Tijdschrift Voor Filosofie 67 (3):527-546 (2005)

Authors
Aukje Van Rooden
University of Amsterdam
Abstract
Both Jean-François Lyotard and Jean-Luc Nancy have tried to understand the law within the heterogeneity of society by means of Kant's notion of 'as if'. Kant introduced this notion in order to respect the gap between reason and intuition; Lyotard and Nancy took it up to explain the lack of unity in society. In the margins of their work — footnotes and postscripts — they have discussed this theme and searched for the presuppositions and risks of each others position, as a result of which the 'as if' is considered from different perspectives and the philosophies of Lyotard and Nancy are illuminated inopposition to each other. Although this discussion commenced in the seventies, this theme is currently more topical than ever as is clear from the development of the Europeanand Iraqi constitutions. An analysis of the complex discussion between Lyotard and Nancy is given to provide insight into the principles that constitute the law. Both Lyotardand Nancy are trying to solve the problem of how to judge without a given rule. Lyotardis mainly concerned with understanding the 'as if' as an attempt to respect heterogeneity, while Nancy criticizes Lyotard for ignoring the constitution of this heterogeneity.Nancy uses the notion of 'dislocation' to understand both every case as an accident andthe neglect of this aspect by the jurisdiction. At the same time, we will elaborate on the reception of the Kantian thinking in French philosophy. Although the importance of well-known notions such as the sublime have been emphasized many times, the relevance of the 'as if' has not been thoroughly investigated. It will be shown that the notion ofthe 'as if' can be fruitful for understanding the creative element of jurisdiction, that is, for judging without rules
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