3
Peter R. Sedgwick
1 Nietzsche as law’s enemy: Vining and Habermas
Law, Joseph Vining comments, is all too often akin to ‘the ambient love of a parent’ or the presence of air (Vining 1995, p. 3). If asked to compile an overview of the nature of the world they dwell in, adored child and breathing person alike generally omit love and air from their respective accountings. Love and air are things which are never mere ‘things’: they are vital to the well-being of person and child. Yet, these essentials are often unacknowledged. ‘Law is like these,’ Vining argues. It is something hidden, yet it facilitates sense, for it is the invisible presupposition at work in any discussion of whatever else there is; the ‘taken for granted’ component of our mundane, everyday, meaning-rich world:
Literary and philosophic schools that find in a phrase of Rimbaud or Wallace Stevens or a cry of Nietzsche or Kierkegaard the turning point in Western thought give no thought to law. Physicists who see now only a tiny gap between their symbolic systems and a Theory of Everything, biologists who place man among the fossils, economists who plan the future, give no thought to law. [. . . It is . . .] the great overlooked fact in modern thought. (Vining 1995, p. 3)
Vining argues that we generally neither notice law nor realize its centrality to our identity. Worse still, we even suffer from the delusion that other things, very significant things, can be considered in a manner safely isolated from law. The physicist who talks of ‘laws of nature’ does so with little thought to the legal genealogy that winds its way through the scientific idiom of speech; the poetic craving for transcendence cannot convincingly claim to draw its inspiration from a realm not already immersed in the language of law, for language (the medium of poetry) is itself already permeated by a sense of the lawful. The same goes for sociology, which ‘assumes law and cannot replace it. Like economics and political science, sociology and even anthropology are laden with legal terms that have no meaning except as writer and reader shift to the understandings involved in the exercise of legal method’ (Vining 1995, p. 224). Law is invisible precisely to the extent that we unquestioningly take it as a given, and it is taken as given precisely because it is an essential condition of our world. What would it mean to assume a world without law? To ask such a question, Vining holds, is to embark upon the path towards law’s ‘true acknowledgement,’ one that ‘would threaten radical change’ hitherto undreamt. One important feature of this radicalism would be that it would force upon us the need to rethink commonly separated categories of thought and experience: ‘Law, philosophy of mind and metaphysics are interwoven. They are dependent, not independent of one another’ (Vining 1995, p. 4). The fact of law (that we live in a world permeated by the thought of law; that we behave in accord with such thought constantly and unthinkingly) has implications for our understanding of mind. In short, to ask what law is means to engage with the matter of what it means for us to be persons.
Vining’s conjoining of questions of law, mind and metaphysics is motivated by an anxiety about two contending but related tendencies at work in secular modernity: positivism and historicism. Positivism reduces meaning to a methodology that mimics the example of the empirical sciences in a simplistic and reductive way. For the positivist, legal systems are webs of convention defined primarily by their internal consistency. Any consideration of such conventions is regarded as being independent of their merit. The consequence of this is positivism’s driving of a wedge between matters of fact concerning legality and matters of metaphysical and ethical import.1 Vining calls historicism ‘positivism’s enemy’ (Vining 1995, p. 4).2 But the two are nevertheless close kin, for ‘historicists, [are] the children of science’ (Vining 1995, p. 161), no less than positivists. The historicist approach likewise undermines the possibility of discussing ethical content in the thought of law. Historicism’s contention is that cultural and economic conditions constitute the self. In what Vining regards as its most extreme forms, those of ‘dialectical materialism’ and postmodernism, the historicist tendency enacts ‘the leaching of the person away into history’ (Vining 1995, p. 208): ‘Modern (or postmodern) historicism, with its ancient roots in stoicism and courage despite despair, dissolves the self into process – linguistic, cultural, social, economic, political – denies the self, and denies the possibility of authority because, it is said, there is no foundation’ (Vining 1995, p. 161). Historicism is thus little more than a variant of positivism. Against this, Vining argues for a view that seeks to ground law in a realm of significance generated not out of the relations between material entities but in the hermeneutics of an engagement of persons in search of authority. The self is not a malleable and passive material whose significance is exhausted by empirical or historical observation. Selfhood presupposes self-interpretation. Self-interpretation springs from a world of communal relations that stands out from nature and mere things. Community, through interpretation, constitutes the self and endows it with the ability to ponder the nature of authority. The acknowledgement of authority thereby intimates a sense whose meaning can only be grasped by transcending a contemporary understanding increasingly trapped within metaphors of materiality (see Vining 1995, p. 161). The dominant instrumentalist tendency of modern thought, which is marked by an obsession with thing-hood, categories and definitions, cannot, on this account, adequately think the self because it has divested itself of the means of doing so. Selfhood, Vining urges, must be thought in the light of a conception of law as a practice of self-disclosure, one in which it comes to light as recognition, commitment and obedience to a mutually inhabited space of community, a space in which authority is lived rather than positivistically ‘observed.’
Positivism has its sources. Vining seeks to unearth them. One is Nietzsche:
A Source of Positivism. Nietzsche was no lawyer. Law’s authority, he proclaims, is in its pure imperative, its non sense. A book of law does not refer to reasons, “for if it did so, it would lose its tone of command – the ‘Thou shalt’ which enforces its obedience; and this is the heart of the matter. . . . The authority of law is established on the twofold principle: God gave it, our ancestors lived it”.
