Nietzsche and Legal Theory

Half-Written Laws

Peter Goodrich, Mariana Valverde

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781136749674
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Nietzsche and Legal Theory is an anthology designed to provide legal and socio-legal scholars with a sense of the very wide range of projects and questions in whose pursuit Nietzsche's work can be useful. From medical ethics to criminology, from the systemic anti-Semitism of legal codes arising in Christian cultures, to the details of intellectual property debates about regulating the use of culturally significant objects, the contributors (from the fields of law, philosophy, criminology, cultural studies, and literary studies) demonstrate and enact the sort of creativity that Nietzsche associated with the "free-spirits" to whom he addressed some of his most significant work.

CHAPTER 1

Gay Science as Law: An Outline for a Nietzschean Jurisprudence

JONATHAN YOVEL

Therefore he desired to be farther satisfied what I meant by law … because he thought Nature and Reason were sufficient guides for a reasonable animal, as we pretended to be, in showing us what we ought to do, and what to avoid.

— Jonathan Swift, Gulliver’s Travels

What are you really doing, erecting an ideal or knocking one down?

— Friedrich Nietzsche, On the Genealogy of Morals

This chapter examines not merely how a Nietzschean critique of law would look had Nietzsche ever applied his genealogical method to the question of law, but also what positive function Nietzschean philosophy may ascribe to law — and how law must then be transformed. The methodological parable imagines a “postgenealogy” or “post-ressentiment” phase of the human condition, akin to the Marxist “postrevolutionary” phase: how would law look for the Person of Power — overman or otherwise — who needs to live among others? How is normativity possible — what are its forms and functions — in a social world that has undergone a reevaluation of all values? This chapter traces three possible models for conceptualizing law in Nietzschean terms, each requiring a radical shift from traditional (in different contexts: liberal, Christian, bourgeois) conceptions. The first one is play: law as affirming and embracing the essence of the Dionysian, which is perpetual becoming. Play requires us to let go of law’s role as the curtailer of arbitrariness. The second model is that of resistance, framed by Nietzsche’s analysis of power and Deleuze’s distinction between active and reactive forces. The insight here is that power requires resistance, and it is law’s primary function to empower the other in order to invest value in meeting and confronting him; thus the monism of the will to power not only does not do away with normativity in the public sphere but actually requires it — but for goals opposite to those of liberalism. Resistance is linked to the third model, fashioned after Nietzsche’s model of education: here, law performs not as a socializing agent but rather as a liberator of authenticity. Its function is analogous to that of a mentor whose role is ultimately to encourage the pupil into coming into her own will, shedding ressentiment and bad conscience in an active, nonconscious way; in its relation to consciousness it moves in an opposite direction to that of psychoanalysis. A fourth consideration is then offered, the role of normativity in self-overcoming, or self-legislating; namely, how does normativity figure in the will to power’s most significant challenge?

While these models work from an interpretation of the will to power as becoming, the last two are especially dependent on the active-reactive distinction. The cornerstone is not to confuse power with representations of power. It is not the will that desires power (as an object of desire that would necessarily involve a representation of power), but power that wills becoming. In dealing with this metaphysical question I expound on a similar interpretation, originally offered by Deleuze; however, in my discussions of education and resistance I break with Deleuze’s claim that the will to power has nothing to do with any notion of struggle. If this discussion of the will to power is missed, or if it is wrong, the main argument of this article is invalid. Therefore, in order to test its fruitfulness, I use the following discussion of law in a Nietzschean sense to offer a solution to Kafka’s riddle in The Trial, sequentially placing the parable of the seeker of the law in front of its closed gates in a certain ethical narrative that begins with Plato’s fable of the cave, continues with Zarathustra’s emergence from his own cave, and finally culminates or deteriorates to Kafka’s cave, where law resides but cannot be accessed.

The Death of Law?

