Demythologizing Law, Pt. I

The question, “what is law?” is at first glance irreducibly simple. We encounter “law” everyday; it is all around us – manifesting itself in the average everyday activities of common everyday life. Sometimes, as in the case of the criminal law, our encounter with ‘law” can be particularly dramatic – even cathartic. Other times, encounters with law arise within such a trivial and mundane context hardly worth a second thought (for example, when we click the “I Agree” button on any number of “Standard Terms & Conditions” contract encountered in everyday life). Sometimes, we “know” we’re dealing with law because the situation itself is already understood as such (as when we file an application for incorporation with the Secretary of State). Other times, law’s omnipresence is less obvious, and more opaque. All of these circumstances represent a mere sample of the numerous encounters we have with “law,” or at least “law” as its understood in the application of a comprehensive modern Western legal system.

Yet, to ask the question “what is law?” is to move oneself outside of the average-everyday encounter with law, into an entirely new and fundamentally different domain altogether. Lawyers, legal scholars, and laypeople alike rarely have the occasion to deal with the messy problems of ontology and its accompanying metaphysical baggage.  What we’re getting at, however, is a metaphysical question; or rather, an ontological question caught up in the intricacies of a metaphysical tradition. Insofar as legal scholars and philosophers have thought the question “what is law?” it appears they have taken for granted the ontological significance of the question. So what do they (legal scholars) mean when they talk about law?

Take, for instance, the classic line from Justice Oliver Wendell Holmes:

The life of the law has not been logic; it has been experience… The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.[1]

This brief line from Justice Holmes is a significant source of ontological richness. Without his ever having been conscious of the fact, Holmes keenly demonstrates an ontological pre-understanding with regards his admonition that the life of the law is experience, not logic.  In recognizing that law is “embodied” in the lived-world of experience, Holmes is striking at the heart of Langdellian legal science and its metaphysical framework. Langdell and his followers conceived of “law” as embodying a set of limited, yet identifiable, universal principles that were detectible (by the trained legal professionals and scholars) inductively through the examination of precedent. Without a doubt such a conception of the law takes shape amidst the background of a very definite (and certain) ontological framework. Holmes’ point above, however, is a direct contradiction of the very ontological premises upon which the entirety of the Langdellian project was based. The reader will have surely noticed Holmes’ use of the past participle “been,” (to be). This is the juncture at which we can begin to see that Holmes’ ontological vision of law begins to take shape.

In making sense of Holmes’ claim, we can begin to develop an understanding of the statement’s ontological significance. For something “to be” means for it to “exist.” To exist, Heidegger tells us, is (etymologically speaking) to “stand-out against.” In following the structure of Holmes’ claim then, the life of the law is that which has been borne of experience, and not logic. Put differently, law is the type of being for which its life is experience, not logic. This seemingly innocuous description of “law” packs a metaphysical punch. When we ask, “what is law?” with the emphasis on the copula verb “to be,” we could understand the question in any number of ways. In our common understanding (pre-ontological), “to be” is wholly functional; it connects a subject with a predicate, such as “the book is heavy.” In our “average-everyday” grammatical understanding, this is nothing more than the working-out of predication. However, Holmes is also making an irreducibly ontological claim. When Holmes says, “the life of the law…has been experience,” he’s saying “the law,” is the type of being for which its life is determinable as “experience.” The ontological operation at work here follows the general structure of our shared grammatical practices: a descriptive property is equipped as a description of an object (the law).

This average-everyday understanding of “being,” or “to be” immediately brings to mind what Heidegger calls the “ontological difference.” In Being and Time (1927), Heidegger makes the observation that “Being is essentially different from a being, from beings.” The “ontological difference” delimits the fundamental distinction between “Being” (das Sein in German) and “beings” (das Seiende).  It is only on account of the forgetfulness of Being that permeates the Western philosophical tradition that the distinction is effectively leveled; where ontology (the fundamental question of the meaning of Being) has been lost and forgotten in our circumspective concern for things, entities, beings. Thus, it is with Heidegger’s insight into the ontological difference that we must now re-ask our question: what is law? By forgetting the question of Being as such, and instead preoccupying ourselves with the question of beings – we have altogether left out the most fundamental, most primordial of all: Be-ing. If Heidegger’s lifelong ambition was to get us to think Being again, then ours is an infinitely humbler task: for we want to examine the ways in which this forgetfulness of Being has made itself manifest in our understanding of “what is law?”

In taking the ontological question seriously, we begin to see the limitations of our average-ordinary way of understanding “Being.” The underlying significance at play here is two-fold: first, it shows that the traditional responses proffered to our question “what is law?” are inadequate if they do not think through the difference between Being and beings; second, it forces us to second-guess the standard framework that serves as the basic grounding of our entire metaphysical preconception of how we understand we who ask the question– that is, the problem of subjectivism, whereby we mean the metaphysical tradition’s positing of the relation between subjects (perceivers) and objects (entities encountered in the world). In other words, in posing the question, we are immediately brought into confrontation with our own presuppositions as to how we relate to, and describe, the phenomena of existence – including “law.”

What the canon of legal theory has taken for granted is the problem of the binary opposition of subject/object, the inherited tradition of the cogito.[2]  It is from this inherited tradition that modern legal theory has taken upon itself to describe the phenomena of law as an object to be perceived, observed, described, and explained.  It is against this backdrop of the tradition that our inquiry makes its first point of departure by way of problematizing any attempt at “objective” accounts of what law in fact is.

