fulfil its mission if it takes a critical position and function with regard to society and government and their attitude to sentenced fellow-people. Abel Herzberg, who survived the naked life in the Nazi-concentration camps, wrote in one of his articles the following story: A father had two sons. One was rich but childless, the other had a big family but was very poor. When the father died he bequeathed his property to his sons. Each got half of 11/13

it. The night before the funeral the rich son could not sleep. He thought: What my father did is not just. Im rich, my brother is poor, so he has to get more than I. I will move the landmarks, so that my brother will have a bigger piece of land than he has inherited. Also the poor brother could not sleep that night. He thought: What my father did is not just. I am blessed with many sons and daughters but what about my brother? Richness has to compensate his sorrow about having no children. I will move the landmarks, so that he will have a bigger piece of land than he has inherited. Both brothers got out of bed and went to do what they intended. They met at the borderline drawn by their father. They told their thoughts and embraced each other. (Herzberg 1996, 3: 421) This story is the opposite from the story about Cain and Abel. Herzberg presents this story as the legend of the genesis of Jerusalem, the city which in its name reflects that is wants to be the opposite of the land of Nod: a city of peace, a perfect home for people. This very same Herzberg witnesses in many of his writings that he knows by his experience in the concentration camps how naked and cruel the reality between people can be. This experience resulted in a fundamental insight: Look, there are good and evil people. But the good are not so good whether they have an evil spot and the evil ones are not so evil whether there is something good in them. (Herzberg 1993, 2: 468) And the God of Cain and Abel is more conscious about this reality than we may expect from society and the state government. References AGAMBEN, G. (2002)Homo sacer. Die Souvernitt der Macht und das nackte Leben. Frankfurt: Suhrkamp. ---------- (2003) Was von Auschwitz bleibt. Das Archiv und der Zeuge. Frankfurt: Suhrkamp. ---------- (2004) Ausnahmezustand. Frankfurt: Suhrkamp. BERMAN, H. (1974) The Interaction Of Law And Religion. New York: Abingdon Press. BOUHUIJS, K. & K. DEURLOO (1980) Dichter bij Genesis. Baarn: Ten Have. BURUMA, Y. (2004) Compassie en clementie in het strafrecht, 151-168 in: B. VAN STOKKOM (red) Straf en herstel. Ethische reflecties over sanctiedoeleinden. Den Haag: Boom. CARMICHAEL, C. (2001) The Divine In The Law, 27-44 in: R. ODAIR & A. LEWIS (eds) Law And Religion. Oxford: Oxford University Press. DREWERMANN, E. (1998) Jezus van Nazareth, Bevrijding tot vrede. Zoetermeer: Meinema. DRIJVERS, P. & P. SCHILLING (1988) Hoeder van mijn broeder? Ik?Het verhaal van Kan en Abel. Hilversum: Gooi en Sticht. FOQU, R. (1992) De ruimte van het recht. Arnhem: Gouda Quint. HERZBERG, A. (1993-1996) Verzameld werk, Dl. 2,3. Amsterdam: Querido. HUISMAN W., L. MOERINGS & G. SUURMOND (red) (2006) Veiligheid en recht. Nieuwe doelwitten en strategien. Den Haag: Boom. LASCARIS, A. (1993) Het soevereine slachtoffer. Een theologisch essay over geweld en onderdrukking. Baarn: Ten Have. MELLINKOFF, R. (1981) The Mark Of Cain. Berkeley etc.: University of California Press. MOBERLY, R. (2007) The Mark Of Cain. Revealed At Last?, Harvard Theological Review 100/1, 11-28. OUSSOREN, P. (20055) De Naardense Bijbel. Vught: Skandalon. SMITH, S. (2001) Law As A Religious Enterprise. Legal Interpretation And Scriptural Interpretation, 83-99 in: R. ODAIR & A. LEWIS (eds) Law And Religion. Oxford: Oxford University Press. WESTERMANN, C. (1974) Genesis 1-11. Neukirchen: Neukirchner Verlag. ---------- (1975) Kain und Abel, die biblische Erzhlung, 13-28 in: J. ILLIES (Hg.) Brudermord. Zum Mythos von Kain und Abel. Mnchen: Ksel Verlag. 12/13

---------- (1978) Theologie des Alten Testaments in Grundzgen. Gttingen: Vandenhoeck & Ruprecht. WOLDE, E. van (1997) Stories Of The Beginning. Genesis 1-11 And Other Creation Stories. Ridgefield: Morehouse Publishing.

Afbeelding 6: Het naakte leven?: Longstay TBS. (www.boomerang.nl)

Afbeelding 7: Only God Can Judge Me (bron onbekend)

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