Episode 10: Good night!
In this episode: In this last episode of Season 1, legal and political theorist Jon Goldberg-Hiller joins Cressida and Joshua to talk about what happens to the law at night. Is there a right to sleep? And are we legally responsible for things we do while we’re asleep? (22:04). Jon explains the history of ideas about sleeping kings, and why some law-makers manage the representation of their sleep. Or, “if it’s 3am in the White House, who do you want answering the phone?” (44:55). We end season 1 by overthinking insomnia (1:03:46). Good night!
Mentioned in this episode: Jonathan Goldberg-Hiller, Law By Night(2023); René Descartes, Meditations(1638, full text); judgment of the Supreme Court of Canada in R v. Parks (1992); judgment of the European Court of Human Rights in Hatton and others v. The United Kingdom (2003); judgment of the Supreme Court of India in the Ramlila Maidan incident (2012); John Locke, Essay Concerning Human Understanding (1690, full text); Daniel Dennett’s famous essay “Where Am I?” about personal identity; Hillary Clinton’s 2008 campaign ad video; Ernst Kantorowicz, The King’s Two Bodies (1957).
Transcript
Jon: 00:00
My insomnia was made much worse after Trump was re-elected.
Cressida: 00:05
Oh, I'm so sorry.
Jon: 00:07
You know, I was waking up in the middle of the night in terror and unable to go back to sleep. I mean, I cannot sleep very well. But I can be the kind of sleeper that learns something from the struggle and thinking about problems of sleep. But if you ask me, am I a good sleeper because I can fall asleep? No.
Cressida: 00:30
That's such a philosopher's answer.
Joshua: 00:58
Welcome to Sleep is the New Sex. Today we're talking to the American political theorist Jon Goldberg-Hiller about his book, Law By Night.
Cressida: 00:59
That's right. It's a great book, but a hard one. And so we're going to try and break it down a little bit and talk about its connection to sleep. There's lots about sleep in the book. And so while, of course, as we discussed, not everybody sleeps at night, like those two things don't map directly. I think there's a lot about sleep to learn from Jon. Jon, could you introduce yourself?
Jon: 01:23
Yeah, I'd be happy to. So I'm a professor of political science, and I'm a chair of the political science department at the University of Hawaii at Manoa. And I've been here for over 30 years.
Cressida: 01:38
Wow.
Jon: 01:38
I teach legal and political philosophy and also legal sociology to undergraduates and graduate students. And much of my writing throughout my career has really been on the significance of places of absence within modern law. So I've written on unions that boycott the labor law in British Columbia, people who argue against the civil rights of others, Native peoples who reject legal recognition, night. And my new project, which is to think about impunity. Also one of those kind of absent spaces.
Cressida: 02:23
Impunity, meaning just doing outrageous things and thinking you can get away with them.
Jon: 02:29
Well, knowing you can get away with them, and/or... getting away with them.
Cressida: 02:33
I think you've got some material.
Joshua: 02:43
So before we jump into talking about this book, I realize that we talk about the Enlightenment a lot. And I mean, in the university we talk about the Enlightenment a lot, but I'm thinking this might be a term that could use a bit more runway prepared before we start talking about it. So how would you define the Enlightenment in the context of...
Cressida: 03:08
I realized I set this up, I realized, but thanks!
Joshua: 03:12
That's like a small, a small question.
Cressida: 03:15
So you're right. A few times in the interview, John mentions the Enlightenment or Enlightenment values. He also says, this is sort of a thing a period in European history, the 1600s and the 1700s, let's say, rationality and science arguably replace superstition and religious dogma. And the idea of an individual as a rights bearer, as somebody who has certain things that are owed to them emerges. So the contrast would be think about feudal societies in which your self, who you are, is primarily defined by your status, whether you're a lord or a peasant, what work you do, whether you're a smith or a cooper, and so on. And so the idea that each person is distinctive by virtue of being human, although part of the backlash here is that not all humans count. But anyway, by virtue of being human, certain rights accrue to you, perhaps because you're rational, is an emergent idea that's at the foundation of democracy. So if we think Descartes wrote his Meditations in 1637, famously concluding, I think, therefore I am. So all certainty for Descartes comes from inside his own head, right? From his own thinking processes. I mean, there's God in there too, but we bring that in. We won't dwell on that. To the French Revolution in 1789. This is a kind of key period for changing how we think about what it is to be a human being.
Joshua: 04:56
Okay, that's a very good definition. I won't even say quick and dirty. Like I think that was that was...
Cressida: 05:02
I can feel the phone lines ringing already. People are like, it doesn't mean that. And it sucks.
Joshua: 05:08
It's one of those... you alluded to this already. It's not as fashionable to applaud the Enlightenment. I certainly hear it more in the context of maybe a misplaced confidence in our abilities to reason and make good informed decisions. But is there a strong connection or is there a clear, obvious connection that I'm missing between the Enlightenment and sleep?
Cressida: 05:37
I think, as we're going to say, the the problem is that the sleeping subject, and all human beings are at some point a sleeping subject, presents a problem for a belief in rationality as definitive of the human. So when you are asleep, you are not, to use Jon's term, "vigilant," and you're not exercising your rationality, you're not capable of being the kind of thinking thing that is the locus of rationality. So for the philosophers in the audience, if you read Descartes' Meditations, which I know many people do in 101 still, he talks a lot about sleep and how he can know that he's not asleep. How can he be sure that he's not being deceived by the evil demon, all of that thought experiment? But how can he know more prosaically that he's not asleep, in which case he could be dreaming? And the idea that the whole world, all of reality, or what we believe to be reality could be a dream is a really pervasive thought experiment in Western philosophy. And so the connection between being deceived, being wrong about the world, and being asleep goes quite deep. And so we need to know that we're awake because that's where we are capable of discovering the truth by exercising our cognitive powers, especially our power of rational thinking. Your latest book is Law by Night, and it's a fantastic book published in 2023, and it explores both the literal and the metaphorical connections between the law and the night. So, can you just explain to us in in straightforward terms what the book sets out to do?
Jon: 07:29
Maybe let me start with just an historical kind of point. In the European Middle Ages and in the Renaissance.
Cressida: 07:36
So we're going way, way back.