Throughout Western scholarship, there is a presumption towards the primacy of “objective” (versus subjective or otherwise non-objective) knowledge. This inherited privileging of the “objective” brings with it a number of important consequences, least of all its subsequent ontological dimensions. In the context of legal philosophy (and philosophy generally), this “objectifying” way of philosophizing manifests itself in the way in which legal scholars and philosophers attempt to take up a detached, disinterested, or theoretical point of view in describing the phenomena of “law.” It is as if the observer were capable of removing himself from his or her factical world, relieving him or herself from the complex of circumspective concerns of average-everyday being-in-the-world, and offering up what Thomas Nagel called “the view from nowhere.” [3] This preferential treatment of the objective account of the phenomena of law is supposed to relieve the neutral observer from the biases and prejudices of contingent human existence; in effect, it is an attempt to escape from the “hermeneutic circle” whereby understanding is always already interested and engaged.

To be sure, the “objective” account of law has necessarily transformed itself from the days of Langdell’s rigorous scientific formalism. The reader would be hard-pressed to find many legal philosophers and professional practitioners nowadays holding fast to the idea that law is an embodiment of universal “rules” that are both discoverable and discernible to the trained legal mind. But the objectification of law need not necessarily imply some faith in any sort of metaphysical “realism” of the legal concepts[4]; rather, objectivity in the post-Langdellian sense has taken its cue from positivism and empiricism, whereby legal concepts are indelibly part of the world of experience, conditioned and manufactured by the complex working out of social organization and practices that invariably constitute what we readily take to be “law.” In this respect, the primacy of objectivity can be defined as resting on a (pseudo)grounding in what may be called a “metaphysics of presence.”

In its metaphysical sense, the objectivity of law is grounded in presence; or rather, representation.[5] That is, the meaning and source of law is conceptually prefigured, something re-presentable. The existence of law as “objective presence” comes into being in the very language by which we speak of law or legal concepts. For example, when we say that a contract is a “meeting of the minds,” we take for granted that there is something “out there,” represented or referred to in our speech acts, constitutive of a “contract.” Legal concepts (and law more generally) are re-presented as being imbued with a positive content – something that is ultimately discernible, identifiable, and describable. This pre-eminence placed on the presence of law and its legal concepts gives the entire discourse of law the appearance of an unalterable, pure grounding — whereby the task of legal scholars, thinkers, lawyers, judges, policymakers, and laypeople alike is to determine its meaning (an epistemological-interpretive question).  This has the tendency to ratify an entire framework of discourse that subsumes the question “what is law?) into an altogether different question – what is the meaning of law. This has a tendency to reify law, rendering it static, immutable, and ultimately determinate and fixed. In short, by proclaiming legal meaning as arising from undifferentiated and determinable sources, legal scholars and others seeking to answer the question “what is law?” have completely glossed over the ontological question, and in their haste, moved briskly on to the epistemological question.

In thoroughly forgetting the ontological question of law, much of traditional legal thinking centers on the epistemological grounding of law: taking up questions of how we know the meaning of law, which meanings should prevail over others, which methods are best suited to arriving at the “truth” of law (or original intent), and other similar questions. Again, it must be reiterated that all of these questions presuppose something fundamental – not only about law itself, as the object of knowledge, but also the knower (the knowing subject). But again, there is a circularity here that must not be underestimated: insofar as the meaning of the Being of law is itself something always-already presupposed in our discourse of the nature of law, then it’s perfectly legitimate to focus on the epistemological-interpretative problem of what the law “means.”  Nowhere is this problem made more explicit than within the discourse of law school, where traditional “casebook method” problems arise in the context of institutionalizing and reproducing the discursive framework associated with the American adversarial system. Students are inaugurated into a mode of thinking about law that sees it constituted in an adversarial (binary) opposition whereby opposing parties offer varying, sometimes contradictory, interpretations of the law. What constitutes “a meeting of the minds” in contracts; or “reasonable person” in torts; or sufficient nexus for a party to open itself up to liability in an outside jurisdiction are all subjected to the interpretive process upon which the adversarial system has become known. Students are taught that similar interpretive events can occur among the legal authorities themselves, as when Circuit court decisions are “split,” or when the opinion of the trial court is overturned and remanded by a superior appellate court. Finally, nowhere is the interpretive problem brought to light in such an apparent and explicit way as in the field of “constitutional law,” where the Supreme Court (as the court of final determination on Federal Constitutional questions) is often times explicitly and self-consciously engaged in the penumbra of interpretive problems. Yet despite these interpretive variances, all the parties, and countless legal philosophers and scholars alike, concede that there’s a right answer “out there.” Different participants in the give-and-take of the hermeneutical maneuverings of law may disagree in countless ways on how to interpret legal rules and other phenomena; which methodologies and practices are most appropriate and best-suited for deciphering the “correct” answer; and what is allowable and what is not in carrying out such interpretations – but all agree that there is something definable, determinable, and essentially knowable about the law. [6] It should become clear now that the epistemological objectivity of law necessarily depends, and is intertwined with, the metaphysical objectivity of law as pure presence. But, as we shall see, these purely epistemological problems of knowing or discovering the meaning of law rest upon an inherited notion of truth by which legal philosophy has taken for granted, namely truth as adequatio (correspondence theory of truth).