No lawyer can point to an it. (Vining 1995, p. 241)
This is Nietzsche conceived as outsider and law’s enemy. Like the legal positivist whom he is said to prefigure, Nietzsche fails to grasp the meaning of law in terms of a search for the reasons and justifications underlying authority. Law understood as pure command, as Nietzsche appears to be envisioning it (the text in question is §57 of The Antichrist (see Nietzsche 1976a)), is an empty structure evacuated of the sense that energizes it. As pure command, law is sheer senselessness and unbridled force; a thing that animates unthinking behaviour rather than provoking reflective thought. Nietzsche, Vining suggests, is naïve. He lacks lawyerly wisdom and ignores the fact that the word ‘law’ does not signify an ‘it’; that authority and the search for it can neither be pointed at, in a manner akin to the way in which we point at mere ‘things’ like rocks and stones, cups, chairs or pencils, nor be reduced to simple, unquestioning acts of obedience. In addition to associating him with positivism, Vining also gestures towards a Nietzsche lurking behind the other aspect of modern theory which emphasizes the ‘dissolution to process’ paradigmatic of the historicist draining-away of the self. This is the Nietzsche who argues that ‘the word “I” as a subject in language may be . . . false to experience and there may be no “I”’ (Vining 1995, p. 175).3 Like one of his most famous followers, Michel Foucault,4 Nietzsche is envisaged as offering an authorless, authority-less and law-less account of selfhood that engulfs it and its history in the contingencies of process and compulsion and so renders both devoid of the redemptive possibilities of genuine sense.
Whether conceived in terms of the positivistic emphasis on mindless obedience to convention or the historicist dissolution of the subject into the contingency of history, the two conceptualizations of Nietzsche offered by Vining point to the image of Nietzsche as a thinker of force and power. On such a view, we are faced with something reminiscent of the starkest consequences of the death of God as Nietzsche rehearses it in The Gay Science (see Nietzsche 1975, §125). Denied recourse to a divine will and order impermeable to the vicissitudes of history, a materialist inclined modernity is compelled, like Nietzsche’s madman, to mourn not only God’s passing but also to bear helpless witness to the shrinking of the conditions of its own self-understanding into an historically constituted condition of bland thing-hood. Here, in the words of Francis J. Mootz III, is the essence of ‘Nietzsche’s as-yet unanswered challenge to law’ (Mootz 2007, p. 128).5 With the death of the subject at the hands of a philosophy of power comes the death of natural law on the one hand and the historicization of community on the other. This double consequence undermines authority and initiates a fractured modernity divided against itself. Liberal modernity’s reliance on the belief that universal individual rights ground the legitimacy of law and the constitutional state stands revealed for what it is: a contingent fabrication haunted by the taint of partiality. What were once deemed ‘universal rights’ are exposed as nothing more than expressions of dominant power relations solidified into the habitual frameworks of conventions and hence historically relative. In the words of Mootz, ‘If natural law died along with God, we appear unable to avoid the Nietzschean conclusion that legal practice is just the play of will to power. Against the force of this Nietzschean challenge, legal positivism has utterly failed to fulfil its promise of providing guidance after the eclipse of natural law’ (Mootz 2008, p. 1).6 Where Mootz notes positivism’s failure, Vining notes its complicity. Positivism has not simply failed in the wake of natural law; positivism, in conjunction with its historicist rival, is actually responsible for the legitimation crisis that modernity is forced to confront. Nietzsche’s thought, in turn, stands revealed on both Vining’s and Mootz’s accounts as something that naturalizes to the extent that it seeks to dissolve the legacy of positivistic and historicist modes of analysis into a chaotic agglomeration of power relations. The positivist and historicist paths lead inexorably to the same unpalatable naturalistic impasse.
Aspects of the above discussions of Nietzsche and power are probably familiar to anyone acquainted with the writings of Jürgen Habermas. For Habermas, too, Nietzsche’s thought performs an inexorable interlinking of knowledge with interests by way of a conjoining of perspectivism and power. Perspectivism, which holds that we cannot grasp a single, unified reality, but must engage with the world from multiple standpoints, implies that universal validity cannot be attributed to our knowledge claims or moral discourse. Nietzsche arrives at this position, Habermas notes, naturalistically (Habermas 1971, p. 297). In other words, Nietzschean perspectivism acts out the implications of positivism and historicism by stating that the sources of our beliefs are rooted in biological, social and historical conditions. This observation paves the way for Habermas’s characterization of Nietzsche as the quintessential thinker of will to power. Reason, Habermas argues, is for Nietzsche nothing more than an instrument which furthers survival (Habermas 1994, p. 121). Nietzsche thus ‘explained the complete assimilation of reason to power in modernity with a theory of power that was remythologized out of arbitrary pieces and that, in place of the claim to truth, retains no more than the rhetorical claim proper to an aesthetic fragment’ (Habermas 1994, p. 120). Values rendered as fragments become matters of taste, with the consequence that judgements concerning truth or right are transformed into expressions of the sensibilities and interests of particular groups. For Habermas, Nietzsche is like the positivist in stripping away value in order to reveal beneath it an instrumental partiality that gives rise to a debilitating evaporation of sense.7 Nietzsche therefore shares with positivism a vulnerability to the charge of ‘decisionism,’ that is the belief that all judgements of value express decisions that are not arrived at in a rational manner but are utterances whose basis rests on nothing more than arbitrariness and caprice. In turn, Habermas argues, Nietzsche’s aestheticization of experience and judgement allows him to challenge ‘the fusion of validity and power’ in a manner that launches him on the path of a radicalization of ‘the counter-Enlightenment’ (Habermas 1994, p. 120). Radicalized in this way, counter-enlightenment shifts into a hybridized romanticism which deploys the instrumentalism derived from the model of the sciences in order to undercut rationality and enact a critique ‘disburdened of the mortgages of enlightenment thought’ (Habermas 1994, p. 125). For Habermas, this romanticism totalizes in its own specific and disturbing manner: it inhabits ‘a world fallen back into myth, [one] in which powers influence one another and no element remains that could transcend the battle of the powers.’ In short, the philosophy of power expresses the ethos of a romanticism that encloses modernity, smothering the radical, liberating tendencies of enlightenment beneath the detritus of history and reifying reason and the self.