Jon: 07:38
Way back. Law acknowledged the importance of night. There were crimes that were only nocturnal crimes. There was the permission of extraordinary action after dark, such as killing an intruder after the sun sets. And that goes back to biblical times, actually. Sanctuary was denied for people who destroyed crops at night. Students, law students, were told not to study their law books at night. And contracts that were made after dark were very suspicious or void.
Cressida: 08:22
Wow.
Jon: 08:22
So, in that sense, night played kind of significant role in the law. Now, despite courts keeping kind of like bankers' hours, I mean they do close, right? Modern law expresses itself in enlightenment idioms. Legal rule is a sun that never sets. And in in law's attendant myths of being everywhere all the time, it has forgotten night and forgotten the sleeper. So what I set out to do with this book is to question these Enlightenment assumptions. And maybe this is like a project of endarkenment, or at least to think beyond enlightenment. And I asked what happens to our assumptions of law and justice if we explore whether night and darkness and blackness and sleep can be useful for thinking about authority, legal authority.
Cressida: 09:27
Yeah.
Jon: 09:27
And so I approach this in a number of different ways. I think through vigilante violence, which is often nocturnal, and the security techniques of the curfew, the conditions that are necessary for a right to sleep. I look at nocturnal politics and focus a lot on Take Back the Night marches. And then I also think about the problem of metaphor in the law. And night, I think, lends itself to this because night is not only a time, but it is often used along with its association with darkness and blackness, as a way of imagining legal norms. And trying to pull apart whether it's really night or just norms is something I've tried to do for a year and a half while I was writing this thing and thought, no, actually, it can't really be separated. So the book is not trying to like spread light into forgotten dark spaces.
Cressida: 10:36
So there's a lot there. Perhaps an obvious question is why are you on this podcast? Because one of the most obvious connections is between night and sleep, right? So it's obviously not the case that everybody only sleeps at night.
Jon: 10:53
No.
Cressida: 10:54
That those two things are somehow concurrent. But there is a connection there. I mean, most people do mostly sleep at night, although plenty of us are awake for a good portion of the night.
Jon: 11:05
Yeah.
Cressida: 11:05
And we do also sometimes sleep during during the day. So so what's the connection between night and sleep?
Jon: 11:13
Well, I obviously sometimes it's not enough. Not enough of a connection, right? And I mean that somewhat facetiously, but it's it's not always easy to sleep, nor is that always what one is trying to do at night.
Cressida: 11:28
Right.
Jon: 11:29
And I think that this connection is also often socially and politically constrained. Night is sometimes curfewed and made into a time for sleep.
Cressida: 11:42
Yeah.
Jon: 11:42
But the other thing is it's important to think as widely and sociologically as we can because it's not always the case that night is sleep for everybody. Certainly not the night watch, yeah, which is there to make sure you can sleep. Not the slave patrollers who are out trying to control the night. Certainly not by women who are abused by their partners who often deny sleep as a means of control, and not the prisoner, not the refugee, or or the one who is being tortured by you know, not being allowed to sleep.
Cressida: 12:24
Yeah.
Jon: 12:24
So I think of sleep as being a political project in a way, not just as something that's natural, right? And so sometimes night corresponds to this, and that for most of us I think it does, but for many it doesn't. And so I think of night both, well, metaphorically, narratively, as a time of danger, and the perception of danger impedes sleep. It's hard to sleep if we're afraid of something. And night is also a time of equality, in part because social differences are really less clear, and because we all share the need to sleep sometimes, and that creates a kind of moment of equality, but it's also a time of manufactured inequality, right? And that's sometimes so that some can sleep better knowing that they are watched by others. So I think that those links are really political and social.
Cressida: 13:28
The first chapter, chapter one of your book, is called Is There a Right to Sleep? And I think I've said to you before, I'm not sure that that is the question that the chapter answers. But nonetheless, that's what you've stuck with. So is there a right to sleep?
Jon: 13:44
Well, I this is probably the most complicated part of the book, and in my thinking.
Cressida: 13:48
Yippee!
Jon: 13:51
And I think that the answer to that is really complicated, right? So there is no right to sleep in our current conception of rights based on abstract and fictional persons. So John Locke, as early as 1690, in the Essay Concerning Human Understanding, argues that really it the person that the law is interested in is the responsible property-owning subject. And that that therefore excludes sleep and other forms of unconsciousness. One should not be responsible for what one does not know much about. And that is really, therefore, an abstract idea, right? That this person is artificial and in a sense, reason becomes abstracted from and made much more superior to other aspects of life. And as a consequence, night is an ignored public time and it's forgotten as is sleep. Sleep is relegated to some other place, often, certainly in the law. As a consequence, also self-help seems to dominate social narratives, and self-help is only expanded at night. Take care of yourself, lock the door, get inside. And it also helps think about continuity, right? Continuity dominates political narratives because of this fiction of this legal subject that just perpetuates itself. So I really set out to ask what you know under what conditions and with what theoretical apparatuses we could reimagine what a right to sleep could look like.
Cressida: 15:42
Yeah.
Jon: 15:43
And that's where I think that the complexity is there. Because I don't believe that there is a right to sleep under the current conception of Western law, but I also do think that it's possible to reimagine a certain kind of law based on a sleeper, a kind of vulnerable experience that is collective, not individual. And to think about what that might look like. And so, you know, one way of thinking about this is to say, well, rights are what we make them to be. Law is invented all the time by legal actors and by philosophers. And as Robert Cover pointed out a number of decades ago, judges have the job to kill these laws and this legal imagination. That's their main function. The main function is to make sure that law maintains a certain kind of narrow pathway. So trying to do it through the law is difficult to try to reimagine a right to sleep that's gonna stick. But I use two traditions to do that. One is political theology, and that for those who are not familiar is really the study of what happens to the divinity of the king. Once democratic authority predominates, there is a problem of the sleeping king. What happens when the king is asleep and the king is the law? So the implications for a king that has either died and is therefore temporarily not there, or who is asleep, or, and this links, I think, to your theme here, or is having sex.
Cressida: 17:40
Does the king stop being a king when he's having sex? That seems weird.
Jon: 17:44
Absolutely, he's engaged in something other than the law.
Cressida: 17:50
Or is he?