In outlining the ways in which the question “what is law?” has been largely ignored, and instead substituted with a fetishistic preoccupation on the meaning of law, we can begin to see how law comes to take on a particular mythos. An exploration of this mythos will be dealt with in detail in Part II.


[1] Holmes, O. W. The Common Law (1881)

[2] After subjecting everything to his methodical doubt, Descartes discovered that the only thing remaining was his doubting itself – in other words, his doubting itself was and remained indubitable. Descartes follows this by declaring that I who doubts (thinks) exist; therefore, “cogito, ergo sum.” In effect, Descartes makes the move from epistemology to ontology by positing “thought” prior to “existence.” 

[3] Nagel, Thomas. The View from Nowhere. 1986.

[4] By “realism” I mean here the view that legal concepts are discoverable entities somewhere “out there” and exist in and of themselves, for themselves. Not to be confused with “legal realism,” which attacked such a view. 

[5] By this I mean Derrida’s term “metaphysics of presence.” Derrida, Jacque. Of Grammatology. (Baltimore: John Hopkins University Press, 1997) p. 49.

[6] For a comprehensive analysis of this, see Schlag, Pierre. “Hiding the Ball.” New York University Law Review, 1996.

Demythologizing Law

Introduction

What do we mean when we pose the question, “what is law?” To be sure, the canonical tradition of Western legal-philosophical thought proffers a wide variety of answers. In brief summary, law is “transcendental nonsense,” it is “what courts do in fact;” it is the concretization of universal principles that exist “out there;” it is a structure of inter-related and arbitrary relations between signifier and signified put into use by practitioners of the law in the form of rhetoric;  it is violence, and the possibility upon which the individual accepts his inferior status to the awesome power of the sovereign; it is a constituent part of the hierarchical organization and structure of society by which those on top remain on top; etc. In short, in posing the question, “what is law?” we take for granted that we know what it is, in fact, that the question asks. The question itself presupposes a response – law is something; something that we can grasp, wrap our head around, whose features may be empirically described, observed, and/or known definitively.

My goal in the following series of posts is not to set about composing a definitive answer to the question, “what is law?” Rather, my aim is to problematize the very question itself; to disabuse my reader of his or her faith in thinking that the meaning of the question is to provide any answer at all. What I will be attempting to demonstrate in the next several pages is that, by virtue of posing the question, we may be able to retrieve the question from the very metaphysical framework upon which the question has been historically subjugated. In doing so, it is my intention that we will be able to examine the means by which this fundamental question of legal thought will be brought back to its originary difficulty. In short, we will be attempting a destructive interpretation of law: that is, freeing the question (what is law?) from entrenched forgetfulness, and shaking off the layers of onto-theo-logical metaphysical interpretation that has artificially grounded the question – in effect, made it too easy.

We will begin our destructive reading of the question “what is law?” by examining what it is we mean by the question; how does it signify its intelligibility to us, and what does it mean for us beings who pose the question. This will entail an explication of the meaning/intelligibility of asking the question as such, while at the same time interpreting and describing how the question itself brings to light our more general problem in the context of our initial findings. In Part II, we will begin to examining the mythologizing of law more closely – examining how modern legal theory has either ignored this question altogether, or, when it has taken it upon itself to pose the question, has insufficiently dealt with it. In Part III our analysis will take a minor detour by way of looking at the historical development of this mythology of law, drawing on for the purposes of our analysis Foucault’s genealogy of the “problem of population.” In Part IV we will examine the rise of the Cartesian “subject” and its role in traditional legal thought. In Part V we will read the history of the rise of the “problem of population” alongside the rise of the modern subject and bring them together in Heidegger’s notion of the crisis of global technology and the “age of the world picture.” In Part VI we will continue our destructive dialogue with traditional legal philosophy by proposing a thoroughgoing demythologizing of the law with an explication of the mythos of law. Whatever conclusions may be drawn from our discussion will be outlined and examined in Part VII.

Of Love, Surrender, and Releasement

Love, that most exquisite, dangerous, and mysterious modification  of our being-with, both entices and repels us. It fascinates us, compels us, and pulls us in, but at the same time its power of appeal we so desperately try to resist. Love is that which brings us to the brink of unreality — to the outermost boundaries of our being-in-the-world…calling on us to sacrifice everything – our very Being if necessary– for the sake of the Other.

Love, the most authentic and yet most terrifying existentielle modification of Dasein’s being-with, appeals to us on account of Dasein’s very existential structure (being-with-others); yet, paradoxically, it yield a tremendous and horrifying power over our being that it we feel compelled to turn away from it and ignore it. We may feel its call, the call that eviscerates us; with its demanding the most complete and total submission; a surrendering, so to speak, of the solitariness of the Self to the affirmation of the Other’s power over us.

Love is, paradoxically, both creative and destructive;  an affirmation and denial; a saying “yes to the Other” and “no” to ourselves.

To feel the power of love’s call, the call of the Other, one must first “see” the other in her other-ness. Her Dasein, through her ability-to-be-herself, is what is at stake in love’s appeal. It is the appeal of the other-as-a-self, in her concretized and individuated selfhood, that appeals/calls on me. What does it ask of me?