Like Vining, Habermas sees in Nietzsche a figure who challenges the integrity of law in modernity by recourse to strategies derived from positivistic discourse. This is enacted above all in Nietzsche’s challenge to the sources from which modern law might seek to claim its authority. On this view, Nietzsche’s thought exemplifies a decisionism of the worst kind, for it reduces the sources of political sovereignty and law-giving to nothing more than the uncritical articulation of mythical pre-constitutional power relations. Nietzsche’s decisionist-positivist approach thereby seeks to explain away the sources of modernity by reducing their significance to a pathology of perverse psychological and social conditions. The sphere of law, which for both Habermas and Vining is bound up with the ‘search for authority’ (Vining 1995, p. 248), is unravelled by Nietzsche through a genealogical analysis which reduces the self and its attributes to the outcome of nothing more than an appalling arbitrariness. Nietzsche’s critique thereby threatens to reduce the modern constitutional state to rubble by threatening the sanctity and authority of law.
Is such an interpretation of Nietzsche entirely justified? Is a characterization of him as endorsing a brutal, positivistic philosophy of power run amok and lacking lawyerly dialogical wisdom a just one? In what follows, I argue that there is rather more to Nietzsche’s discussion of the sources of law than the above accounts are willing to concede. Indeed, I will seek to show how Nietzsche’s thought can make a positive contribution to the concerns about modernity raised by Vining and Habermas. In order to engage with this, Nietzsche’s understanding of law needs to be set in the context of a more sensitive articulation of his naturalism. Such naturalism is no reductive positivism; nor does its embracing of history amount to a simplistic historicism which swallows the subject in historical contingency. A clue as to how to provide this articulation is given in On the Genealogy of Morality: ‘If anyone finds this script incomprehensible and hard on the ears, I do not think the fault necessarily lies with me. It is clear enough, assuming, as I do, that people have first read my earlier works without sparing themselves some effort . . .’ (Nietzsche 1994, Preface, §8). In other words, Nietzsche’s naturalism as it is expressed in his late writings must be approached by of consideration of its elucidation in his earlier texts. The discussion that follows heeds the advice of Genealogy by turning to Nietzsche’s so-called ‘middle period’ writings, Human, All Too Human, Daybreak and The Gay Science in order to clarify ideas associated with Nietzsche’s late writings. In this way, I hope to offer an interpretation of the relation between Nietzsche, naturalism and law that responds (however tentatively and insufficiently) to his call for those interested with his thinking to engage in a ruminative ‘art of reading’ (Nietzsche 1994, Preface, §8).
2 Naturalism, nature and law
When we talk of law, for Nietzsche, we do so at two habitually related levels of meaning. We speak of the laws that claim legitimacy with regard to the governance of persons; and we speak of ‘laws of nature,’ such as the physicist does when discussing natural phenomena. Our presuppositions concerning the one, he holds, constitute the basis for our articulations concerning the other. One gains insight into this contention if one turns to Nietzsche’s conception of naturalism. Naturalism, according to Nietzsche, can appear to be somewhat paradoxical, for it involves the ‘de-naturalisation’ of powerful cognitive habits. It warns us against succumbing to the inclination to interpret our environment in ways that, because they are amenable to us and so habitual, seem obvious and ‘natural.’ Thus, as The Gay Science tells us, we should be wary ‘of thinking that the world is a living being’ and also ‘of calling the universe a machine . . .’ (Nietzsche 1975, §109). Such judgements concerning the world we inhabit impart a sense of lawfulness that is unwarranted. This sense of lawfulness legitimates a complacent tendency to see order where there is none. From the naturalistic perspective, as Nietzsche conceives of it, the world does not conform to the law-like conditions that govern the beliefs of the living. The universe does not harmonize with the sense of order and purpose inherent in our concept of mechanism. Our environment does not correspond to the contrasting notions of design and accident; it pertains neither to reason or unreason. A naturalized world looks ‘unnatural,’ for it defies everyday thought by presenting a world devoid of the kind of everyday sense and order we are inclined to locate in it. Nature, Nietzsche contends, neither strives for anything (as we do), nor exhibits any perfection (as we hope to do), nor pertains to the fulfilment of our aesthetic or ethical impulses (as we are inclined to hope of it). With this observation, Nietzsche takes us straight to the matter of nature’s relation to the notion of law. Nature, he says, ‘knows no laws’:
Let us beware of saying that there are laws in nature. There are only necessities: there is nobody who commands, nobody who obeys, nobody who transgresses. Once you know there are no purposes, you also know that there is no accident; for it is only beside a world of purposes that the word ‘accident’ has meaning. . . . But when will we be done with our caution and care? When will all these shadows of God cease to darken our minds? When will we complete our de-deification of nature? When may we begin to naturalize our humanity with a pure, newly discovered, newly redeemed nature? (Nietzsche 1975, §109)
Metaphysics, Nietzsche argues in this passage, is mythology: it denaturalizes the world by thinking it in terms of illusory conditions that invoke a false transcendence – this, above all, in terms associated with divine will. A nature understood in terms of the divine is one regulated by universal law. Metaphysics conceptualizes nature as something subordinate to notions of purpose, command, obedience, limit and transgression. That the world is understood as a realm of law-like elements is taken by the metaphysician to warrant the further belief that such elements are necessarily objective components of that world. For metaphysics, necessity is law and law is a necessity. Naturalism warns us against considering the relation between nature and law in these terms. Any metaphysical talk of nature as subordinate to the force of law, even of the kind indulged in by the natural scientist, expresses a deep, unconscious urge to understand the environment in terms amenable to human sensibilities. Naturalism reveals a world radically different. It questions the commonly assumed equation of law with necessity by revealing its mythical roots and thereby envisages a world devoid of any law-like element – one devoid of our usual conception of necessity. In this way, naturalism dissolves myth and as it does so it simultaneously shatters the positivistic pretension to claim objective validity for any construal of a natural world that corresponds to the notion of ‘natural’ law, moral or physical.