Jon: 17:52
Or is he, right? Yeah, so you know one of the great political theorists, Kantorowicz, argued in the late 1950s in a study of medieval political theory that this need for vigilant kings, kings who are somehow there even when dead, there when asleep, there when having sex, involves the creation of a second body, like the king's two bodies. And one of those bodies is mortal, it simply dies and is replaced, and the other one is enduring, it never dies. And he says, you know, this is the body corporate, and in Kantorowicz's words, this body never dies, is never underage, is never senile, is never sick, and is without sex. So you know, ultimately in this chapter, I use some of that thinking to say that what we do also have a second body in a democratic society, or maybe just post-kingly society as I'm now in a fascist state that's reproducing the medieval world. But that second body of ours is related to sleep. It's related to how we sleep. And that's one of the ways that this theme of political theology works into the argument. And the second thing I do is to rely on phenomenology. And that's I think surprising, right? You're a phenomenologist, and you've engaged with these ideas for a long time. But it's surprising because we're not really dealing with conscious experience. So instead, we're talking about the preparation for sleep. How do we prepare for sleep? And what do we owe to sleep? Is our consciousness dependent on sleep? And therefore, is sleep really more important than our consciousness as we think about the subject. And where the king is not there to keep watching over us, well, we do have the potential to watch over each other. And I try to draw the potential for a right to sleep from this place.
Cressida: 20:16
Yeah, that's an interesting point that you've ended on there, because if phenomenology is the philosophy of lived experience, then sleep presents a problem for it. And of course, lots of philosophers have been really interested in that. But in my work, I've been trying to think with you actually about what the significance is of these periods of suspended existence, are they continuations, but just of a different kind of myself? Do I sort of flicker in and out when I fall asleep and wake up? You know, am I a kind of basically an interrupted self? Is sleep a short death? Or is it actually part of the stream of consciousness, but just of a different kind? And how do I think about the things that I do when I'm asleep or the things that are done to me when I'm asleep? Because they seem to have a different relationship to my experience. So I I went to Princeton a few years ago to give a talk about this. And the great phenomenologist, Gayle Salomon, was my host. And at one point she turned to me as I was going to give the talk and she said, you know, this thing about sleep and phenomenology, it really is the hardest thing I can imagine that you've set yourself here to think about. And she said it very kindly, but I got this terrible feeling of like, oh shit. Someone who really, really knows their stuff thinks this is really hard. Oh no! So I do think it's very difficult to think about how sleep forms a part of our subjectivity because of this kind of this question about what it is and whether we're still there.
Joshua: 22:10
So we've been talking about this idea of human rights and what it could mean to say that there is a right to sleep. And that's the first big idea that we're going to dive into. We've also seen that the sleeper isn't the kind of person that typically has rights because while we're asleep, we don't have any of the qualities that allegedly made us into the rights bearers in the first place. We're not thinking, we're not rational, we're not accurately perceiving our surroundings, we're probably not in control of our bodies or our thoughts, and so on.
Cressida: 22:38
I was reminded that we could now revive your fantasy of lucid dreaming. You're like, I've always wanted to lucid dream. And I think the reason that that is, it's not just you. No, it's a thing.
Joshua: 22:51
There's an industry.
Cressida: 22:52
There's an industry that people want to do. It's for this reason, because it enables you to make your consciousness continuous or at least more continuous, because you don't dream all the time that you're asleep. So if you control your dreams, then there's somehow more of you, i.e., of your consciousness. That's that's right. Of course, we always want to be in control, right? We always want to be all of these things, like aware of the world, in control of our thoughts. And there's a whole philosophical tradition behind that. I think that this question of whether there's a right to sleep is not least a problem for the law. And so we talked in episode eight about how to think about harms done to people who are asleep, and maybe this conversation kind of helps us think about that again. But there's also a question about the state of mind and the legal responsibility that's carried by someone who does something while they are themselves sleeping or otherwise not themselves, which raises a philosophical question about what kind of subjects we are while we're asleep.
Joshua: 23:56
Yes. And so I'm gonna read a short description of a Canadian legal case, RV Parks 1992. And I'm very excited to come back to this one. Once upon a time, I thought I was going to be a lawyer, and so I took away. Yes. A very...
Cressida: 24:14
You still could be.
Joshua: 24:14
Well, that's true. The dream's not dead yet.
Cressida: 24:17
Yeah. Yeah. It's a bad thing to say to a PhD student, maybe.
Joshua: 24:20
Yeah, don't yeah. Don't put all those eggs in one basket. Maybe leave one egg for the law basket still. I think it's a very common path for political science students.
Cressida: 24:33
Yes, and philosophy.
Joshua: 24:34
Yeah. Yeah, and and philosophy. But so I took this like high school "what is law?" class, which was very good, but I remember getting to this case and it just like sticking. And my class in general was like, oh, that's so such a weird case. So I'll read it out here. This is a quote from that case. "In the early morning of May 24th, 1987, Kenneth Parks drove 20 kilometers from Pickering, Ontario, to the house of his in-laws in Scarborough, Ontario. He entered their house with the key they had previously given him and used a tire iron to bludgeon his mother-in-law to death. He then turned on his father-in-law, attempting unsuccessfully to choke him to death. Covered with blood, Parks got back in his car and drove straight to a nearby police station and confessed, turning himself in, stating, I think I have just killed two people. At trial, Parks argued that he was automatistic and not criminally liable. In his defense, a doctor testified as to his mental state at the time of the murder. From the doctor's evidence, it was determined that the accused was sleepwalking at the time of the incident, and that he was suffering from a disorder of sleep rather than neurological, psychiatric, or other illness. Five neurological experts also confirmed that he was sleepwalking during the time of the incident. The jury acquitted Parks."
Cressida: 26:02
Yikes. Yeah, that's a famous Canadian case. There are quite a few other such cases of people who were variously found guilty or not guilty of acts of violence, as well as well as less serious kinds of actions while they are allegedly sleepwalking. And they do raise interesting questions about mens rea or or intentional state of mind. Like if you were asleep, as in this case, then you can't be held legally responsible because you're not yourself. You're not thinking, I'm going to go and kill my in-laws. You're not thinking anything. You might be dreaming. Like people who do strange things while they're sleepwalking often have prior sleep disorders and will report that they construct dreamlike stories about what it is that they actually did while they were asleep. So most people, of course, don't go out and commit acts of violence against members of their family, but lots of people manifest those sleep disorders through doing things like walking around their own houses or going to the fridge and eating things that they don't remember, or you know, whatever it might be.
