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.
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.
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. “
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.
‘When tradition […] becomes master, it does so in such a way that what it “transmits” is made so inaccessible […] that it rather becomes concealed. Tradition takes what has come down to us and delivers it over to self-evidence; it blocks our access to those primordial “sources” from which the categories and concepts handed down to us have been in part quite genuinely drawn.’ (¶6)
‘If the question of being is to achieve clarity about its own history, then this hardened tradition must be loosened up and the concealments which it has brought about must be dissolved […] But this destruction is just as far from having the negative sense of shaking off the ontological tradition. We must, on the contrary, stake out the positive possibilities of that tradition […].’ (§6¶¶8-9)
According to Heidegger, our ability to experience anything at all is made possible by the fact that things are capable of standing out for us as mattering in some way. In other words, we are the types of beings capable of having experience on account of the fact that we distinguish and differentiate the entities we encounter in the world – which, in turn, is only possible on account of the fact that we are the beings for whom our Being matters to us.
This is why Heidegger eschews the objective or scientific approach to philosophizing. For Heidegger, the moment we adopt a detached theoretical viewpoint, we replace the dynamic characteristics of being-in-the-world with a deformed reality consisting of perceivable present objects. Thus, the theoretical “de-vitalizes” the complexities of lived-experience, and thus only further conceals from view the “primordial truth” of Being. Furthermore, the theoretical conceals its own concealing, or rather, that it is wholly ignorant to the fact that it forces all of experience into categorical classifications through the creation of an impression that rigorous and detached observation of entities as present-to-hand is the only way to access truth. In effect, the objective approach not only gives us a distorted picture of reality, but also a distorted understanding of ourselves.
In contrast to objective methodology of the Western tradition, Heidegger set to work utilizing a radicalized version of phenomenology. Accordingly, Heidegger sees his own interpretation of the phenomenological method as the taking on the standpoint of the most basic way of being-in-the-world – which he takes as requiring that all philosophical starting points begin in that which is immediate and given to us. For Heidegger, this means that “primordial” insight into Being is available only by beginning with a committed involvement in the concrete situation by which the full complexities of lived-experiences can become understood as they are. Thus, unlike the scientific or naturalistic approach, Heidegger’s existential phenomenology avoids the pitfalls of a predetermined course of inquiry independent of its own findings; but rather, Heidegger tells us that the phenomenologist must be open to the findings, and thus continuously reflect on its position throughout its inquiry, rather than attempting to bring that which it finds into the fold of its predetermined foundation.
In many respects, Heidegger’s criticism of “objective truth” resembles Kierkegaard’s argument for “subjective truth” in Concluding Unscientific Postcript.” Kierkegaard noted that when we make objective observations, we take for granted that both the subject (observer) and his subjectivity (his consciousness of himself as an observer) are rendered functionally indifferent – and, as a corollary, truth itself becomes indifferent. None of this is meant to imply that neither Heidegger nor Kierkegaard saw any value to objective inquiry; rather, they were concerned with how such an approach is detrimental to philosophizing generally and specifically as it relates to Being/ontology (Heidegger) and existences (Kierkegaard).
If it is at all possible to measure the real value that inheres within life, then one must remove all contingencies and qualifications. This would require the possibility of an experience of naked existence as such.
To my knowledge, there is only one condition in which such an experience is possible, this is boredom. In boredom, one becomes lost in the present; separated from that which is meaningful to the individual in terms of his being possible. In the most extreme cases of boredom, one even loses one’s relation to his own self, and becomes free-floating “presence.” Boredom is epitomized by a break-down in intelligibility and meaning. Instead,the ubiquitous and inarticulable background practices that give us any understanding of what it means for anything to be anything at all come to the fore. Their vanity exposed, and having now become within the grasp of the understanding, are no longer to provide the foundation for the individual’s understanding of being. Thus, in consequence of the coming-to-the-fore of that by which anything is made meaningful at all, the self’s relation to everything that is, was, or could be, whether entities or the world generally, fades away into the background and one is left with existing as mere presence.
The onset of the most dreadful boredom thus amounts to our coming-to-terms with the nothingness of existence. When we are no longer able to rely on that which we previously relied upon to provide us with our most fundamental and pre-ontological understanding of being renders us hopelessly lost and alienated from all meaning in the world. In extreme boredom, what was previously concealed within the backdrop of our pre-ontological understanding of being is unconcealed, and thus manifests in a “clearing” by which we are forced to stare the abyss of existence in the face.
Only at this stage can we begin to develop an understanding of the worthiness (or lack thereof) in existence as such. Boredom thus takes on the task of stripping away the cultural practices upon which we take for granted as a necessary structure for our being-in-the-world. Accordingly, when our pre-ontological understanding of what it means “to be” is cleared away and naked existence presents itself as it is in its own, as is the case in acute boredom, it becomes possible to take notice of being without the imposition of the existential structure by which we are “given” on account of our thrownness in the world. Absent the necessary features of a “world,” this “breakdown” accordingly represents leaves us in a complete state of un-relation; where the individual has now lost his ability to relate to anything in a meaningful way.
The nothingness revealed by boredom makes all the more sense when we step back and consider the distressing nature of ennui generally. Often, human being is willing to go to great and exceptional lengths to escape boredom, including risking life and limb. Romanian philosopher Emil Cioran once said that the remedy for boredom is “fear,” and indeed this seems correct, insofar as the remedy need be of greater quality and strength than the disorder. But the fact that some people are driven to take incredible risks for no other reason than to pre-occupy themselves is a telling illustration. While by no means dispositive, it goes a long way in confirming our suspicion’s about existence itself as revealed through the paradoxical paroxysm of boredom.
This is all possible in the first place on account of boredom being a particular, if not somewhat “special” and revealing type of mood. Moods represent our “affectedness” to being, and thus in reflecting upon our moods, allow us to better comprehend the way in which we are receptive to being. If we’re willing to listen, then certain moods, such as boredom, despair, anxiety, etc., are capable of disclosing primordial truths with respect to being. In boredom, as in other existential moods, we no longer see ourselves in our technological understanding of being, where everything exists as function to be utilized by us towards some end. Only in our receptivity to this disclosing feature of our moods are we able to draw upon that which is revealed in order to truly “learn” something about human being generally.
Thus, in boredom, the vanity of existence becomes manifest and only when we’re prepared to listen to this message does it become clear that all is naught. That most of us are unwilling, unprepared, or incapable of extending the necessary receptiveness to the truth within boredom is exemplified in the way in which we commonly respond to boredom, and thus place ourselves back into the endless antagonism between boredom and suffering generally. It is our despair over boredom that engenders us to re-establish our relation to the world, and ignore boredom’s fundamental revelation that our existence is altogether pointless. Thus, in escaping boredom, one “falls back” into to the average everyday meaningfulness by which one becomes engaged in the futility of existence.
Yet in the end, boredom is an inescapable part of what it means to “be” the type of beings we are generally. Schopenhauer’s insight that all of existence consists in an eternal oscillation between boredom and suffering seems more prevalent in the present age than perhaps any previous epoch. With an attention span that appears to be measured in nano-seconds, we are perpetually bombarded with sensory stimulation to satisfy our deep craving for distraction. On the other hand, we continue to strive after and pursue our pointless goals and futile aspirations, and thus expose ourselves to the inherent agony encapsulated within. And so we are always at the mercy of boredom or misery. Only by virtue of our unwillingness or inability to take note of what’s revealed in boredom are we able to delude ourselves to continuing on any further.