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References
A. Tarkowsky,Time within Time: The Diaries 1970–1986 (London: Faber and Faber, 1994).
According to Heidegger, this is the most fundamental question of metaphysics and therefore of law. See M. Heidegger,Einführung in die Metaphysik (Tübingen: Max Niemeyer Verlag, 1987, Fünfte, durchgesehene Auflage), 1. Recently Baudrillard has stressed that “without appearances the world be nothing but one complete crime; a crime without a perpetrator, without a victim, without a motive.” For Baudrillard, the real question now is: “quo;Why is there nothing and not just something?” I find this too easy. If there were no appearances the world would not even be a crime, it would beno-thing. See J. Baudrillard,The Complete Crime (København: Det kgl. danske kunst-akademi, 1994) (my translation).
M Heidegger,Gesamtausgabe Band 12: Unterwegs zur Sprache (Frankfurt am Main: Klostermann, 1959), 248;On the Way to Language, trans. P. Hertz (San Fransisco: Harper, 1971), 128–129. Instead of “appropriation” (Hertz’s translation), I prefer “the event”. For further comments, see n.30.
J-F. Lyotard,The Different: Phrases in Dispute, trans. G. Van Den Abbelee (Minnesota: Minnesota University Press, 1988), 138.
R. Cover, “Nomos and Narrative” inNarrative, Violence, and the Law. The Essays of R. Cover, ed. M. Minov, M. Ryan, and A. Sarat (Ann Arbor: The University of Michigan Press, 1992).
With the loss of wonderment and faith, and with an excess of meaning attributed to our daily events, we can no longer translate the unusual into experience. Experience exists as something enacted outside the individual. In legal thinking we must pay attention to the unusual. For an excellent account of modern life’s destruction of experience, see G. Agamben,Infancy & History. Essay on the Destruction of Experience, trans. L. Heron (London and New York: Verso, 1993), 14.
See H. Putnam,Renewing Philosophy (Cambridge, Mass.: Harvard University Press, 1992), 178. Putnam refers to Cavell.
J.D. Caputo,Against Ethics (Bloomington and Indianapolis: Indiana University Press, 1993), 31.
See C. Douzinas & R. Warrington,Justice Miscarried. Ethics, Aesthetics and the Law (New York, London, etc.: Harvester Wheatsheaf, 1994), 1.
R. Wolin, ed.,The Heidegger Controversy. A Critical Reader (Cambridge, MA: MIT Press, 1993), 115.
M. Heidegger,What is Called Thinking?, trans. G. Gray (New York: Harper & Row, 1968), 8.
And there is a hope it seems. For Heidegger, thinking might save us from philosophy degenerating into single disciplines.
Supra n.13, at 21.
M. Heidegger, “The Question Concerning Technology”, inMartin Heidegger: Basic Writings, trans. D.F. Krell (San Francisco: Harper, 1977), 317.
Although we normally associate thinking as listening with the later Heidegger, it is already an issue in his early masterpiece. See M. Heidegger,Sein und Zeit (Tübingen: Max Niemeyer Verlag, 1986 (1926)), §34, 163;Being and Time, trans. J. Macquarrie & E. Robinson (Oxford: Blackwell, 1992), 206. “Indeed, hearing constitutes the primary and authentic way in whichDasein is open for its ownmost potentiality-for-Being-as in hearing the voice of the friend whom everyDasein carries with it.” This is the beginning of legal thinking since we see howDasein carries a friend with it, since listening to others implies a concern for others.
The publication ofHolzwege (Frankfurt am Main: V. Klostermann, 1950) marks the turning (die Kehre) of the later Heidegger.Holzwege (Feldweg) means woodpaths or simply path. In German etymology it also signifies the stage of “getting lost”. Woodpath is a magical image of thought that sees thinking as something that is on its way. “Path” is an arche-word in language and it turns toward contemplative man.
What is called thinking?, supra n.13, at 141.
M. Heidegger, “The Thinker as Poet”, inPoetry, Language, Thought, trans. A. Hofstadter (New York: Harper Books, 1971), 8.