Joshua: 27:16
Start fight clubs.
Cressida: 27:17
Start fight.... Good one. Thanks. Yeah. So yeah, so that's an interesting philosophical question. What are we responsible for while we're asleep? And if you had been a lawyer, you would have had to confront the question of how do you prove that you're asleep? How do you prove your mens rea when you don't have one, right? Really, when you're asleep.
Joshua: 27:40
That's actually part of what would still appeal to me about a lot. Yeah, that's such a fascinating question.
Cressida: 27:52
So just just going back a little for a moment here, you referenced Locke. And you know, I'll tell you a little story. I when I had my first job, it was at Michigan State, Go Spartans!, which is a great football school. And I taught philosophy 101 and I taught it on personal identity. That was the theme. And one of the questions I asked the students was on this this issue of continuity of the person, right? Because we all change as we get older. Are we the same person? And then all of these, you know, Daniel Dennett kind of thought experiments where it's like your brain is in someone else's body, and now your brain's a computer, and now there is no body at all. Like it was all of this, you know, let's work through these matrix-like experiments. And, we did read a tiny little bit of Locke, and it's the part where he talks about how if you have no memory of something you did, then you can't be held responsible for it. And it was just at the time that there were all these big football games and the tailgating had gone a bit sour. And so there were there were for no reason other than alcohol and football, there were these enormous riots in the streets of East Lansing, Michigan. My many, many students who were very drunk. And several of my students commented that they had no memory of what they had done during these riots, and yet they were nonetheless being pursued by the police, or at least they knew people of whom this was true. And so that was the best discussion I think I ever had at Michigan State was if you got drunk tailgating and you set a cop car on fire or some other, you know, kind of mischief, could you be held responsible for it? And I think it just demonstrates how compelling that question is. You know, in this case, the question was drunk, but of course the question comes up with sleep.
Jon: 29:51
Yeah.
Cressida: 29:52
So do you have anything to say about that? Like people who people who commit crimes, for example, while they're asleep.
Jon: 29:58
Right. So people who commit crimes have an affirmative defense. That is to say, I was unconscious. And that has been successful in cases of rape and murder and homicide. It's not automatic, but it's affirmative. You have to be able to prove that this is what happened. And that is a way of escaping responsibility.
Cressida: 30:21
Yeah.
Jon: 30:22
But there's also something that kind of parallels this, with which I think is one of the problems that I try to get at in the book. The issue of being you know unconscious and saying, well, let's forget that, tends to make us emphasize those moments when we reconstitute reality. We wake up and we say, Oh, I'm the same person, this is the same place, I went to sleep, I'm now in the same world. And what has happened at night is therefore kind of flushed. And it's it's not significant. And we really emphasize not that place of disappearing, right? And I think a lot of your work has helped me think through this, but really that that moment of saying, well, I'm back, right? I'm here. And that takes place also in the political world, right? So that what happens at night is often privatized, it's made unexceptional, and it's the reconstituting of legal reality once the sun is up, as though nothing ever happened, that is you know a major way that certain kinds of projects of domination are justified. That vigilantism at night is seen as a private problem or unimportant or doesn't really that you know like that's not the central thing that's going on, even though in many cases, such as slavery, it is the central thing that that is going on.
Cressida: 31:55
Can you tell us what you mean by vigilantism and give us an example of impunity at night?
Jon: 32:02
Well, you know, there's a couple ways of looking at this. One is to think about private vigilantes. And the KKK is a good example in the United States. So this was a white supremacy organization that was dedicated to maintaining control over people of color after the Civil War. And they operated in some interesting ways of plausible denial, for instance, of saying, no, no, no, there's nothing going on, right? Even though they were terrorizing people. And it's all a myth, right? You can't point to anything, it's all in the dark. What do you know? And that's a form of impunity that they were able to use. And then later, of course, they they were less secretive, and that kind of impunity for that type of violence was more built into you know more open norms. But it's also the case that states do vigilante violence and organize it in some ways. And maybe the the the clearest example in my head is that of the patrollers of the enslaved in the United States. And they only had duties at night. The patrollers had no authority when the sun was up, and all the authority when the sun was down. And they were immunized from all sorts of things, right? They didn't have to pay taxes, they were not required to vote. They they had other ways of simply escaping other civic duties, in part because what they did was dirty, right? It was, first of all, work at night, it was violent work at night. Under Republican norms in the early part of the 19th century in the United States, politics was open, right? It was something that you were proud to show everybody. So all of these activities at night were, in a sense, cordoned off. Patrollers could not be held liable for anything that they did, even the violation of property in all kinds of ways, whether it was rape of the enslaved or beatings or killings of the enslaved in order to create a sufficient terror. They weren't held responsible. And then this Republican world just kind of wakes up as the sun is up and can talk about its norms in that way.
Joshua: 34:43
I'm still struggling with this idea that we have different rights at night, or that we might have different rights at night, at least fewer rights. Or even that sometimes the night is a time outside the law and that you can have all kinds of corrupt, dirty work done at night that you can't have done during the day.
Cressida: 35:02
Mm-hmm. Yeah, I mean, part of me thinks it's just a kind of expedient thinking, you know, like it's just a way of of rationalizing why you might do all of those corrupt things because you think you're more likely to get away with it because it's dark. But I do think that to put it a little bit more philosophically, just as we've said that some people don't get the rights that they've been proclaimed to have, right? This is the most common critique of all of these declarations of human rights, is that clearly they are not supported for the majority of the world's people, and including the whole global south in many respects, but also sub-populations of people who are solidly within the countries, the nation-states that have the most robust human rights declarations. Or there are certain places, whole parts of the world where those rights don't pertain. And so there's a third critique here, which is that rights maybe sometimes don't apply at particular times. So there's a third category of injustice here. It's people, it's place, and it's time.
Joshua: 36:04
Okay. So I see how there's this connection between how the law functions at night and what it means to say that we have a right to sleep. And Jon talks about how two different examples kind of demonstrate that. One is this British case involving whether airplanes could take off and land 24-7, keeping people in the flight path awake. And the other is an Indian case involving whether a crowd had a right to gather for an extended time and sleep in a public square.