Section 109 of The Gay Science demonstrates well how Nietzsche’s naturalistic approach does not passively endorse a positivistic attitude, but rather exhibits a tendency to turn the positivistic spirit of natural science against itself. Science may gesture in the direction of a revelation of the anthropomorphic limits of our common conceptual habits, but the natural scientist does not grasp the implications of his or her own demythologizing tendencies. On its good days, science may yield valuable insights concerning method. On its bad days, as Nietzsche points out in Beyond Good and Evil, science hypostatizes these insights in a manner that replicates the most questionable metaphysics. This occurs when, for example, the metaphor of mechanism solidifies law into thoughtless literalism, such as when the physicist succumbs to the temptation to think in terms of ‘nature’s conformity to law’ (Nietzsche 1973, §22). Insofar as the physicist remains inclined to think that they can uncover an objective ‘law of nature’ at the heart of phenomena he or she is deluded.8 What the physicist actually does is no more than describe and label phenomena on the basis of inherited conventions of thought, which means that ‘physics too is only an interpretation and arrangement of the world (according to our own requirements, if I may say so!) and not an explanation of the world. . .’ (Nietzsche 1973, §14). Any science that seeks to overcome metaphysics through a physics that would explain reality through a causal language that invokes concepts of mechanism and lawfulness does nothing more than unwittingly rearticulate the metaphysical delusions it takes itself to have overcome.
One should not conclude from this that Nietzsche holds we should abandon talk of law as something that consists of nothing more than pointless metaphysical projection, or that he advocates the wholesale abandonment of the scientific ethos.9 What matters for Nietzsche is that we pay attention to the difference between understanding law as it relates to humankind and the thought of law as it is uncritically applied to the world. The latter is error: the world is inhuman insofar as it lacks all law. The necessity that pertains to it (and Nietzsche clearly thinks that necessity is a notion that is applicable to our environment10) is not the kind of necessity that we commonly assume when we take it to be an analogue of law. Indeed, the discussion in Section 109 of The Gay Science presents nature in terms of a necessity so resistant to the kind of thought that would bind it in law-like concepts that even notions epitomizing what we generally conceive to be the opposite of lawfulness – namely, chaos and anarchy – are dismissed as being inapplicable to it. The world shows itself to us, but we cannot speak its inner reality in the language of law. What can be spoken of is always our relation to our world. When we talk of such matters as law we in actuality talk of ourselves in relation to the environmental pressures we must face; pressures which in being refracted through us back into the environment shape us even as we seek to shape it.
We talk of ourselves, however unthinkingly, when we talk of law because law is constitutive of the kind of animal that we are. This is due to the role that law plays in how we articulate our relationship to our environment. For Nietzsche, the origins of law-talk reside in its being a precondition of survival for creatures like us. The sources of law-talk, in other words, are not to be found in the world but in the responses of communities to the challenge of negotiating environments that neither wholly yield to human demands nor wholly resist them. Law is not an objective condition of reality that inheres within it, as the naïve realist natural scientist might think, but it is nevertheless a condition of our speaking of reality, no less than air is a condition of our doing so. If we wish to talk of law, on Nietzsche’s account, then, we need to talk in terms of the terrain appropriate to it. We need, in short, to consider law in the context of culture. And since culture is intimately conjoined with history, we must think of law in relation to history – or more specifically, prehistory. Nietzsche’s view on this matter is evident right from the outset of his initiation of the project of ‘historical philosophy’ outlined in the first section of Human, All Too Human, the text which marks the inauguration of his naturalistic turn (Nietzsche 1986a, §§1–2). Historical philosophy asserts the primacy of becoming over being, of temporality over metaphysics. If we want to unearth the sources of our values, of our notions of truth, untruth, right, wrong, fairness, lawfulness and the like, then we must follow the guide of historical philosophy and envision the most primitive state of affairs in which human life was first unconsciously and decisively fashioned. Such an approach takes us to a consideration of the communal, law-like conditions upon which culture is founded.
