Edited by Peter Goodrich and Mariana Valverde
Nietzsche and Legal Theory is an anthology designed to provide legal and socio-legal scholars with a sense of the very wide range of projects and questions in whose pursuit Nietzsche’s work can be useful. From medical ethics to criminology, from the systemic anti-Semitism of legal codes arising in Christian cultures, to the details of intellectual property debates about regulating the use of culturally significant objects, the contributors (from the fields of law, philosophy, criminology, cultural studies, and literary studies) demonstrate and enact the sort of creativity that Nietzsche associated with the “free-spirits” to whom he addressed some of his most significant work.
Introduction: Nietzsche’s Half-Written Laws
PETER GOODRICH AND MARIANA VALVERDE
1 Gay Science as Law: An Outline for
a Nietzschean Jurisprudence
2 From a Biopolitical Point of View: Nietzsche’s
Philosophy of Crime
3 Pain, Memory, and the Creation of the Liberal
Legal Subject: Nietzsche on the Criminal Law
4 Law’s Ignoble Compassion
5 Aphorisms, Objects, Culture
6 Nietzsche between Jews and Jurists
7 Nietzsche’s Hermeneutics: Good and Bad
Interpreters of Texts
8 The Fourth Book of the Legislator:
Nietzsche and John Neville Figgis
9 Slow Reading
Preface and Acknowledgments
This volume has collective roots. It is the product of a number of meetings, shared interests, colloquies and conversations, and two symposia that turned around our thinking on Nietzsche’s value in the study of law. As Brian Leiter has recently remarked of the great nineteenth-century triumvirate of Marx, Freud, and Nietzsche, “only Nietzsche has remained apparently unscathed, his academic reputation and influence at perhaps its highest point ever.” The reference that follows that aperçu, however, is limited to Nietzsche’s reputation among the philosophers. The present collection attests amply to the fact that despite myriad isolated and incidental citations to Nietzsche, despite the seemingly fashionable quality of his name among certain sectors of legal theory, little by way of analysis or sustained attention attaches to the seemingly mandatory footnote invocations of his name. The Nietzsche effect in legal theory would seem to be that of a law of noncoincidence between nomination and critical appreciation. The lawyer’s resistance to Nietzsche makes it appropriate that the initial encounter between the philosophical author of The Will to Power and the academic institution of law should come in the paralegal discipline of criminology. The tradition in law schools has been to treat criminology as an interdisciplinary endeavor, and for this reason it is most frequently taught outside the law school and by nonlawyers. Whatever the case, and despite Nietzsche’s many contributions to the study of crime, criminal psychology, and the morality of punishment, he gains almost no mention. The initial impetus to produce this collection came out of this lacuna within criminology and specifically generated the contributions on crime, morality, and law. The second impetus was jurisprudential. As for late–twentieth-century legal theory, Nietzsche was everywhere and nowhere. His name was a sufficiently common token to require appropriation, but the nomination was legion and the referencing was seldom if ever followed through. Nietzsche stood for nihilism, romanticism, realism, psychologism, naturalism, and more. Worse still, the access to Nietzsche was secondary. It was the work of Derrida, Foucault, Baudrillard, Irigaray, and Deleuze that formed the primary reference to Nietzsche. He was read through his inheritors. His texts themselves were little more than a shadowy backdrop to deconstruction, genealogy, semiotics, the theory of difference, or the new cartography of a Thousand Plateaux. Nietzsche occupied the central position in the French theory that dominated the humanities and eventually impinged upon legal studies in the latter two decades of the past century. Nietzsche was a fin de siècle figure whose reputation reached its highest point in the fin de siècle that followed his own. For what it is worth, he had predicted that this would happen. It seems appropriate now, in reflecting back upon his influence, to separate his texts from the opinions of his interpreters and followers in a locus as distant and untutored as the legal academy. That is the second motivation for these contributions. The first three chapters take on and put to rest the common belief that Nietzsche had nothing useful to say about law or legal theory. His passionate attack on moral codes and universal norms is certainly a wholesale attack against both universal moral codes, whether religious or legal, and against Kantian-inspired experiments in formal procedural justice. Jonathan Yovel shows that one can take the persona of Zarathustra as both a preacher and an exemplar of a kind of justice. He proposes a species of lawmaking that does not proceed by way of static norms and fixed prohibitions, but rather by way of life-affirming creativity. Yovel’s chapter explores some ways in which the much-maligned notion of the will to power can be used fruitfully to think about lawmaking, and to develop among other things an argument about the ongoing education that Nietzsche’s free spirit continually demands of itself as well as of others.