Cressida: 36:38
The first case is the Hatton case, which we can't give a year to it because it went through so many different stages and levels of the legal system. But in the 1990s, there was an appeal by a citizen, later a group of citizens, I think, who who objected to being in the flight path of a new runway at Heathrow Airport. It's an enormous teeming airport. So it does kind of absorb a huge amount of real estate, Heathrow, and it has so many different flight paths that it does affect a large number of people. But but the Hatton case involved somebody saying, I can't sleep because of these airplanes. So what happened?
Jon: 37:20
Let me say I you know, I I looked at this case in part because, well, the judges got very close to saying there was a right to sleep.
Cressida: 37:27
Yeah.
Jon: 37:27
And in fact, they did at one point. So in the UK courts, the first ruling was that there was a violation here of the Civil Aviation Act. And I think that that was the technical thing. And then, as you say, it just kept revolving, right? So that was reversed in the Court of Appeal, the Lords dismissed it. Then it was appealed up to the European Court of Human Rights. And there there was a ruling that came very close to a right to sleep saying that you know, under Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, that this violated privacy. Having planes that were landing early in the morning kept people awake, was not good for their health. Later it was pointed out, this time in the descent, it also interfered with their sexual life. So here's another connection between sleep and sex. And their health had to be protected. Now, eventually, in a further appeal, and this is it's like a shaggy dog story, but in a further appeal, this was reversed. And the idea really was quashed at that point. Now, there are some interesting things about it, and then there's some interesting problems too, because to say that sleep is part of one's right to privacy and rights to health makes some sense. It certainly seems to be the case and you know for for most people, but it's also limited to those who had a house. And that didn't seem to play much of a role in the thinking of the court because the final majority said, well, you know, these people could just sell their house, right? So, you know, what what what are we really talking about? It can't it can't be such an important right that the airport has to be shut down in the early mornings. But I think philosophically that's also important, right? Yeah, that if you say that this kind of privacy is tied into dwellings, well, it means nothing for the houseless. And in fact, makes them more of a danger to the sleeper in the house. So there is there's a kind of limit, I think, to trying to think through this right to sleep through liberal arguments and biopolitical arguments about health that simply doesn't carry us very far. So I was hunting around to see if other courts had come said anything else, and I found a case from India in 2012 that to me had a lot more promise, at least philosophically, because how this gets integrated into law is a that's a difficult thing because law, Western law simply doesn't have this place for a sleeper that's very easy. And this case was the Ramlila Maidan case, and it involved an attack in 2011 by the police at midnight on a very large sleeping crowd of people who had gathered for a kind of yoga conference, if you will. And the police got angry because the guru decided to make it into a political thing and started a fast as protest, and they decided that was intolerable. And so they killed one of the people who were asleep, and they injured many, most of whom were women and children, which is also significant in a way, right? These figures that should be protected, you know, even in this kind of patriarchal imagination, right? But one of the justices who ruled against the police said that this violated the rights, and then he said the rights of a sleeping crowd.
Cressida: 41:43
Yeah, cool. Cool. The rights of a sleeping crowd.
Jon: 41:47
And this fascinated me because it's it's not like the individual right of a sleeper, it violated a kind of collective right. And he said, look, the problem is that there is no mens rea, right? And in in legal language, that means motive, right? Conscious motive for individual sleepers. And he said, you know, the individual sleeper is like a dead person, half alive, half dead, certainly not a legal subject. I mean, not somebody who could say, hey, my rights, right, without waking up. Uh and he talked about how sleep was like in the Hatton case, essential for life and the like. But ultimately, by imagining this sleeping crowd as the legal subject, I think he opened this incredibly important space. Because you know, what I try to do in the chapter is to say sleep is not an individual thing. It's a collective thing. It's something that's organized, it's something that's political and can be made such, right? We can look at the kinds of arrangements that we have. Uh and so these sleepers who are sleeping together are, in a sense, persons in relation. They're not individual, abstract, reasoned beings, because they have no reason when they're asleep, but they do have a relation that this justice wanted to embrace.
Cressida: 43:22
Yeah. And that's why the Hatton case is so different, because those are individual people in their individual houses whose individual rights need to be protected. They're not a sleeping crowd. But but this is a group of people who are explicitly there to be a group. Right. And as they sleep together, they lose their individuality, but not maybe thereby their subjectivity or their collective subjectivity, if we want to say that.
Jon: 43:50
Yeah. So we put the police in, and then you know, the police were admonished, they lost the case. And what comes out of that is a sense that police have to respect people who are sleeping.
Cressida: 44:02
Yeah.
Jon: 44:02
But but I think that as I began to think about that case more and more, I realized there's some there's something there, right? There's something there that can teach all of us. That is the place from which to think about law.
Cressida: 44:17
Yeah.
Jon: 44:18
That's what I what I meant by, you know, is there a right to sleep? Well, if so, it's just not the way we think about rights. Right. To get to that place, the consequences would be vast. Not only thinking about the sleeper, but thinking about all other forms of vulnerability and the kinds of responsibilities that we have. Not just that the state has, but these persons in relation to our rights are really caught up with our responsibilities to other people.
Cressida: 45:03
So listeners might have forgotten, because we talked about it a while ago, that earlier in the episode, Jon talked about an intellectual tradition that he called political theology. Can you remind us what that is?
Joshua: 45:15
Yeah, I can try. It's I think a bit of a slippery concept. And it's slippery because I think you could define it two ways. And I when I was in my master's, I had to do this research project on this topic.
Cressida: 45:30
You're amazing. You've done a research project on everything.
Joshua: 45:32
Almost everything. And yet nothing...
Cressida: 45:35
misspent youth
Joshua: 45:36
...useful. But like certainly nothing that would help me in normal conversations, I'll say. This is your moment. This is my moment. So I'm gonna pull out my research on political theology to say that like it's confusing because it could be defined as the way different religions and different theological systems interact with politics. That's sort of one way of looking at it. But then the other way is this much more complicated analysis of what happens when previously religious understandings of politics get translated into secular terms. So the king's right to rule is kind of banked by a god who has given the king the right to rule. And once those societies secularize, the way that we understand power sometimes carries over some of the meanings from that formerly theological way of understanding politics and political theology is trying to show how those remnants kind of get misplaced into contemporary secular democracies.