This is the basis upon which all authentic love comes into existence (becomes possible as a possibility for this Dasein-itself).  The Being-of-Love is the horizon upon which my Dasein is called by, and ultimately towards, the Dasein of the other as the center of her self-hood; of her freedom in her ability-to-be. Love requires the concrete; for “one” does not love. The call of love can neither be felt nor heard by the one-self; but only by the my-self. The call of authentic love cuts through the clutter of the idle-chatter; of the confusion and disorientation of the inauthentic being-in of our average and everyday fallenness. It calls to me, in the my-own-ness of my Dasein, and asks of me to choose. One way or another, it is “I,” as a responsible (response-able) individual Dasein, that is called.

At this point authentic love must be isolated and distinguished from the disjointed muddle that nowadays passes for “love.” To be clear, it makes little sense to speak of an “inauthentic love,” for love exists only concretely, when the Dasein-of-the-other calls to my Dasein, and in response I choose resolutely to respond to the call with a “yes,” which at the same time is a “no.” But, before we get to that, it must absolutely be stressed that inauthentic love is a complete degeneration of love, and thus cannot meaningfully be considered “love” at all. For authentic love transcends the mired frenzy of modern technology, and is incomprehensible to the calculative thinking of disinterred subjects in their manipulation of objects. It defies all calculated and utilitarian thinking – and from this perspective, from that of the de-centered and uprooted “subject,” is useless. Nor can love be expressed as universal, which is only a distortion of other, more derivative and to an extent disengaged forms of affectedness for the Other. For example, one who says, “I love nature,” or “I love my neighbors,” speaks not of love, but rather, appreciation, preference, or enchantment. Without concretization, without all the inherent risks of infinite passion for the finitude of this or that Dasein, one is not truly “called upon” at all, and thus cannot authentically be referred to as love in itself. For “to love” an abstraction demands nothing of Dasein; it is, in its essence, a neutered and emasculated love – one without risk, without commitment, and without surrender. It demands nothing and so, it requires that we give nothing. One need only think about the way in which, someone who professes to love nature or a “cause” of some sort, is able to superficially engage in such a commitment by passively donating to the Sierra Club or sacrificing one weekend out of the year to collect signatures for this or that cause.

Authentic love, however, demands. It demands that we be response-able to its call. It demands because it is always a call “to me,” an invitation which presents itself both as a gift and command. It invites me to release my-self from the frenzy of modern technology; to release my-self from the will-to-power of our narrow epochal understanding of Being. It requires that I transcend the mere everydayness of my facticity, and see in the Other that she, too, in her Otherness, is at the same time more than her own factical existence. She is, in her Otherness, possibility-for-me, and at the same time, her ownmost possibility-to-be.

If one feels the call of love, one is then given over to choice. Because it is the “I” who receives this call, it is “I” who must choose. I may respond in any number of ways; but ultimately, love, dis-closes something about my Dasein, too: that I, as a being for whom its Being is at issue, must choose. In this capacity, I can remain un-touched by the call of the Other (ignore), I can reject it, or I can affirm it. Of course, between these possibility lies a plethora of distinct variations. But ultimately, one cannot escape the very necessity of choice itself. Authentic love then calls on me not only to respond, but awakens within me my response-ability; my own-most ability to be that transcends my facticity because I am always already an unfinished future; always ahead of myself in transcending the average everydayness of the present moment. I am called to no-longer view myself as a mere “ego” or “conscious subject” detached from the world of objects. In short, it provides this Dasein with the possibility, if taken up in all earnestness, to relinquish itself from the trappings of modern technology; to  release itself from its (mis)conception of itself as a self-sufficient entity capable of securing its Being in the (mistaken) solid grounding of metaphysical pretenses. In short, love calls on us to step outside of our-self, dispossess the self, in order to find its authentic self.

But the “call” of love does not constitute the totality of the Being-of-love itself; for, in order for love to come into being, it must be met with a reciprocal response. It is the responsiveness of this Dasein for whom the call calls that completes love’s circuitry. In saying “yes” to the call of the Other, I relinquish all of the trappings of the metaphysics of technology, of the insatiable compulsion to dominate and impose; manipulate and control. Dasein, in releasing itself from the disenchanted egotism of the modern age, Dasein affirms the other in-itself, as a Dasein with a Self that has its own possibilities, its own fate. In saying “yes,” Dasein chooses to bound itself to the Other by way of letting-be; this is love’s creative freedom. For, in responding positively to the call of the Other, I am surrendering the impulse to dominate her, and instead, submit to her as a free and individualized Dasein who is equally concerned with her own Being-in-the-world.  The “yes” of the call to love is a Surrender; a surrendering to the risk, for the potentiality that my responding to the call will itself be rejected, accepted, or ignored. A surrender to the possibility that the Other may not indeed reciprocate-in-kind.  When Dasein says “yes” to the Other, it is, in a sense, at the same time a saying “no” to the comfortable certainties and securities of inauthentic mode of being-in-the-world.

In responding positively to the call, Dasein destines itself in the Other, but, at the same time, destines itself in itself. It does so paradoxically; not through violent self-assertion, domination, or imposing; but through releasement – a self-denial, so to speak, that steps outside the pettiness of our average everyday concernfulness, and remains open and, to a very significant extent, defenseless. Dasein gives itself over; in so doing, it proactively asserts itself by communicating: “I am at your disposal, do with me as you wish!” Dasein releases itself from the pretenses of technological control, the illusion of security and comfort upon which everyday existence becomes so banal and boring, and putting itself at the control of the other; allowing itself (willingnly) to fall into any depths for the Other – sinking far below the depths of the average-everyday so that it can let-the-other-Be; and thus, She becomes the one and only true reality that exists for this Dasein.