Nietzsche’s Hermeneutics: Good
and Bad Interpreters of Texts
How can the same thinker pervasively attack legal argumentation while equally suggesting consistently that the law can stand as a signpost to justice? On the Genealogy of Morals’ second essay famously accomplishes both. Nietzsche there displays his customary dissatisfaction with contemporary modes of legal interpretation — and by contemporary I mean from the Gospel writers to the legal sociologists of the late nineteenth century — while also endorsing law (if properly propounded and interpreted) as the flawed but nonetheless best means to the end of controlling rancorous violence and establishing good relations among equally situated members
of a polity.
Let us heed this central text from On the Genealogy of Morals; in the eleventh aphorism of the second essay, Nietzsche first disposes of the link between justice and knee-jerk revenge or ressentiment, and then offers us this account of justice on earth:
To what sphere is the basic management of law, indeed the entire drive towards law, most connected? In the sphere of reactive people? Absolutely not. Much more so in the realm of the active, strong, spontaneous, aggressive. Historically understood, the place of justice on earth is situated as a battle against the reactive emotions, a war waged by means of that active and aggressive power that here uses a part of its strength to quiet the ceaseless rumblings of ressentiment and to enforce a settlement.
The most decisive move, however, made by the higher power against the predomination of grudge and spite, is the establishment of the law, the imperial elucidation of what counts in [the codifier’s] eyes as permitted, as just, and what counts as forbidden and unjust. … From then on, the eye will seek an increasingly impersonal evaluation of the deed, even the eye of the victim itself, although this will be the last to do so.
[I]n welcher Sphäre ist denn bisher überhaupt die ganze Handhabung des Rechts, auch das eigentliche Bedürfnis nach Recht auf Erden heimisch gewesen? Etwa in der Sphäre reaktiven Menschen? Ganz und gar nicht: vielmehr in der der Aktiven, Starken, Spontanen, Aggressiven. Historisch betrachtet, stellt das Recht auf Erden … den Kampf gerade wieder die reaktiven Gefühle vor, den Krieg mit denselben seitens aktiver und aggressiver Mächte, welche, ihre Stärke zum Teil dazu verwendten, der Ausschweifung des reaktiven Pathos Halt und Mass zu gebieten und einen Vergleich zu erzwingen.]
Das Entscheidenste aber, was die oberste Gewalt gegen die Ubermacht der Gegen- und Nachgefühle tut und durchsetzt — sie tut es immer, sobald sie irgendwie stark genug dazu ist —, ist die Aufrichtung des Gesetzes, die imperativische Erklärung darüber, was überhaupt unter ihren Augen als erlaubt, als recht, was als verboten, als unrecht zu gelten habe; … von nun an wird das Auge für eine immer unpersönlichere Abschätzung der Tat eingeübt, sogar das Auge des Geschädigten selbst (obschon dies am allerletzten …)]1
This is a remarkable passage because it at first seems so different from what some postmodernists have made of Nietzsche. There is much of the careful philologist in these lines; interpretation not only counts but can be grounded in a tradition of understanding that brooks interpretive departures with some skepticism. Good reading of the code is, furthermore, connected to leading a life of active accomplishment and of justice-doing among peers. And law — as much as law’s end, justice — needs not inevitably be associated with violence.2
Nietzsche here links to temporal, earthly justice the most controversial and value-laden aspect of his personal moral agenda: the ranking of nobility above ressentiment, of action above reaction, of the heroic Old Testament code above the rococo, privatized spiritualization of the Gospels.3 The will to power emerges from the realm of self-perfection into the world of socialized humanity. The individual striver — think of Moses, the Revolutionary generation, or some recent feminists — devotes some of her time to codewriting! And from the time of codification on, as the rest of this
aphorism tells us, people’s actions are gauged coolly and impersonally along the lines of their duty, as prescribed by the codifier.