“I would like to call a differend [différend] the case where the plaintiff is divested of the means to argue and becomes for that reason a victim. If the addressor, the addressee, and the sense of the testimony are neutralized, everything takes place as if there were no damages (No. 9). A case of differend between two parties takes place when the ‘regulation’ of the conflict that opposes them is done in the idiom of one of the parties while the wrong suffered by the other is not signified in that idiom.”
—Jean-François Lyotard, from “The Differend”
Lyotard’s term “differend” does not refer to a concrete, tangible thing; it refers to a situation. The situation is one where a plaintiff has lost the ability to state his case, or has had that ability taken from him. He is therefore a victim. If the plaintiff has no voice, he has no remedies because he cannot prove damages. Just as one cannot prove something happened if the proof no longer exists, so one cannot prove something happened if the proof depends upon the approval of another person or party denying or erasing the proof, or having the power to deny or erase the proof. Lyotard describes this situation in relation to power or authority. Because of the nature and function of power or authority, a person or group possessing power or authority can divest the plaintiff of a voice. This divestiture results in what Lyotard calls a “double bind” whereby the referent (“that about which one speaks”) is made invisible. A plaintiff who is wronged by the power or authority cannot attain justice if he has to bring his case before the same power or authority. As Lyotard explains, “It is in the nature of a victim not to be able to prove that one has been done a wrong. A plaintiff is someone who has incurred damages and who disposes of the means to prove it. One becomes a victim if one loses these means. One loses them, for example, if the author of the damages turns out directly or indirectly to be one’s judge.” Specifically, Lyotard uses the differend to describe the situation where victims of the Nazi gas chambers lack the voice to articulate their case in terms of proof because, among other things, the reality or referent is so traumatizing and tragic as to be ineffable.
If Entity A harms me in some way, and Entity A also represents the arbiter or judge before whom I must appeal for justice, Entity A can (and probably will) neutralize my testimony. That is why a State may tax its citizens. In effect, a State has the power or authority to do something—take a person’s earnings against his will and punish or threaten to punish him, by force if necessary, when he fails or refuses to yield his earnings—that a private person or party cannot do. When a private party demands money from a person, and threatens to use force against that person if he does not yield the money, the private party has committed theft. The difference between theft (an unauthorized taking by one who intends to deprive the other of some property) and taxation (an authorized taking by an institution that intends to deprive the other of some property) is the capacity or ability to sanction. The difference depends upon who controls the language: who has the power to privilege one form of signification over another and thus to define, determine, or obliterate the referent.
“Sanction” is a double-edged term: it can mean either to approve or to punish. Both significations apply to the State, which, in Lyotard’s words, “holds the monopoly on procedures for the establishment of reality.” (Note: Lyotard is not referring to any State, but to the “learned State,” a term he borrows from François Châtelet.) Sanction is implicated when a party is harmed, or alleges to have been harmed, whether by the State or by a private party. The State then resolves whether the harm, or the act causing the harm, is “sanctionable”—whether, that is, it receives State approval or condemnation. The State either validates [sanctions] the alleged harm (in which case the alleged harm officially is not a harm), or it condemns the alleged harm (in which case the alleged “harm” is officially constituted as a “harm”) and then punishes [sanctions] the one who caused the harm. In any case, the State sanctions; it enjoys the power to decide what the referent ought or ought not to be.
A harm is not the same as a wrong according to Lyotard’s paradigm (or anti-paradigm). Lyotard brackets the term “tort” beside the term “wrong” to suggest paired meanings. In American jurisprudence—I cannot and will not presume knowledge about jurisprudence in other cultures and jurisdictions—the term “tort” generally denotes harm against an individual (not against the state), the remedy for which lies in civil and not criminal law. The State punishes all crimes because the State deems crimes to be against it or against society writ large, not against individuals. That is why criminal cases bear the name State v. Individual. With torts, however, the State mediates between two parties suing each other. Tort cases bear the name Individual v. Individual. One who commits a tort is therefore not a criminal, but a tortfeasor. (Here I must put off discussion of corporations, which American law has granted personhood, as well as discussion of government entities or agencies, which, despite the doctrine of sovereign immunity, can be sued by individuals in many instances. I do not have the space to untangle these legal-language knots, which have been tied, untied, and retied for centuries.)
Lyotard defines a “wrong” or “tort” as a “damage [dommage] accompanied by the loss of the means to prove the damage.” “This is the case,” he adds, “if the victim is deprived of life, or of all his or her liberties, or of the freedom to make his or her ideas or opinions public, or simply of the right to testify to the damage, or even more simply if the testifying phrase is itself deprived of authority.” Lyotard’s conception of torts or wrongs seems far more devastating than the conception of torts passed down in American jurisprudence. According to Lyotard, the tort or wrong does not, as it generally does in American law, enable litigation or the protection of rights; rather, it is the complete negation of litigation or the complete denial of rights. The victim of a tort is rendered defenseless under Lyotard’s conception; the harm that a plaintiff alleges to have been visited upon him is completely erased. A wrong or tort, then, must be, for Lyotard, fatal to victims because either the plaintiff must be eliminated and thus unable to articulate his grievance, or the plantiff’s case (his voice) must be eliminated by being silenced or by being made ineffectual. In any case, the plaintiff is seemingly doomed from the start.
A long and needed project might explore whether Lyotard’s conception of a wrong elides “tort” with “crime” such that the distinction between public and private, state and individual, is blurred beyond recognition. If all tortious activity, like all crimes, is deemed an offense against the State, and if the State is the ultimate arbiter or judge with the power to sanction such activity, then the State secures for itself total control. It becomes, in short, totalitarian. Lyotard’s “differend” has implications for tort law: what it is and how it works. These implications need to be teased out.