Cressida: 46:55
Yeah. So the slightly odd idea that Jon talked about was the struggle to think about how a powerful leader, like, as you say, a king, whose right to rule at one point in medieval theology was God-given, right? The divine right of kings, can be ruling all the time. And it's because kings are mortal. You know, they start as babies, they're children, and there's all of these instances in history of children finding themselves on the throne, right?
Joshua: 47:24
Right.
Cressida: 47:25
Because somebody died unexpectedly. And what do you do, right, when this person who clearly isn't fit for the job inherits the job? Or if they're lucky, they become old, and possibly demented, not thinking of any examples in particular, or just infirm, right?
Joshua: 47:42
Right.
Cressida: 47:43
They get sick in body and mind. And especially in medieval times, we're talking about all sorts of terrible, incurable illnesses, right? People got sick, seriously sick much more. And of course, they die. All human beings die. So kings inevitably are mortal and human and exhibit these kinds of failures that might make us think, well, is this really God's representative on earth? Because they seem to be kind of, you know, crapping out in various ways. And maybe the most common and unavoidable example, although it's not very often raised, is that they sleep. So it's such an ordinary mortal thing to sleep, but it involves ceasing to function as an executive. You come in and out of consciousness, and you don't, you're not executing the law while you're asleep. So in medieval times, a sort of fable was invented to do with the king having two bodies: an ordinary human, corporal body, regular body, and a sort of political body, an embodiment of the law.
Joshua: 48:55
And one of the things that we talked about was how this fable of the king's two bodies keeps reoccurring in contemporary contexts. So this would include political leaders who have to do sort of image control with their relationship to sleep or sickness or anything that would have them be absent or fallible because the law, because sovereignty and sovereign power is supposed to be infallible, is supposed to be always awake, constantly vigilant. So you have these odd cases of leaders who try very, very hard to evoke this image of tirelessness, of always working, of you know, not needing sleep, not even needing, or not being at risk to disease, even.
Cressida: 49:49
Yeah, yeah. It's I mean, it's a very ableist way of thinking, but it's also so ableist that in a way it's anti-human, you know, it's against what it is to be a human being. But what we're explaining here in a way is that the more absolute you consider your power to be as a political leader, the more incentive you have to push this public image. I think there really is a whole episode in here for season two about how political leaders or leaders of any kind really today represent themselves as sleeping or not sleeping. And what this discussion shows is that the more of an autocrat you are, the more king-like you believe yourself to be, the more you have to push this public image that you are somebody who never sleeps, because you get back into the problem of being, you know, the law blinks out because you fell asleep. And as we think through what it means to be a leader of a democracy, for example, alleged democracies as well as, you know, things that we agree are still democracies, then, you know, if you're a democratic socialist, you have a reason to say, I'm part of a collective. It doesn't matter if I'm asleep because there's someone else on my team who's at the helm. But if you're acting like a king, then it's really difficult to say, well, you know, I sleep, because then you cease to exist. So the executive function, the law, ceases to exist.
Joshua: 51:24
Yeah, there's this way in which if we are talking about more collective governance, fallibility of the person is less of an issue because you are offloading the responsibility of governing, as you should in a social democracy, onto many different people. But as you kind of shift into more and more importance being placed on the leader, I think you do see this concentration of image control as well. And of course, the opposite of this sort of like collective form of governing would be fascism. And fascism is characterized by this idolizing of the leader, of the leader's body, especially, and the leader's health and vitality. And so we talk about this idea and how it creates challenges of authority through to the present day.
Cressida: 52:19
Yeah, so we've monarchy has moved through democracy, and democracies are arguably moving back to something else. But the thing they're moving back to is a little bit of monarchy because political theology, but it's mostly fascism--what we as political theorists would call the political system called fascism. And I just want to say that one of our examples in the interview is Donald Trump. And we recorded the interview with Jon some months ago, but I feel a little bit vindicated. Because even in the short time since we recorded, it's become a bit dated. This narrative about how hard Trump works and how little he sleeps, which was really pushed quite heavily last year, 2025, has slipped quite a bit. And he's been photographed recently several times snoozing in very public meetings or ceremonies. And there's a lot of chatter about his mental state, his advancing age and so on. And I do think that it's kind of an occupational hazard of the kind of autocratic or fascistic leadership style that he has developed, that when your body starts to slip, even something as facile as, you know, he fell asleep in that meeting, it's easy for people to read that as your power also slipping. And so for a man who is aging, very visibly aging, it's a very difficult game to play.
Joshua: 53:47
Yeah. And of course, the other side to that is the effort that you see to reject any sort of fallibility, right? That he isn't really sleeping, or that he's actually much healthier than he seems to be, or he's much more mentally acute than he seems to be. It's impossible to recognize that he might need to sleep more, that he might be aging, all these things, because that would undermine the narrative that he is, you know, this hardworking, constantly working, alert, healthy individual.
Cressida: 54:21
It is very medieval. Like there's lots of historical examples of kings becoming terribly ill, and the entire court springs into action to prop them up to make sure that nobody realizes that the king is infirm, has lost his mind, is not fit to rule. But, you know, what else are you going to do? And it's really difficult in the age of the internet to prop up the king in this 24-7 media cycle with paparazzi, with constant news pressers, you know. So it's it's harder than it was in medieval times to sustain that image.
Joshua: 55:01
That's right.
Cressida: 55:02
Because the camera's always there.
Joshua: 55:04
But so is AI.
Cressida: 55:07
Thank heavens for AI. So we can we can keep an image somehow. There's a book to write here. There's a book to write here about the return of political theology, sleep, yes, the king and the and the fascist leader.
Joshua: 55:20
The emperor's new AI.
Cressida: 55:23
The Emperor's New Naps.
Joshua: 55:24
The Emperor's New Naps.
Cressida: 55:26
Yeah. So when I was preparing for this interview, I was just I I've been writing a paper about sleep and work, and it's got some examples, some very recent examples of Elon Musk and Donald Trump both talking about how they never sleep, which in the case of Musk I find compelling, but only because you know he's taking a bucket of cocaine every day or something, right? It's not... there's nothing good there. But in the case of Trump, I find it sort of implausible that this bumbling guy who likes his golf isn't having naps. But he's very consistent about representing himself as not sleeping, as being vigilant, as having a very powerful work ethic, we might say, that he's awake all the time doing stuff, getting stuff done, and that his opponents are very sleepy. So Sleepy Joe. I found a campaign rally where Trump talks about how hard he works and how little he sleeps while Hillary Clinton is asleep all the time, allegedly. And, you know, by contrast, though you cite it in your book, there's this campaign ad from 2008. Let's have a listen to that ad right now.