M. Heidegger, “Letter on Humanism”,supra n.16, at 238.
Such groundnorms remain the basis for much modern analytical jurisprudence. See H. Kelsen,Reine Rechtslehre 2 Aufl. (Vienna: Deuticke, Franz Verlag, 1960, 2nd ed.). See also Kelsen’s disciple, A. Ross,On Law and Justice (London & Berkeley: University of California Press, 1959), who is one of the most problematic figures in legal philosophy, but also one of the hardest to avoid.
Caputo,supra n.10, at 37.
In early Greek philosophy, the law and existence (the reality of man) are a unity. Thinking appears as concepts which are both legal and ontological. Man never lived without an understanding of law in “pure being”. In a certain way, the origin of philosophy emerges together with the development of legal institutions, the codifying of laws, and the development (formation) of a conception of justice from something other than customary law. When Anaximander in his fragment speaks about “the being of the things that gives the law in contrast with un-law”, this cannot be understood as being either only a legal statement,or an ontological statement. The abstract and general character of the Being of beings will give a philosophical interpretation ofDike that will weaken the more everyday legal meaning. On the other hand, abstract meaning cannot be deduced from a pre-legal horizon as chronological. Ontology appears in a legal open-laid room. The interesting relation between law and ontology is stressed in F.M. Cornford,From Religion to Philosophy. A Study in the Origins of Western Speculations (Harper: New York, 1967), 7, 21 and 54, and G. Vlastos, “Equality and Justice in the early Greek Cosmologies”,Classical Philology 42 (1947), 156–178.
J.E. Harrison,Themis: A Study of the Social Origin of Greek Religion (London: Merlin Press, 1963), 485.
Ibid., at 490.
See P. Minkkinen, “Right Things: On the Question of Being and Law”,Law & Critique VII/1 (Spring 1996), 81, whereThemis is stressed as “an assertion ofDasein, that is ‘in the right’”.
M. Heidegger,On the Way to Language, supra n.4, at 128–129.
The wordEreignis is the most important invention of the later Heidegger. The word is untranslatable. In English there seems to be no better translation than the “event”. See Hofstadter’s translation in M. Heidegger,Poetry, Language, Thought (Harper Books: New York, 1971).Ereignis is a German pun. Heidegger sketches out the rift of the pun that inscribes a certain movement of the sign, almost a move of difference:Zeichen-Zeigen-Eigen-Ereignis. Zeichen-zeigen is the sign versus showing. See M. Heidegger,On the Way to Language, supra n.3, at 121. In a later work published fromGesamtausgabe Band 65: Berträge zur Philosophie (Vom Ereignis), (1936–38), Heidegger developed his poetic philosophy fromEreignis as the concept of truth. In this work Heidegger claims that philosophy has to start from a new beginning which takes off from pre-Socratic thinking. This is no surprise. In a sense, all Heidegger’s philosophy is a “longing” for a new beginning, as Rüdiger Safranski has expressed it.
M. Heidegger, “The Thing”,supra n.30, at 179.
Ibid., at 180.
J-L. Nancy seesEreignis as the limit of language:The Inoperative Community, trans. P. Connoret al. (Minneapolis and Oxford: University of Minnesota Press, 1991). See the section on “ethics as poetic thinking” below.
G. Agamben,The Coming Community, trans. M. Hardt (Minneapolis: University of Minnesota Press, 1993), 68–69.
M. Heidegger, “Letter on Humanism”,supra n.16, at 214. See also Heidegger,On the Way to Language, supra n.3, in the essay “The nature of language”, at 88.
In his book,Given Time I. Counterfeit Money, trans. P. Kamuf (Chicago: University of Chicago Press, 1992) Jacques Derrida refers to Baudelaire’s taleLa Fausse Monnaie (Counterfeit Money). Here the narration of an insignificant event gives access to the condition for any gift, the creation of the event in another person’s life. The narrator and an acquaintance pass a beggar on a bridge and the friend gives the beggar a big alm, a two-franc-piece. However, it turns out that the friend only gave the beggar a counterfeit coin, and so it appears that the friend has moved beyond any economy, and any law, to an economic paradise where he succeeds in giving without having to pay for it. Furthermore, he has succeeded in creating an event in the beggar’s life, since because of the counterfeit money-piece, he can either have the opportunity of exchanging the piece for several real coins or he can get arrested as a counterfeiter. This giving is never present in any economic or legal rationality. It is the giving of time.