3 The primitive community as the space of law
Human communities, Nietzsche argues, originated in the need for survival (Nietzsche 1986b, §22). Our forebears, creatures rather like us – that is, weak creatures, beings lacking in great strength, the capacity for speed, long teeth or talons – found security in numbers. Out of the communal satisfaction of this need arose the ‘animal [that] has become human’ (Nietzsche 1986a, §94). Our animality, however, is never conceivable as mere bestiality. Human animality is something that is tempered and fashioned by cultural conditions inexorably associated with communal life.11 We are, from the outset, in our origins beings of custom. The primitive community, according to Nietzsche, is the domain of the ‘morality of custom.’ In the beginning and properly (i.e. naturalistically) understood, Nietzsche argues in Daybreak, the word ‘morality’ denoted ‘nothing other (therefore no more!) than obedience to customs, of whatever kind they may be’ (Nietzsche 1982, §9). Customs are norms that, for the informed eye, point beyond themselves to a social domain moulded and patterned by traditional practice. To follow custom means to do something according to a predetermined ritual and standard. In its origins, tradition is utilitarian. What is endorsed by the observance of tradition is behaviour deemed beneficial to the community. By the same token, tradition condemns those actions which are regarded as harmful. The community, one should note here, forms the context for the most autochthonous expression of human will. Willing is first always the willing of the domain of the norm, of the shared world of community. The community wills and through this generates the power of tradition, a power which resides in its normative-imperative character. It is as a consequence of the compulsion of this imperative condition that the human self emerges. This is why, on Nietzsche’s view, the self must be numbered among the most recent inventions of communal culture, for it emerges only as a later consequence of the power of norms to fashion the body through adherence to practices.12 Tradition, Nietzsche holds, is ‘A higher authority which one obeys, not because it commands what is useful to us, but because it commands.’ To be human, in other words, means in the first instance to be a communal creature whose world is always already mediated by obedience and to discover oneself as an individuated being in the context of such mediation. To be human, in other words, means to be an animal which is both capable of feeling, acknowledging and acting on the peculiar kind of compulsion that is associated with the commanding power of something that is deemed ‘higher’ (i.e. authority).
One can note in the account offered above the apparent presence of the elements that might cause discomfort to the likes of Vining and Habermas. The origin of morality and the authority of law is demythologized at the hands of a propensity to reduce meanings to a compelling force (what Habermas would argue Nietzsche subsequently articulates as ‘will to power’) both originating in and reducible to the need for collective survival. But this is only half the story. It is one thing to argue where the origins of our normative propensities lie, but it is another to claim that the meaning of such propensities amounts to no more than these origins. It is true that for Nietzsche, the member of the primitive community is a creature of custom, a mere passive follower of law-like conventions, un-free and motivated by a specific type of fear. However, the account of the primitive community is not couched in merely restrictive terms. Tradition creates an animal that, through obeying, learns much more than mere obedience:
What distinguishes this feeling in the presence of tradition from the feeling of fear in general? It is fear in the presence of a higher intellect which here commands, of an incomprehensible, indefinite power, of something more than personal – there is superstition in this fear. – Originally all education and care of health, marriage, cure of sickness, agriculture, war, speech and silence, traffic with another and with the gods belonged within the domain of morality: they demanded one observe prescriptions without thinking of oneself as an individual. Originally, therefore, everything was custom, and whoever wanted to elevate himself above it had to become lawgiver and medicine man and a kind of demi-god: that is to say, he had to make customs – a dreadful, mortally dangerous thing! (Nietzsche 1982, §9)
Nietzsche here certainly paints a picture of the primitive human as a creature compelled to fearful obedience by superstitious belief in the threat of divine revenge. But he is also interested in what such obedience generates. The fear that the observer of customs feels is more than fear of the brutal threat of immediate violence. Superstitious fear digs deeper; it takes the form of anxiety about what will happen. Superstition is the cradle in which fear for the future is nurtured. Such fear is mythical. Through it human thought becomes something directed simultaneously to past and future. Myth thus conjures up a terrifying temporality that generates a selfhood that finds itself immersed in a universe dominated by a vast, superior and censorial will capable of engulfing it. The observer of customs keeps to the law of tradition, the authority of which resides in observance of the sacred and unquestionable power that acts as a guarantor of the future. The breaker of customs, in contrast, stands in danger of being held to future account as one whose sins against the authority of divine will exert a power capable of bringing down the entire community. The self thus emerges out of conformity. It is in virtue of this conformity that individuality is from the outset linked to the feeling of guilt. What is individual is what does not conform to the law of tradition, i.e. is associated with the ‘“capricious”, “unusual”, “unforeseen”, “incalculable”.’ Individuality in this way first appears as a negatively conceived possibility of acting in a way that situates one outside the sanctified and secure communal domain of custom and tradition. The individual is an entity endowed with the potential to dwell in a region situated beyond the law.
The community shapes self-understanding by guiding and determining it ‘in the strongest way’ according to precepts dictated ‘by the law, by tradition’ (Nietzsche 1986a, §111). Where the morality of custom dominates, law and tradition dictate subjectivity to the extent that ‘the individual is tied to them almost automatically and moved with the regularity of a pendulum.’ Such determination, however, takes place in a proximal relation to capricious nature. The regularized primitive mind is thus from the beginning locked into an encounter with a nature that teems with incalculable and unpredictable variables. For the primitive person, in nature capriciousness holds sway – it is a place where terrible and unknown spirits are at work exercising a freedom unconscionable within the everyday bounds of community constrained and ordered by the fearful power of tradition. The community conceives of nature ‘outside’ in the same way as it understands the individual law-breaker who lives proximally alongside it: both stand for lawless and demonic disorder and, consequently, must be regarded as a threat. Thus threatened, the community responds in the only way it can: it responds in mythical terms derived from the traditional fabric of normative practice. The realm of language and sign, which emerges as the suasive element in which the community comes to articulate and so endorse its self-understanding (‘We are those who do such and such’ (i.e. adhere to these norms)), is turned out to face the world of nature in the form of holy incantation combined with ritual. Through incantation and ritual the community makes a bid to subjugate the capricious and unruly to the demands of collective interest. In this way, ‘The believer in magic and miracles reflects on how to impose a law on nature’ (Nietzsche 1986a, §111). Here, Nietzsche argues, lies the origin of religion.