Campaign ad voiceover [deep, authoritative]: 56:46
It's 3 a.m. and your children are safe and asleep. But there's a phone in the White House and it's ringing. Something's happening in the world. Your vote will decide who answers that call. Whether it's someone who already knows the world's leaders, knows the military, someone tested and ready to lead in a dangerous world. It's 3 a.m. and your children are safe and asleep. Who do you want answering the phone?
Hillary Clinton: 57:13
I'm Hillary Clinton and I approve this message.
Jon: 57:17
Yeah, well, I mean I think that this is a pretty good example of why political theology is so interesting, right? I mean, there are things that travel from medieval times into current times. And if we look at the medieval king, the assumption was that the king's living body was the law. So the idea of lex animata is the idea that it's that body which is the law. This made the problem, obviously, of the king who's dead, asleep, or sexually engaged so significant because where is the law at those moments?
Cressida: 57:56
Yeah.
Jon: 57:57
So this giant myth was was built up around this, and it's not just in the West. I mean, we find this in Japan and in China, often when the emperor would go to sleep, giant effigies of the emperor will put outside the sleeping chamber as though, hey, it's still there and the eyes are open. And so it travels to this day in lots of ways. Sometimes it's not just through authority, though. And this is where I think it's getting significant that it's coming back to a particular body. But there are forms of surveillance, you know, the idea that there are satellites up there all the time looking out for you, giant eyes in the sky, other forms that government uses, forms of security that give you not only a sense that it can dominate the enemy, but that you are safe enough to sleep. And sometimes just written small, like there are police out there and they're gonna stop burglars or at least try to stop burglars, so get some sleep. And for some who live in gated communities, there's private police who you know check everything out every half hour, like the old night watch. And that's a way of trying to build this sense that, well, security never is gone, right? It is never, never asleep. And so this this idea of authority as being beyond sleep, as being protected and continuous is important. So, one of the things that I've I wanted to think about is well, what about fascism?
Cressida: 59:40
Yes, that's a good question, Jon.
Jon: 59:42
Yeah. So the United States, we are in our fascist moments here.
Cressida: 59:48
Yeah.
Jon: 59:49
Hopefully, I will not get taken away for saying that. But the Fuehrer's body is the source of law. And we see this certainly in the way that vitality becomes vitally important. So whether it's looking at dictators like Putin who walks around without his shirt, to show people his muscles,
Cressida: 01:00:14
Ew.
Jon: 01:00:14
Or Trump who does not either, right? This is part of a kind of what I'm gonna call a fascist imagination.
Cressida: 01:00:24
Yeah.
Jon: 01:00:25
And the more that that comes back to a body, the particular body, that body who's in control, that begins to reproduce this older idea of that body being the law.
Cressida: 01:00:38
Yeah.
Jon: 01:00:39
So Trump has a habit of you know writing a new executive order every 27 minutes. And that certainly has a technology behind it. It's designed to build quiescence. And as I just glanced at the New York Times right before I came on with you, the headline is that the National Guard has just been put in control of Washington, D.C. This is you know, all by command of the sovereign, if you will, without any other intermediary bodies. And so that it's different in a way, right? Even Hillary tries to do that and can't succeed. And maybe part of that is because she's a woman. Perhaps it's part of the ways that Trump attacked her for being a woman. But that idea of having a body that is so capable of containing the law, right? Of being the law, and of being security, seems to be important again today.
Cressida: 01:01:44
That seems right. And I mean, I think I I have to really rejig my intro to political theory course because it does sort of contain this tacit narrative that let's think about power and let's think about the classic sort of distinction between sovereign and disciplinary power. And we often encourage students to think about power as having moved away from being held in the hands of a central agent and to being kind of diffuse and hard to pinpoint and operating in multivalent ways, comes from lots of places, operates through lots of vectors of force. And surveillance studies is a classic area of that sort of thinking about power, right? That everybody is surveilling everybody else, and it's very hard to say where the power is coming from or what its objectives are, but you can often see its effects. So you measure power by what it does, if nothing else. And we teach all that stuff, and now we have to sort of think, well, let's go right back to you know killing the king and being punished and the king's body as the locus of power. I think that that's right. That Trump, I mean, when he said I could walk down whatever Park Avenue and kill somebody, I mean, on the one hand, it's it's a kind of insane hubris, but on the other hand, it's an embodiment of what you've just said.
Jon: 01:03:04
Yeah.
Cressida: 01:03:04
That he is the law. So it's not murder if he does it.
Jon: 01:03:08
That's right.
Cressida: 01:03:09
It's, you know, it's what he wants to do for some justified reason because he's because he's now the law.
Jon: 01:03:15
Yeah, or unjustified, right?
Joshua: 01:03:33
Well, we've covered a lot of ground today, so we'll wrap up. But let's leave listeners with a last reflection on what it means to describe oneself as a good sleeper.
Cressida: 01:03:45
Are you a good sleeper, Jon?
Jon: 01:03:48
Oh my word, what a question.
Cressida: 01:03:52
You don't have to answer it, but it's always funny. It's always funny when people do.
Jon: 01:03:56
No, I am gonna answer it.
Cressida: 01:03:57
Good.
Jon: 01:03:58
So, but first I want to say that I I'm thinking a little bit about Foucault's admonition about the repression of sexuality.
Cressida: 01:04:07
Oh, an incitement to discourse. Is that what you're saying? We are doing nothing on Sleep is the New Sex, if not inciting to discourse about sleep!
Jon: 01:04:17
Yes, so Foucault says that that sex becomes a form of preaching. They use the language of preaching. And so I'm wondering if I can do this without preaching. So, what is my story? And can I put it can I put into words? I thought about this, right? Can I put it into words without preaching?
Cressida: 01:04:37
I shouldn't have given you the questions ahead of time. Now you're just overthinking!
Jon: 01:04:42
I know, but it was interesting to do this, right? So can I put it into words without becoming like you know, the Enlightenment, this need to speak truths about myself and my sleeping. So without really trying to be too dramatic, this book is my sleep story. I really tried to put into words my own agony, and at times my obsession with sleep and with a desire to recognize that sleep is really delinguistified.