At the outset of his essay Le Surhomme dans le Souterrain — the “Overman in the Subterranean” — the French philosopher René Girard frames a discussion around the following question: “Que devient le surhomme quand il a tué la Loi? Est-il condamné a la folie? [What becomes of the overman once he has killed law? Is he condemned to madness?]”¹ What Girard has in mind, probably, is a paraphrase modeled after a famous passage of Nietzsche’s The Gay Science, with “Law” substituted for “God”: Have you not heard of the madman who lit a lantern in the bright morning hours and, like Diogenes searching for an upright man in the agora, ran to the marketplace and cried:

“I seek Law! I seek Law!” Whither is Law? I shall tell you: we have killed him — you and I. But how could we do this thing? Where are we moving now? Are we not plunging continually, in all directions? Is there still any up or down? Do we smell nothing as yet of the legal decomposition? Law is dead, and we have killed it.²

From somewhere high above the agora we may hear the echo of Nietzsche’s own prophetic voice prophesizing, in the “Destiny” section of Ecce Homo: “all power structures of the old society will have been exploded.”³ Nietzsche’s prophecies, we must keep in mind, are untimely meditations. He is “pregnant with future.”⁴ Does his philosophy of power indeed call for a view of a future society, when some individuals — few, perhaps — have crossed the bridge and, with Zarathustra’s guidance, transcended the psychology of ressentiment and bad conscience? What is law to them?⁵ May this, and not some grand European plan, be a true reading of his proclamation “it is only beginning with me that the earth knows great politics”?⁶ What forms of normativity are useful for the Dionysian higher person who is emancipated from morality and reactive science and able to confront the chaotic nature of the cosmos and innocence of existence, look them squarely in the eye, and affirm them?⁷ And how are we to understand Nietzsche’s amazing dictum, in Beyond Good and Evil, that “[g]enuine philosophers … are commanders and legislators?”⁸ For unlike in Kant, here not reason legislates but the will. This point requires some clarification.

The questions “how can law be the case?” or “how is normativity possible?” must be understood here in their its distinctly Nietzschean, not Kantian, sense. It was Kant’s strategy to begin inquiries with the question “how is any synthetic a priori sentence — such as a normative one — possible?” and then move on to the conditions that generate it.⁹ Normativity is thus taken as a given, and the conditions of its existence form the problem for philosophical inquiry. In Nietzsche’s strategy the question is turned on its head. It is not the possibility of the case that the inquiry revolves around, because nothing is a priori: all is a product of the will to power, the drive to become more, to perpetual becoming. And so the emphasis is on the first word of the question, the how: What are the forms of normativity, in either collective or individual contexts, for free spirits, persons whom genealogy and amor fati freed from ressentiment in all its manifestations?¹⁰ Ostensibly such persons have no use for law to direct their action. Nietzsche does not follow Socrates in seeking some abstract sense for things. The question he formulates is not “What is x — beauty, virtue, anything?” The question is always “What is x to me? To the Person of Power? To the other?” Approaching any such x through the critical method he invented and termed “genealogy” allows for its reevaluation it in a new, post-ressentiment life. This is how Nietzsche deals with language, cognition, morality, science — any phenomenon that is the case, for they all owe their existence to the will to power. Owing to his genealogy, Nietzsche was possibly the first human to conceive a radical break between the origin of any institution, such as morality or law, and its reconstructed purpose or function in terms of the will. This is how law and normativity will be dealt with here: as forms that must justify themselves for a life of Freespiritness, emancipated from ressentiment. Thus there is a derivative relation between Nietzsche’s metaphysics, or moral psychology, and any normative exegesis. I explore that relation throughout the chapter and reply to certain objections in the conclusion.