Religion is an organized cult devoted to control through wizardry. In wizardry, a personal possession of the unruly person to be controlled (a shred clothing, hair, food left on his or her plate, a name) is got hold of and subjected to magical incantation. The realm of communal authority thereby extends itself in an attempt to exert a grip on the individual’s lawless nature, negating its threat by way of ‘the corporeal [which] provides the handle with which one can grasp the spiritual’ (Nietzsche 1986a, §111). The manner in which the dangerous member of the community susceptible to the power of tradition is influenced and tamed by the magic of words and ritualistic action forms the basis for the attempt to subjugate nature by drawing on the power of the sacred. Thus, as culture develops, words and actions are finally formalized into a narrative in which the natural world, too, is pictured as a realm responsive to incantation and ritual. The seasons, for example, are encouraged to repeat themselves in answer to prayer. In this way, humanity embarks on the path of differentiating itself from nature through an appeal that contains within it the seeds of hubristic resistance. Here is the first step in humanity’s striving to bring external nature under control. Through it the lawful fabric that binds the social world and the un-law-like fluidity of the natural world become intertwined in an act of religious union:
The meaning of the religious cult is to determine and constrain nature for the benefit of mankind, that is to say to impress upon it a regularity and legality which it does not at first possess. . . . In brief, the religious cult rests on the ideas of sorcery as between man and man; and the sorcerer is older than the priest. But it likewise rests on other and nobler ideas; it presupposes relations of sympathy between man and man, the existence of goodwill, gratitude, the hearing of petitions, treaties between enemies, the bestowal of pledges, the claim to protection of property. Even at very low stages of culture man does not stand towards nature as its impotent slave, he is not necessarily its will-less servant. (Nietzsche 1986a, §111)
The sacred thus emerges as a means of pacifying, negotiating and mastering unruly nature by conceiving the natural realm (the realm alien to the community) as being open to magical persuasion. To render nature amenable to such control is to subject it to the demand that it answer to the ritual and incantation that characterize the world of communal tradition and law. The taming of external nature thus occurs in conjunction with the fashioning of inner nature in the realm of communal relations.
As Section 9 of Daybreak also makes clear, the attitude of fostering sympathy between oneself and others, the negotiation and resolution of differences, the drawing up of contracts, claims to rights, etc. likewise emerge in tandem with outer nature being named and encountered, too. In other words, the designations ‘inner’ and ‘outer’ (culture and nature) develop only in virtue of the condition of a normative social world permeated by the force of tradition. In this regard, tradition is formal legality in embryo; and formal, customized legality is rearticulated as the realm of causal lawfulness. The rules which serve to mediate the diversity of interests that spring from the communal realm are projected outwards on to lawless nature. Law – which begins as the sanctification of social convention – is hence a conduit to something miraculous. It bridges the mystery that separates the community from what threatens to overpower it by offering the promise of control, which is the promise of futurity. In this regard, law, for Nietzsche, makes manifest the sense of will whereby humanity unwittingly differentiates itself from brute nature. The will is culture, the lawfulness of tradition and the sacred, the domain in which the regulated self is affirmed. In this way, what starts as the unthinking compulsion of adherence to custom and tradition becomes through law, treaty, pledge and the observance of rights the means whereby human dignity is established and affirmed as the counter-image of a nature that knows no such things.
On Nietzsche’s account, then, the world of nature is first grasped as being amenable to the thought of law through the mystical religious cult. Through the sacred is brought about the fusion of an initially lawless nature with the social realm of normative conformity. The environment of brute nature is in this way initially rendered open to disclosure by the thought of the sacred as something simultaneously magical and elusive yet amenable to revealing itself by answering to instrumental manipulation. Religion thus poses a mythically derived but practical answer to concretely encountered problems. Its metaphysically inclined propensity to control through invocation and spells envisages a nature that answers to the law-like realm of communal meaning from which it emerges. Thought reaches out, however clumsily, to make a grab at what is alien to it, attempting to subordinate the alien to the traditional, normative domain in which thought itself is compelled to dwell. In this way, religious sensibility, which originally conceives of nature as a realm devoid of ‘natural causality,’ nevertheless also contains within it the seeds for the elaboration of a ‘nature’ which adheres to the basic demand of the social imperative understood as objective ‘lawful’ process. Religion, in other words, is proto-science. A secular positivistic understanding of the world, one which thinks only in terms of brute ‘physical laws,’ is only possible in virtue of the legacy of this subsequently suppressed religious element. Nature becomes an object of the thought of law understood as causality and process only because the normatively guided thought of the sacred has already articulated it in an embryonic causal terminology before being subsequently suppressed and discarded as the causal terminology gains greater explanatory power. The naïve scientist who sees laws at work ‘in’ nature ignores the religious-legal genealogy at play in his or her descriptive language. They neglect the thought of law as social form indebted to the sacred and fail to see nature as something that must already be appropriated by thought. Here is the source of the positivism that Vining and Habermas deride in equal measure: the positivist thinks the descriptive language he or she employs exhausts the realm of experience and thereby constitutes its explanation.