Cressida: 01:05:15
Yeah.
Jon: 01:05:16
You don't get to talk asleep. And so it cannot speak for itself. And so to ask me if I'm a good sleeper, I have to imagine myself as the sleeper because I can't speak as the sleeper, too, even. So I think there's experiences of sleep that really can't fit into any sleep story. I can talk about them, but I can't really talk in them. And one is insomnia.
Cressida: 01:05:41
Oh, yeah.
Jon: 01:05:41
And insomnia is something I've struggled with for many, many years, but my insomnia was made much worse after Trump was reelected. I was waking up in the middle of the night in terror and unable to go back to sleep. And the other thing about insomnia is that you know there really are experiences of vulnerability and ethics that can come from experiencing insomnia. Not just the idea of insomnia, but actually in the experience. So you know if I'm a good or a bad sleeper, perhaps it's really only due to the kinds of ethical lessons that I've learned from sleep difficulty for me. I mean I cannot sleep very well. And so I try to make that into being a good sleeper. I can be the kind of sleeper that learns something from the struggle. Learn something about ethics. Learn something about politics learn something about writing. Try to be a good sleeper in that way. Try to be morally good in thinking problems of sleep. But if you ask me am I a good sleeper because I can fall asleep? No.
Cressida: 01:06:58
I can't get to sleep. But I'm gonna have a really good think about why!
Cressida: 01:07:07
So that's all for today. Thanks for listening to Sleep is the New Sex and this is the end of our first season.
Joshua: 01:07:15
I would like to say thank you to everybody who has continued listening, just started listening, has been listening for the first episode, jumped in halfway. If you have listened to an episode, thank you so much for listening to this and for journeying with us through our podcast journey. I especially wanted to thank my friends and family who jumped in just to hear what I was doing and where I was at in the PhD and then who continued listening and continue to send me feedback about the episodes that they found most interesting. It has been so fun to see how like this project has gone out and to hear people talking about it and hear their thoughts on you know the way we talk about sleep and stories has been really really interesting and really fun. So thank you. And then of course thank you Cressida and
Cressida: 01:08:14
you're welcome
Joshua: 01:08:15
thank you for including me in this project and for sharing the co-host studio with me. And I think it's worth noting that when I was just starting to look at where I was going to plop down to do a PhD and I began looking at the University of Alberta it was a a podcast that will remain unnamed because we don't do free publicity.
Cressida: 01:08:43
Harsh but fair.
Joshua: 01:08:47
Yep but you were on that podcast and you gave this phenomenal interview and I thought to myself that sounds like a pretty good department to me. And now to be sitting in the studio with you is an amazing arc to my journey. So thank you for this and of course always thank you Tom for the incredible work that you've done editing this. Listeners will never know how off topic and how rabbit -traily I can be because Tom has done such a good job of carving out the best parts of what I say. So thank you Tom.
Cressida: 01:09:23
And I'd like to take this opportunity to thank a very long list of people who made the podcast possible. For technical, artistic, and promotional support my thanks to colleagues Winston Pi, Marcy Whitecotton-Carroll and Geoff McMaster; the College of Social Sciences and Humanities at the University of Alberta, especially Nico Arnez, Oliver Rossier, and Temitope Oriola; Samantha Brennan at Fit is a Feminist Issue; and Amanda Schutz and everybody at Curio Studio. For financial and in-kind support that made season one possible, thanks to the support for the Advancement of Scholarship Fund in the Faculty of Arts, the Kuhl Institute for Advanced Study, the Office of the Vice-President Research, and the Department of Political Science. Big thanks to all our guests who were so generous with their time and ideas. And for podcasting advice and feedback on the pod, Amy Kaler, Margaret Lair, Jonathan Leggo, Mike O'Driscoll, Kristin Rodier and Heather Young-Leslie and everyone else who's emailed, texted, posted, WhatsApped and buttonholed me to make suggestions or share ideas. And of course our producer Tom Merklinger and my co-host Joshua Ayer. So it's not that common for a philosopher and political theorist to work as a team. I co-author things fairly often, but the idea that you would sit down and have regular in-person meetings with people where you talk about ideas and our discussion of ideas has been very free-flowing and wide ranging, I think it's safe to say. And what you get to listen to is just a tiny little snippet of what we've actually talked about. It's really difficult to jump into somebody else's research project as well. I've been doing work on sleep for a long time, but Joshua and Tom have not. And so they have had to kind of join me in the terrain of my thinking in a way that takes a lot of good humor and generosity and I'm really grateful for their enthusiasm in doing that. And yeah, it's been really a fantastic experience for me.
Cressida: 01:11:21
You can listen to all of season one and find our show notes, including references to everything we mention at sleepisthenewsex.ca and you can contact us at sleepisthenewsex at gmail.com. So we're on season hiatus for now but we do have hopes of doing a second season. So follow us so you'll know if and when we reappear. Thank you very much for listening to all or any of season one. We couldn't have done it without you and we hope to see you back.
Cressida: 01:11:56
This series is recorded at the University of Alberta which is located on the territory of the Nehiyaw, Niitsitapi, Metis, Nakota, Dene, Haudenosonee, and Anishinabe, lands that are now known as part of Treaties 6, 7 and 8 and homeland of the Metis. As we talk about the history and meanings that sleep, rest, leisure and productivity have for us, we also want to recognize the way each of these ideas participates in the history of colonialism that has shaped and continues to shape relations between settlers and First Nations.
Joshua: 01:12:30
Jon makes the point in this episode so it does tie in nicely but uh sleep is to fatigue what climaxing is to foreplay.
Cressida: 01:12:51
Right. What?! I don't think Jon ever said that!
Joshua: 01:12:57
No no he definitely doesn't never says it like that.
Cressida: 01:12:59
Okay.
Joshua: 01:12:60
But I'm trying to fit it into a better... I'm trying to I'm trying to top Jon in actually in that context.
Cressida: 01:13:09
Sleep is to fatigue as orgasm is to foreplay?
Joshua: 01:13:12
Thank you. That's yeah better than climaxing.
Cressida: 01:13:16
Mic drop.
Joshua: 01:13:17
And that is Sleep is the New Sex