In what follows I offer a discussion of Nietzsche on the assumption that collective action, contrary to his tastes and distastes, is a case to which Nietzschean philosophy pertains — if indeed a derivative one in relation to the main questions of moral psychology and power. The worthy person, whether a veritable Übermensch or not, will also live in society. It will be among and against others that his will to power must be exercised, measured, challenged, and overcome. Zarathustra’s teachings are not for solipsists nor, ultimately, hermits. He must perforce emerge from his cave in order “to be more,” teach, exist. He must bring this gift to humanity, not unlike Plato’s slave who, having escaped from the cave and experienced truth, went back to share it at the cost of his life. Everything about Zarathustra’s story is contrary, except for that point: although truth is found in the cave’s loneliness, it must be projected outside, among the others. Zarathustra emerges as the herald whose fruit has ripened, but he is not yet ripe for his fruit.¹¹

Three Models of Law

I now wish to turn to the main part of my argument, which consists of three models for Nietzschean discussion of law and normativity. We must keep overarching questions in mind as we follow these models: When are we talking about law’s content? When are we talking about legality’s form? And when are we transcending the Weberian category of legality and procedural justice to suggest a different kind of normativity altogether?

The three models that are briefly discussed here are: play, resistance, and education. There is another discussion of normativity that Nietzschean philosophy begs for, namely the question of the tension between normativity and self-overcoming. In the entirety of the Nietzschean corpus the question of self-overcoming seems deceptively close to what we may term traditional (or in some instances Christian, and in others, Stoic) ethical discourse. Yet it suggests a different kind of normativity altogether, one that is not translatable into the social sphere, and accordingly will not be dealt with here.¹²

Play

In “The Lottery in Babylon,” a radical story by Jorge Luis Borges — who, like Nietzsche, breathed the “strong air of high places” — all of life’s aspects are governed by a periodical lottery. The question of distribution is governed by chance, but not — as in bourgeois society — merely by such chance conditions as hereditary birth. Rather, the lottery periodically confers anything and everything that society may confer, until the next round is held. As Borges’ protagonist narrates:

Like all men of Babylon, I have been proconsul; like all, I have been slave. I have known omnipotence, ignominy, imprisonment. Look here — through this gash in my cape you can see on my stomach a crimson tattoo — it is the second letter, Beit. On nights when the moon is full, this symbol gives me power over men with the mark of Gimmel, but it subjects me to those with aleph, who on nights when there is no moon owe obedience to those marked with the Gimmel … once, for an entire year, I was declared invisible — I would cry out and no one would heed my call, I would steal bread and not be beheaded. I have known that thing that the Greeks knew no — uncertainty.¹³

Certainty, stability, and predictability are the most salient, distinctly bourgeois features of modern law and, in most cases, the basis for its notions of liability and responsibility. In a sense, that is what all law is about: reducing — even minimizing — the arbitrariness of life. We have law because, spontaneously, “things happen.” Contract, explains Wolfgang Friedmann, is about defying arbitrariness in the form of private insurance that allows parties to perform in certain ways with some guarantees of the future — reliance and expectation will not be left to arbitrariness.¹⁴ Once the will of legal agents is institutionally expressed (think about contracts, property, family) both civil and criminal law supply a denouncing language and negative incentives for the infliction of unbargained action (or “harm”), unless some other social objective like the efficiency of exchange allows agents to destabilize an otherwise entrenched situation (e.g., “efficient” breach of contract or “taking” of property interests).¹⁵ Indeed, so obvious these features appear to some philosophers of law, that stability and certitude are habitually and casually dealt with as inherent legal values, in distinction from what may otherwise be termed law’s “content,” its contingencies: those aspects of it that regulate j...

Table of contents

• Cover
• Halftitle
• Title
• Copyright
• Contents
• Preface and Acknowledgments
• Introduction: Nietzsche’s Half-Written Laws
• 1 Gay Science as Law: An Outline for a Nietzschean Jurisprudence
• 2 From a Biopolitical Point of View: Nietzsche’s Philosophy of Crime
• 3 Pain, Memory, and the Creation of the Liberal Legal Subject: Nietzsche on the Criminal Law
• 4 Law’s Ignoble Compassion
• 5 Aphorisms, Objects, Culture
• 6 Nietzsche between Jews and Jurists
• 7 Nietzsche’s Hermeneutics: Good and Bad Interpreters of Texts
• 8 The Fourth Book of the Legislator: Nietzsche and John Neville Figgis
• 9 Slow Reading
• Contributors
• Index