M. Heidegger,Unterwegs zur Sprache, supra n.3, at 247 (my translation).
On the description of Language as event, see particularly two essays: “The nature of language” and “The way to language”, inOn the Way to Language, supra n.3. See also M. Heidegger,Identität und Differenz (Pfüllingen: Neske, 1990), 24–27.
M. Heidegger,Identität und Differenz, ibid.(. at 26 (my translation).
In “What is Called Thinking?” Heidegger writes: “If we may talk here of playing games at all, it is not we who play with words; rather, the essence of language plays with us, not only in this case, not only now, but long since and always. For language plays with our speech — it likes to let our speech drift away into the more obvious meaning of words. It is as though human beings had to make an effort to live properly with language. It is as though such a dwelling were especially prone to succumb to the danger of commonness ... This floundering commonness is part of the high and dangerous game and gamble in which, by the essence of language, we are the stakes”,supra n.16, at 365.
Perception cannot in itself constitute experience. Language penetrates all, even the senses, as stressed by the Danish philosopher, Ole Fogh Kirkeby,Selvnødighedens filosofi [in EnglishThe Philosophy of Selfcessity] (Aarhus: Modtryk, 1996).
M. Merleau-Ponty,Phenomenology of Perception, trans. C. Smith (London: Routledge and Kegan Paul, 1962), Introduction,xxi.
Ibid., at 400.
M. Heidegger,On the Way to Language. supra n.3, at 123.
Here I am inspired by Ole Fogh Kirkeby,supra n.41. For a similar treatment of language, see G. Agamben,Language and Death: The place of negativity, trans. K.E. Pinkus with M. Hardt (Minneapolis and Oxford: University of Minnesota Press, 1991), 197: “We can only think, in language, because language is and yet is not voice.” The suspension of the voice in language constitutes the problem in philosophy and the problem for legal thinking.
M. Heidegger,Unterwegs zur Sprache, supra n.3, at 266;On the Way to Language, supra n.3, at 135. See also Heidegger, “Letter on Humanism”,supra n.16, at 241: “The fittingness ofsaying of Being, as of the destiny of truth, is the first law of thinking.” And finally the letter ends with separating philosophy from thinking: “The thinking that is to come is no longer philosophy, because it thinks more original than metaphysics — a name identical to metaphysics. ... Thinking gathers language into simple saying. In this way language is the language of Being, as clouds are the clouds of the sky. With its saying, thinking lays inconspicuous in the furrows in language. They are still more inconspicuous than the furrows that the farmer, slow of step, draws through the field”,supra n.16, at 242.
P. Nonet. “In Praise of Callicles”,Iowa Law Review (1989), 807–813, muses about the nature of dialogue and rhetoric and their fundamental importance for law. At 812–13 Nonet says: “True speech does not convey ideas, but lets a matter of concern reveal itself in its truth. Accordingly, true listening consists not in seeking to grasp what the speaker has in mind, but in attending to the matter of which the spoken word speaks. True dialogue is not found in communication, pure or impure, mediated or unmediated. Its essence rather lies in shared openness to being, in ‘a thinking-together through the self-manifestation of the thing of concern’.”
Unterwegs zur Sprache, supra n.3 at 253.On the Way to Language, supra n.3, at 122.
Supra n.34, at 54.5, “In my way of speaking we must presuppose the immediate being-there of a non-linguistic element which language cannot say but only show.”
F. Dallmayr, “Heidegger On Ethics and Justice”, inTransitions in Continental Philosophy. ed. A.B. Dallery et al. (Albany: State University of New York Press, 1994), 203.
M. Heidegger, “Der Ursprung des Kunstwerkes”, inHolzwege (Frankfurt am Main: Klostermann, 1963, Vierte Auflage), 64.
In his essay, “Critique of Violence”, Walter Benjamin sees justice as a unique historical event. Justice becomes a tragic moment because it maintains our attunement and finitude in the singularity of the event. For Benjamin it is the unfathomable event that grants the possibility of new law. The legal hermeneutic of Benjamin is tragic and poetic because language forms the limit of the legitimacy of discourse and understanding. See W. Benjamin, “Critique of Violence”, inReflections, trans. E. Jephcott (New York: Schocken Books, 1986).
