Gay Science as Law: An Outline for a Nietzschean Jurisprudence
HALF-WRITTEN LAWS: NIETZSCHE AND LEGAL THEORY, Peter Goodrich and Mariana Velvedere, eds., Routledge 2005
28 Pages Posted: 11 Dec 2006 Last revised: 4 Jul 2021
Date Written: 2003
The question examined in this study is not merely how a Nietzschean critique of law would look had Nietzsche ever applied his genealogical method to the question of law, but also what positive function Nietzschean philosophy may ascribe to law, and how law must then be transformed. The methodological parable imagines a post-genealogy or post-ressentiment phase of the human condition, akin to the Marxist post-revolutionary phase: how would law look for the “person of power” - overman or otherwise - who needs to live among others? How is normativity possible - what are its forms and functions - in a social world that has undergone a reevaluation of all values?
The study traces three possible models for conceptualizing law in Nietzschean terms, each requiring a radical shift from traditional (in different contexts: liberal, Christian, bourgeois) conceptions. The first is play: law as affirming and embracing the essence of the Dionysian, which is perpetual becoming. Play requires us to let go of law's role as the curtailer of arbitrariness. An integral part of the Nietzschean program, it requires a radical reevaluation: not just law's content is overcome, nor merely its bourgeois forms (in Pashukanis' critical terms), but its internal or inherent values of certitude and stability are challenged as well. The model I offer for play is not Zarathustra's dicethrow but Borges' The Lottery in Babylon. The second model is that of resistance, framed by Nietzsche's analysis of power and Deleuze's distinction between active and reactive forces. The insight here is that power requires resistance, and it is law's primary function to empower the other in order to invest value in meeting and confronting her; thus the monism of the will to power not only does not do away with normativity in the public sphere but actually requires it—but for goals opposite to those of liberalism. Resistance is linked to the third model, fashioned after Nietzsche's model of education: here, law performs not as a socializing agent but rather as a liberator of authenticity. Its function is analogous to that of a mentor whose role is to ultimately encourage the pupil into coming into her own will, shedding ressentiment and bad conscience in an active, i.e. non-conscious way; in its relation to consciousness it is the opposite of psychoanalysis. A fourth consideration is then offered, the role of normativity in self-overcoming, or self-legislating; namely, how does normativity figure in the will to power's most significant challenge.
While all these models work from an interpretation of the will to power as becoming, the last two are especially dependent on the active-reactive distinction. The cornerstone is not to mix up power with representations of power; to realize that the case is not the will that desires power (as an object of desire, this would necessarily involve a representation of power) but power that wills becoming. In dealing with this metaphysical question I expound on a similar crucial interpretation, originally offered by Deleuze; however, I break off from Deleuze's claim that the will to power has nothing to do with any notion of struggle.
I add three points that may be termed methodological or contextual. The first is positioning Nietzsche's limited discussion of law and politics as a derivative of his metaphysics of the will and treatment of moral psychology, not as an independent topic to be searched and indexed in some textual corpus. The second is to understand the question of normativity in its particularly Nietzschean sense, not in the Kantian sense of uncovering the conditions that entail any synthetic, a-priori sentence (such as normative ones).
The last section places the Nietzschean project in a larger pattern that defined radical thought in the late nineteenth and early twentieth centuries, and whose other cases are Marx and Freud: a new metaphysics (will to power/materialism/id) that uncovers a state of bondage, psychological and material, in which law plays a pivotal role in its function of reinforcer and supplier of a legitimizing language (respectively: of ressentiment, of the relations of production, of Oedipus and the bourgeois psyche); and finally - the radical, if partial ways of overcoming bondage that are not mutually translatable - genealogy, revolution, psychoanalysis.
Keywords: Nietzsche, Jurisprudence, Kafka, Borges, Marx, Freud, Deleuze, Psychoanalysis, modernity/postmodernity
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