4 Normative violence, law, the state and the divided self
With these observations in mind it is possible to turn to a discussion in the Genealogy concerning the origins of the state and the formalization of law that appears to confirm Vining’s and Habermas’s worst fears about Nietzsche. In this discussion (which is in Genealogy II, 17), the events that establish the state in its original form are characterized by Nietzsche in terms of an unrestrained violence. The state arises from conflict between two groups of beings governed by tradition, one establishing rule over the other. The violence which characterizes the initial imposition of the state and the rule of law is the violence of a tyranny specifically aimed at control, in which aggressors colonize a population susceptible to the iron grip of rule: ‘The oldest “state” emerged as a terrible tyranny, as a repressive and ruthless machinery, and continued working until the raw material of people and semi-animals had been finally not just kneaded and made compliant, but shaped’ (Nietzsche 1994, II, §17). These aggressors are unconscious, instinctive actors who ‘imprint forms’ on the social body they seek to dominate. They do so without reflecting on the consequences of their actions, since they have no interest in anything other than the enforcement of will. What matters for Nietzsche, however, are the consequences rather than the aggressive intent, for with the state ‘soon something new arises, a structure of domination that lives, in which parts and functions are differentiated and co-related, in which there is absolutely no room for anything which does not first acquire “meaning” with regard to the whole’ (Nietzsche 1994, II, §17). What matters is that disparate parts are rendered subordinate to a greater, unifying force of will. The violent aggressor, in other words, unconsciously implements the conditions which bring about a new form of cultural life. As Nietzsche notes, the active will to power of these ‘artists of violence and organizers’ (Nietzsche 1994, II, §18) makes up only half of the story to be narrated here. More important is the ‘raw material of humanity’ that such organizing power works upon in order to impose a structure of rule. Such ‘raw material,’ it is worth recalling, is already normatively distinct and thereby differentiated from brute, lawless nature. The tyrannical imposition of will that results in the formal realm of state and law is possible only because that will can work upon something amenable to this imposition. The primitive aggressors who subjugate another primitive population of custom-driven semi-humans can enforce subjection only in virtue of the law-like conditions that have already begun to fashion the human animal into a creature susceptible to being compelled by the force of normative adherence. Violence alone is an insufficient condition of tyranny. For tyranny to be possible there must be threat, that is, the normative articulation ‘if . . . then,’ the promise of violence capable of compelling one party to submit to another’s norms.
The tyrannical promise of violence (the central thread that guides the argumentation of the second essay of the Genealogy, which need not be rehearsed here) seizes on a law-like but primitive humanity that has developed rudimentary self-understanding in virtue of its being fashioned by normative adherence. This is a humanity that, through the religious cult, has already forged self-understanding by articulating its relation to a lawless nature conceived in terms of lawful myth and a world of others articulated in terms of a quasi-legal realm of rights and duties. Primitive humankind, in other words, responds to the promise of violence only because it is already endowed with will and dignity. However autochthonous it might appear, therefore, primitive humankind is already capable of being violated, that is, of having the integrity of its world transgressed. The tyranny that characterizes the rise of the state and the imposition of the rule of law is only possible as tyranny in virtue of the possibility of one group violating the will and dignity of another that is similarly endowed. What is notable about Nietzsche’s discussion of this matter is its focus on the victim of this violation. It is through subjugation, the making of victims, that the state is first brought into existence. This victimizing act is a specifically political violence. In this way, all political violence is revealed as being derived from normative violation. Politics is thereby worked through as the forcible concatenation of cultural forms by way of a violence that compels in virtue of its ability to use the normatively generated resistance it encounters to further its own ends. The origins of the formalization of law likewise represent a violence perpetrated against the realm of communal tradition: ‘Submission to law: – oh, how the consciences of nobler clans rebelled everywhere against having to give up their vendettas and accept the force of law over themselves! For a long time, “law” was a vetitum, a crime, a novelty; introduced with force, as a force to which man submitted, ashamed of himself’ (Nietzsche 1994, III, §9). The state, then, brings about the formalization of law as rules. The understanding that characterizes the normative being of tradition is violated and divided against itself. The name for this self-division is shame.
The tyrant who imposes law in this way does not see violence for what it is, for the imposer’s experience of his or her own violence is the mere pleasure of the exercise of power over another. Seen from the standpoint of the oppressor who brings about the state, laws dictated and pressed into statute correspond to nothing more than the objective facilitation of conditions that satisfy the pleasure to be derived from willing. For the tyrant, the law promulgated by the mechanism of the state represents something that corresponds to objectively existing conditions that enable effective instrumental manipulation. The tyrannical ‘artist of violence’ appears, in this regard, as a kind of thoughtless proto-positivist whose power is achieved at the cost of cleansing the primitive subject of his or her rudimentary selfhood. So as to satisfy the ruler’s requirement that he or she be subjugated, the victim must be treated as mere material susceptible to the brute power of a crudely conceived causal fashioning. Just as the positivist comes to see the world as being amenable to instrumental manipulation facilitated by understanding hidden causal conditions in a manner that represses law’s normative status, so the tyrant organizer of the primitive state regards the primitive human victim as mere material fit only for subordination by an act of will. The blonde beast, like the positivist, never really understands the decisively normative nature of political violence. Neither primitive tyrant nor positivist can be deemed to have grasped the locus of law. What matters in the narrative of the founding of the state that Nietzsche provides in the Genealogy is not the active tyrant but the activity of the victim subjected to tyrannical will. The positivist likewise forgets the victim, immersing him or her in the dry formality of rules. The origin of bad conscience lies, Nietzsche notes, with the same ‘force’ that motivates the tyrant to build states, but in a form turned back on itself in the shape of the victim. Through what Nietzsche famously calls the ‘internalization of man,’ the self emerges (Nietzsche 1994, II, §16). Normatively shaped human instincts imprisoned by state and statutory ordinance turn inwards to create the inner world of subjectivity that is called the ‘soul.’ The bite of bad conscience the victim thereby feels is the sign of the emergence of the soul. Only as a political victim does humankind truly come to experience and suffer from itself. Moreover, it does so by for the first time encountering the mystery of power and authority that was fashioned in the world of tradition both in objectified institutional form and in its own inner turmoil. The human soul emerges, therefore, as a doubly divided entity: a conformer, yet one situated in resistance to the power of state and law rather than being their formal articulation and stamp of approval.