M. Heidegger:Erläuterungen zu Hölderlin’s Dichtung (Frankfurt am Main: Vittorio Klostermann, 1981), 41 (my translation).
Supra n.51, at 34.
In Van Gogh’s picture of peasant shoes we see a world in the shoes and yet the work maintains the earth, “From the dark opening of the worn insides of the shoes the toilsome tread of the worker stares forth, etc. ... In the shoes vibrates the silent call of the earth..”Ibid., at 33–34.
Unterwegs zur Sprache, supra n.3, at 33.
Supra n.51 at 37. “The Origin of the Work of Art”,supra n.31, at 42.
Supra n.31, at 177.
Heidegger says that in setting up a world the work causes the word to speak:supra n.51, at 35; “The Origin of the Work of Art”,supra n.31, at 46.
A valuable contribution to this line of thinking is found in K. Ziarek,Inflected Language. Toward a hermeneutic of nearness. Heidegger, Levinas, Stevens, Celan (Albany: State University of New York Press, 1994). My account is indebted to this work.
“On the Way to Language”,supra n.3, at 257.
Supra n.60, at 10.
Ibid., at 5.
Ibid., at 60.
This essay aims to show that respect for others comes from a poetic thinking that listens to the soundless saying. There is a “chiasmic otherness that influences and inflects language: the enigmatic character of giving inEreignis and the entraced ethicity of language, its exposition to the other.”Supra n.60, at 102.
“On the Way to Language”,supra n.3, at 108.
Supra n.60, at 89.
Ibid., at 92.
D.F. Krell,Lunar Voices: Of Tragedy, Poetry, Fiction, and Thought (Chicago and London: University of Chicago Press, 1995), 60.
Supra n.60, at 179.
Wittgenstein und der Wiener Kreis. Werkausgabe Band 3. Gespräche, ausgezeichnet von Friedrich Waismann (Suhrkamp: Taschenbuch Wissenschaft, Erste Auflage, 1984), 68–69.
“On the Way to Language”,supra n.3, at 27, 242.
Ari Hirvonen has named this call (Ruf), the call ofagape, the Greek word for love and the presupposition for our being together in community and a possible justice. See A. Hirvonen, “Civitas Peregrina: Augustine and the possibility of non-violent community”,International Journal for the Semiotics of Law VIII/24 (1995), 263.
G. Deleuze and F. Guattari,What is philosophy? trans. G. Burchell and H. Tomlinson (London, New York: Verso, 1994), 41. The plane of immanence is a desert populated by legal concepts. The plane of immanence is the image of thought for law,ibid. at 37.
Supra n.60, at 104.
R. Musil,The Man without Qualities, trans. S. Wilkins (New York: Knopf, 1995), ch.62, at 270.
M. Heidegger,Erläuterung zu Hölderlins Dichtung. Gesamtausgabe, vol.4 (Frankfurt am Main: Vittorio Klostermann, 1981), Hymn:Andenken, 156–194.
Ziarek says “the question of being or of event (Ereignis) would have to be approached from the point of view of listening and ‘friendship’ with others rather than through the conjunction—the same (das Selbe) — of being and thinking”,supra n.60, at 202–203.
Aristotle,Nichomachean Ethics, Book IX, Ch.8 inA New Aristotle Reader, ed. J.L. Ackrill (Princeton, New Jersey: Princeton University Press, 1987), 455.
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An earlier version of this paper was presented at the Critical Legal Conference’s 1995 Annual Meeting at the University of Edinburgh. I am grateful to my friend Richard Edwards, lawyer and thinker, who has read several earlier drafts on this project and with whom I have had the pleasure of many inspiring and seducing conversations on Law, Friendship and Finitude. The article is dedicated to him.
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Ljungstrøm, A.C. The silent voice of law: Legal philosophy as legal thinking. Law Critique 8, 71–95 (1997). https://doi.org/10.1007/BF02699762
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DOI: https://doi.org/10.1007/BF02699762