Responding to Nietzsche: the Constructive Power of Destruktion
Law, Culture and the Humanities, 2006
36 Pages Posted: 29 Dec 2005
As a student of Hans-Georg Gadamer, and later a translator and important commentator on Gadamer's philosophy, P. Christopher Smith is widely acknowledged to be a leading hermeneutical philosopher. In a series of works, Smith has argued that Gadamer provides an important corrective to Nietzsche's caustic critical challenges, but that Gadamer's hermeneutics has no relevance for legal theory because law is just the manifestation of will to power. In this paper I argue that Smith misunderstands the nature of legal practice. Starting with a re-reading of the debate between Gadamer and Jacques Derrida about the legacy of Nietzsche's philosophy, I argue that Gadamer responds to Nietzsche's challenge in a manner that is exemplified in the critical dimensions of legal practice. Using the example of family law that Smith offers, I contend that Smith underestimates the critical and interpretive elements inherent in legal practice and captured in Gadamer's philosophy. I conclude that Gadamer offers a persuasive answer to Nietzsche's challenge.
Keywords: hermeneutics, critical theory, deconstruction, Heidegger, Gadamer, Derrida, P. Christopher Smith, Family Law
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