Authentic love is impossible without surrender; a surrendering to all that inauthentic Dasein of the one-self flees in the face of anxiety. There is a clear parallel to be drawn between Dasein’s own death and the surrendering that takes place in love. In authentically taking over its Being in recognition of its Being-towards-death, Dasein must respond resolutely and in anticipation of its own-most possibility of impossibility (death). In surrendering to the call of the Other in love, Dasein surrenders the sure-groundedness of all inauthentic being-in-the-world; like death, love dis-closes Dasein as the possibility of a nullity – recognizing its own Nothingness and groundlessness. In responding to the call of the Other, Dasein makes it-self nothing: a will-to-become-nothing and sink into nothing-ness…upon releasement, Dasein no longer understands itself as relating itself to the absolute ground; but rather, holds itself open to the groundless ground. In essence, the all-encompassing and systematic securities of onto-theology give way to the infinite insecurities of being-un-grounded. In effect, the Self willingly delivers itself over to the Other to do as she will – with full recognition (and affirmation) of the vulnerability and difficulty confronting its being. This surrendering of the Self opens up the possibility of the moment of vision; where one is capable of transcending the egoistic self-centeredness of everyday being-in-the-world and actively turns to becoming a We-self. In affirming the Other in the Other-ness of her Dasein, the Self fulfills itself in making its decision – in dis-closing a world heretofore hidden by conventionality and conformity of the “One-self.” As such, a new reality and a new understanding of its existence begins to unfold. The Self, undergoing this transformation, appropriates this moment and allowing it to unfold in an altogether transformed interpretation of its factical existence, and above all, its projected being-in-the-world and thus realizing its Being-in-the-world-together.

At this point the reader may suspect that I have confused love with a form of masochism. But indeed, the possibility of masochism itself is only a manifestation of love taken to its outermost limits. What the two phenomena have in common, and why masochism itself can be understood so clearly as a derivative of authentic love, is that they both envelope Dasein in a complete and enveloping vulnerability.  But whereas the masochist actively pursues pain, humiliation, and subjugation for the purposes of realizing his own interest, and in essence, is subject to the same reification of other derivations of love. The masochist, in seeking a metaphorical annihilation of the Self, and wishing to become an object of his partner, in reality, is constrained within the Cartesian tradition – essentially relating to the Other as a means for his own desires. Moreover, whereas the masochist in a sado-masochistic relationship indeed involves many of the destructive characteristics of authentic love, it lacks the truly creative possibility of transcending the I-self and becoming a We-self. For its part, authentic love has no ulterior purpose, no “reason” for being. It is poetic, and absurd; incomprehensible and un-subjectable to the principle of reason. Dasein willingly subjects itself to humiliation, rejection, subjugation, betrayal with no other motivation than the letting-be of the Dasein of the Other herself in her-self, whatever the consequences may be. I pray that my love is met with a reciprocal affirmation; but I must dwell in the insecurity and sheer uncertainty that becomes manifest that, in delivering myself over, I am at her whim; in letting the beloved be-herself, Dasein hands itself over to the infinite risk of infinite passion, and, in a sense, resigns itself to whatever ontic-possibilites may take shape, no matter how painful, how humiliating, how disorienting and how insufferable they may be. Only by way of holding one’s self open into the groundless ground is love, authentic love, possible at all.

Being-towards-death

Human being is radically finite; for each and every one of us, death-as-possibility (the uttermost possibility) underlies the horizon of all other possibilities. As such, each and every instance of Dasein is directed towards its death – as the annihilation of its possibilities (death is, so to speak, the impossibility of all Dasein’s possibilities). One of Heidegger’s most important insights in Being and Time (though undoubtedly something appropriated from Kierkegaard), is the fundamental role death, as being-towards-death (Sein-zum-Tode), has for the type of Beings we are.  Yet, while we all concede that all “mortals” are defined by their ability-to-die, death itself, as my death, is phenomenologically a first-person experience. Only the “I” of the Dasein has the ability to take up its own genuine anticipation of its death as “my death.” It is on account of this that the dis-closure of the mine-ness of my death makes possible individuation and the becoming itself, at all.

To be clear, “death” in this sense is not to be confused with the existentielle or ontic sense of “demise” – the point of departure whereby life ceases-to-be. But rather, in its existential-ontological context signifying the possibility of Dasein’s having no more possibilities (Dreyfus).  What does death as existential-ontological possibility dis-close? Nothing! Or rather, it signifies Dasein’s being-in-the-world as delimited by its ownmost possibility of a nullity. This much is dis-closed in the mood of Anxiety, which reveals that the world of possibilities is, in short, not of my creation – that all possibilities are there for “anyone” and “everyone.”  Anxiety is the “mood” that allows Dasein to un-cover (dis-close) its groundless-ness, which in turn isolates and cuts Dasein off from its “normal” un-reflective taking-up of the socially, historically, and culturally determined possibilities that presuppose the shared constellation of meaning of everyday life. The isolation of Dasein from its possibilities brings Dasein into direct confrontation with its un-homeliness (unheimlich); in other words –Dasein’s world and actions, and the possibility of their being intelligible in the shared world of Being-in, vanishes. Dasein thus finds itself paralyzed…incapable of projecting itself into any possibility at all. All possibility becomes equally irrelevant, and thus Dasein, though it still is, is unable to throw itself into any particular definite possibility.

An Attempted Response to “Nikhil”

A reader by the name of “nikhil” posed the following question on one of my recent posts. After devoting much thought to his/her inquiry, I opted to respond in a separate post. This is in part due to the fact that I feel as though this is a sufficiently interesting topic on its own to deserve its own separate post; and second, because there is no straightforward way of handling a question of this nature.

I have a question, how do you continue to do what you’re doing, living, in spite of knowing how utterly pointless existence is, the burden to create meaning when the very notion of meaning is just another piece of human fabrication.

I’d like to first respond on a purely personal/biographical level; second, I’d like to give a rough philosophic response – not only to that which the question speaks – but also to the very asking of the question as such.

For me personally, there’s no over-arching answer as to how or why I continue to live in the face of a meaningless existence. Most of the time I find myself comfortably acclimated to the absence of any grand meta-narrative for human life. The presence of absence is, I think, what it means to experience human finitude in its most radical form – that subtle call that reminds us of our own individual finitude, but also what makes possible individuation at all. It’s the possibility that comes with the dread – a possibility of finding one-self through the cluttered curiosity and idle-talk of the average everyday experience of being-human.

What’s more problematic for me are those times when my own meaningful relations to my world seem to break down; that is, when the things that show up as meaningful to me seem to lose all meaning (for me). I don’t have any answer to these situations, which it must be conceded I find myself in more often than I’d otherwise care to admit. I regularly feel disconnected from the world around me, and there are even more severe moments where the most basic meaningful engagements seem nearly impossible. I also am constantly besieged by my own melancholic moods, which precipitates my withdrawal from the world and into myself – which in turn makes it almost impossible to go back.

In those moments, I try to remind myself that I mustn’t take things so seriously; that the opening up of the abyss that always seems to haunt me is, at the same time, a reminder that no matter how absolutizing the void feels, there’s always an element of absurd humor that belongs to it; a kind of playfulness that always brings you back to the contingency of yourself and the multiplicity of worlds in which you’re involved. It’s here that I find myself able to have a real dialogue with myself and actually take notice of myself. It affords me the possibility of being-alone, of entering a solitary mode of being-with-others that allows for the possibility of selfhood – but at the same time it also brings with it the danger of loneliness (which I take is a deficient mode of being-with-others subsumed in loss). I enjoy solitude, but I’m constantly at a loss in my loneliness. I find a certain pleasure in the meaninglessness as possibility, but often find it too difficult to return to average-everyday coping in the world. These moments of existential crisis are cathartic; but they are also what reminds us that we are responsible (response-able) for our own existence; that our being matters to us, and it is our choice to own-up to our finitude and become a genuine/authentic self.

I don’t think the average person reflects too heavily on questions of meaning. They’re able to go about their lives, either completely ignorant or un-concerned with the questions you’ve raised; or, if they do encounter them, then it’s perhaps more from the perspective of some type of regional crisis; one that takes on more ontical features (I no longer am able to relate to my wife, my job no longer has meaning for me, etc.). That we’re so easily capable of losing ourselves to the “they,” and to flee the anxious dread of our own contingency and finitude, is what allows most people to go through their lives largely in a detached and abstracted way. The comfort of everyday existence is certainly easier; but also has its deficiencies. In some odd ways, the confrontation with nullity is not exclusively a negative experiences; that’s not to underestimate the tension and turmoil that one can experience in these moments; but rather, it is the possibility of experiencing the pure catharsis of our being. Otherwise put, I think it’s the ground for the possibility of the encounter with something that both truly belongs to the type of beings we are, but yet remains unspeakable. This is something that invigorates and at the same time besieges me; it enables me to re-think and re-interpret a lot of the ways in which I find myself in the world; and, perhaps I’m worse off for it, but it has allowed me to engage my melancholy on a more personal and concrete level.

The second part of your question that I’d like to address is with respect to the point you’ve made regarding meaning as human fabrication. I agree that meaning is not something “out there” that human being must uncover; but nor do I think that meaning is something we consciously impose on the world through intentional acts. I think it belongs to human-being to interpret its world as meaningful, at the very least in the equipmental way that Heidegger refers to as “ready-to-hand.” We don’t “impose” or “fabricate” meaning, as in the way we might if we were trying to determine the use or meaning of a cultural relic from some ancient or foreign civilization. For the most part, except perhaps when one adopts the scientific world-view or else experiences a crisis, we don’t generally view entities in the world in such a present-to-hand way. The very essence of our thrown-ness is that the world always-already appears in some (shared) meaningful fashion.

But I also think that our primary mode of experiencing our being-in-the-world takes the form of narrative. Not to dwell too much in this literary analogy, but I think the way we experience ourselves and our being-in-the-world as interpretive beings means that we do encounter other beings in our world as if part of a meaningful narrative. For most people, I think this narrative is mediated by das Man or the Crowd; in other words, meaning or significance is completely divorced or abstracted from the individual, and is sourced outside of itself through historic-culturally determined “roles” that one passively takes on. But in moments of crisis, we are called back to ourselves (dread, despair, etc.), and reminded of the radical finitude and contingency of our being, and thus must either choose whether to own up to our responsibility to become an individuated, genuine self as anxious being-toward death; or flee back into the comfort and security of the Crowd.

I think the very asking of the question epitomizes the un-homeliness of human-being; but it also shows the desolating effects of the culmination of metaphysics, which stands for the bifurcation of subject from its world. It seems as though the question itself recognizes this homelessness – but also backs away from it, into a type of humanistic thinking that dwells within the subjectivism of the metaphysical tradition.

The Question Concerning National Socialism (Part I)

In his 1947 Letter on Humanism, written just two years after the devastating collapse of National Socialism and the Third Reich, Heidegger renounced all forms of “nationalism” [including National Socialism] as yet another (modern) manifestation and expression of the Western metaphysics of subjectivity. What is a “nation” – after all, but a collective of subjects? Yet, just thirteen years earlier, Heidegger had taken a radically different position. In National Socialism, he saw the authentic mission of the German Volk as the self-expression of the historicity of Being itself.

To be fair, Heidegger perhaps expected too much from National Socialism; or, at the very least, was too swept up in the political momentum (perhaps) of the times to take seriously the extreme contradictions that plagued (historic) National Socialism. What Heidegger did see was memorialized in his 1935 lecture (later published in 1953 as “An Introduction to Metaphysics”) in which Heidegger speaks of the “inner truth and greatness of th[at] movement (namely the encounter of planetarily deter-mined technology and modern human beings.” (Note: there is a long-standing controversy as to whether or not the bracketed modifier was originally included in the lecture text itself, as Heidegger says it was, or whether it was later added out of political expediency for the publication of “An Introduction to Metaphysics.” Either way, for our purposes here, we’re not so concerned with Heidegger the man, but rather his thought; as such, I see no harm in taking Heidegger at his word with respect to his own textual composition).

Modern historical discourse has no room for entertaining the “inner truth and greatness” of National Socialism. National Socialism is now indelibly linked with the attempted systematic destruction of European Jewry, the political (ontical) rise of Adolf Hitler and the NSDAP, and the military-history of the Second World War. In fact, the entire discourse surrounding the historical significance of National Socialism as a unique and distinctive historical phenomenon must take, or so the extant discursive practices dictate, such a concession as its starting point. All other attempts, including all attempts at an historical re-interpretation of the dominant discourse surrounding National Socialism, are either castigated as “revisionism” – as if a critical inquiry into existing paradigms was something to be discouraged; or simply ignored as apologists for the National Socialist philosophy. Yet reducing this complex historical phenomenon to any one particularity of its practical existence single-handedly closes off all insight into what was most “essential” to National Socialism: a revolutionary confrontation within and against the Western tradition in its entirety.

But it seems as though this failure to take seriously what for Heidegger constituted the “inner truth and greatness” of National Socialism – that is, its own manner of opening up the way towards a confrontation with Western technological nihilism, has only closed-us off from a critical engagement with that unique twentieth century phenomenon. In essence, it conceals more than it reveals. Now we’re left with a mere “ontico-historical chronicling” of National Socialism (as interpreted through the dominant paradigm of the Victors of WW2) in which the phenomena (of National Socialism) is no longer allowed to speak for itself.

What is the harm in allowing National Socialism to speak for itself? What about the possibilities of a radical re-thinking of what it was that attracted Heidegger to the “Nazi” movement, and what it reveals about our own understanding of ourselves, our tradition, and the future of thinking? At the risk of being mis-understood, I think Heidegger did see something genuinely transformative and revolutionary in National Socialism – something that we may learn a great deal from, if only we begin to think in an entirely different way. We have so concerned ourselves with the ontical aspect, namely the violence and destruction committed in the name of (historic) National Socialism that we have closed ourselves off, and appropriated the significance of the failures and excesses of National Socialism to signify (to us) as the further grounds for under-cutting all such future attempts at Nationalism generally.

To clarify – this is not to say that historic National Socialism, as it existed from 1933 to 1945, ought to be re-produced in the context of the Twenty-First century. Not only is such a re-production literally impossible – for National Socialism was the expression of a highly particularized period in European history and must be understood as the self-expression of a peculiarly German Dasein, such an attempt at re-production would epitomize an inauthentic historicizing as a blind and un-faithful repetition of a particular and uniquely-situated historical destiny.

What is long-overdue is a radical re-interpretation under the auspices of “destructive retrieval.”  By “destructive retrieval,” I have in mind Heidegger’s destruktion as “critical appropriation,” upon which the historical interpretation of National Socialism will be de-structured in order to retrieve/appropriate its beginnings with the aim/intention of a repetition of its original insights and thus inform a new, radical beginning for our present understanding of National Socialism in all its possibility. In another sense, National Socialism ought to be subject to a different type of scrutiny an analysis as a concrete existential possibility of self-expression of a Volk with an eye towards gaining an insight into what constituted its most paradoxical features – chiefly, it’s own failure to confront its contradictory stance upon itself as both (a) violent transcendence and (b) entrenchment of, humanistic thinking.

At the outset, Heidegger’s understanding of destruktion is essential to setting the stage for our inquiry. In Being and Time, Heidegger proposes the de-structuring of the history of metaphysics in order to dissolve concealments brought about by the “hardened tradition,” and thus to return to the “primordial experiences” which constitute its source. Put another way, destruktion is a “critical dismantling” (abbau) of the tradition and at the same time a critical appropriation” of their original source. (Die Grundprobleme der Phanomenologie).  Thus, destruktion is at the same time “retrieval” (Wiederholung), by which some facets of the tradition are appropriated and undergo a subsequent repetition – however, such a repetition is by no means a re-production, nor is it the attempt to simulate the past; but rather, it is a creative and active process. “

Of Death and Doubt

Heidegger’s destruktion of Cartesian metaphysics stands as one of his most arguably revolutionary and monumental contributions to philosophical thinking in Being and Time. Not only did Heidegger’s critique of Descarte’s epistemology implicate the latter’s divorce of the subject from the world, but also its implications within which the Cartesian subject as self-enclosed and distinct from its world gave rise to generations of philosophical “pseudo-problems,” most notably the problem of the external world and the problem of other minds.

Accordingly, the very problems taken to be the central focus of modern philosophy (vis-a-vis epistemology) are derived on account of the fact that they have taken-for-granted certain assumptions, beginning with the mis-conception of the human-being as first existing and then finding its world. For Heidegger, human being is being-in-the-world and being-with-others; these are the very structures of human existence itself. The problem of Cartesianism is the problem of the positing of the human being as the ontological center, and thus leads invariably to subjectivism.

For Descrates, doubt pushes knowledge to its outermost limits, and thus is the means by which first principles are determined: whatever can survive Cartesian “methodological doubt” thus serves as the foundational principles of philosophical thinking. Thus, when Descartes applies his thoroughgoing doubt to all, he inevitably comes to the conclusion that he, the doubter, must in fact exist — and this is the unquestionable grounds upon which philosophy in the Cartesian (metaphysical) tradition takes as its starting point. Thus, the very act of doubting inevitably proves that the “I” for whom does the doubting — it follows that the “I” must exist (or at least think).

Thus, Cartesianism makes the move from “I think” to “I exist.” But this doesn’t really seem to accord with the phenomena (and Heidegger goes on to show that this is indeed the case) by which the individual “I” must exist in the first place in order to “think.” It is from here that Cartesian subjectivism mis-construes human being (the “thinking substance” as self-evident grounding.

At the same time, Heidegger’s existential analytic of Dasein’s radical finitude in its authentic being-towards-death does indeed seem to manifest a “destructive retrieval” and creative repetition of Cartesian doubt. But whereas Descarte’s “doubt” was a cognitive method by which all assumptions were put to the wall of doubt in order to see if they could measure up, Heidegger’s thinking as regards Dasein and its mortality.  If we look closely, we can begin to see how Heidegger’s retrieval of Descarte’s epistemological doubt provides the basis for an existential-ontological doubt as understood in “death.”

In Being and Time, Heidegger employs an existential analysis of “death,” by which he takes to signify not merely Dasein’s “ontic” death – that is, the event by which life ceases; but rather, as the ultimate impossibility of all Dasein’s possibilities. Death, then, undercuts all Dasein’s inauthentic certitude with respect to its average-everyday existence. Death, and the accompanying mood of anxiety that precedes an authentic stance on one’s own mortality and radical finitude, dis-closes Dasein as not the ground of its existence, but rather the ground of the “not.” In coming to grips with its ownmost possibility of death, its only certainty, Dasein realizes its possibility of individuating itself by choosing among its possibilities; yet, such decisions always involve a nullification of all other possibilities, since Dasein is incapable of exercising such infinite possibility. Therefore, death opens up Dasein as the ground of a “nullity,” the “not” as possibility rooted in the existential structure of Dasein allowing its possibilities to show themselves as they are in themselves.

It is in the mood of anxiety (Angst) that Dasein is presented with the possibility of coming to terms with its own mortality and finitude. Anxiety, contra fear, is a feeling of free-floating uncanny-ness. It is not something that Dasein can overcome, for it is a part of Dasein’s structure. Heidegger describes the feeling of anxiety with the German word “unheimlich,” which translated means “un-home-like,” or a “not-being-at-home.”  Authentic selfhood can only come about in Dasein’s confrontation and acceptance of its death as its “ownmost” possibility (that which can belong only to that individual Dasein) and as its “uttermost” possibility (the possibility that nothing succeeds death).

The relationship between “death” and “existential doubt” can be understood in two distinct manners.

First, the possibility of Dasein’s death as its ownmost possibility undercuts the myriad certainties and platitudes that make up its average-everyday being-in-the-world. When one experiences the grips of anxiety,  one is confronted with the radical uncertainty of human existence. Existential doubt, as opposed to epistemological or cognitive doubt, permeates through existence itself: casting its shadow over all of Dasein’s existence and de-limiting its possibilities through its ownmost impossibilities. Secondly, just as Cartesian doubt is the means by which the modern philosopher is to determine the unshakable foundations of philosophical thought, so too does death/existential doubt provides Dasein with the possibility of giving meaning to its existence and its world by cutting-through the “idle talk” and “curiosity” of its inauthentic mode of being-in-the-world — opening up (dis-closing) the abyss (abgrund) of Dasein’s existence which lets meaning arise through its existence.

“To be be” is to be finite; and to be “finite” is to be cast in (existential) doubt. Only mortals are besieged by doubt; by the exhausting and inescapable uncertainties of the abyss of human existence.