The divided nature of the soul is the dwelling place of both conformity and resistance. As conformity, the soul is unthinking normative adherence – the inheritor of the habits of the primitive observer of custom and tradition. As resistance, the soul is driven to reflect on the shame of the susceptibility to being ruled that springs from its powerful normative urge and to question the power of tradition made use of by state and statute. The soul, for Nietzsche, is thus driven to seek authority over itself (i.e. dignity) as the cure to shame. That is why he conceives of the genuine philosopher as a law-giver.13 The soul, accounted for in these historicist terms is not leached away into history, as Vining would have it. History is, rather, the cradle of the self. History is the space of struggle from which the self emerges in all its splendid potential, replete with the vulnerability that is the hallmark of will and dignity. Likewise, the conception of authority suggested by this account does not amount to a simplistic positivistically inclined decisionism of the kind suggested by Habermas. Insofar as the self is brought about by oppression it is, at the same time, permeated by the kind of spiritual resistance to power that characterizes the search for authority rather than the mere acceding to dominant power. The state seeks to impose a power that claims legitimacy through being formalized in law and statute. The self created in the midst of this normative violence responds to the claim to power by being driven by shame to seek its own legitimacy. In this way, the state validates the search for authority, but one of the effects of this search is the threat of the de-legitimization of the power of the state. For in the state, the power of the sacred (of custom, tradition and law) becomes objectified and so rendered open to the possibility of demythologization. Nietzsche’s naturalistic reading of tradition, myth, law and the sacred does not, it follows, recoil into a simplistic decisionism. The power-takeover which characterizes the Genealogy’s analysis of the emergence of the state ought not, therefore, to be confused with the naturalizing trajectory endorsed within Nietzsche’s critique. The latter does not seek to overturn law or the realm of the self, but to foster a better understanding of both such that the legislative potential of the individuated self might be realized. Law, in this regard, defines the space within which freedom may be articulated. Such freedom, on Nietzsche’s conception, is not realized by the abandonment of law. It is found in the quest for authority that, as Vining rightly notes, characterizes it. This quest for authority must take place within an understanding of the realm delineated by bad conscience as the only kind of freedom possible to us. This is the freedom that approaches the question of law with the seriousness capable of making its existence a matter of personal integrity. Law, understood thus, is not oppression, but the precondition of concrete freedom:
There are some who threw away their last value when they threw away their servitude. Free from what? As if that mattered to Zarathustra! But your eyes should tell me brightly: free for what? Can you give yourself your own evil and your own good and hang your own will over yourself as a law? Can you be your own judge and avenger of your law? Terrible it is to be alone with the judge and avenger of one’s own law. (Nietzsche 1976, I, ‘On the Way of the Creator)14
Terrible it is to be the divided self. The human animal represents a crossing from lawless nature into lawful culture. To be an animal of this kind means to experience oneself as domain of contestation in which the authority of the law is continually at stake, since such authority is intimately one’s own. Nietzsche’s naturalism, which as ‘historical philosophy’ is neither a positivism nor an historicism, seeks to do justice to this authority. In this regard, the authority of the self is, for Nietzsche, the legitimate heir of the sacred ordinance from which it emerges: a being of will and dignity, rather than nature’s passive victim.
Notes
1 John Gardner, a defender of what he terms ‘hard’ legal positivism, provides what must be among the most straightforward of working definitions. According to Gardner, the legal positivist endorses the view that the legal validity of a norm ‘in any legal system’ is a matter wholly dependent upon the sources in virtue of which that norm is posited, ‘not its merits (where its merits, in the relevant sense, include the merits of its sources)’ (Gardner 2001, pp. 199–200). On Gardner’s view, all the legal positivist thus seeks to do is clarify the conditions in virtue of which legal norms have validity. The legal positivist thus addresses the ‘thin lex sense’ concerning what law is, in a manner that does not preclude further (and different) consideration of the extent to which such norms might also be taken to be morally binding (in ‘the thicker ius sense’) (p. 227).
2 On this conception, historicism and positivism are locked in a conflict which, because it is a conflict, tends to mask what they share in common and emphasize their differences.
3 The passage under discussion here is On the Genealogy of Morality, I, §13.
4 See, Vining 1995, pp. 147–9.
5 Mootz argues that this challenge can be addressed insofar as Nietzsche’s thought does not so much initiate the destruction of law as the destruction of a specific mode of ‘legal argumentation’ (Mootz 2007, p. 129). As in another paper on the topic (see below), for Mootz this challenge to law is overcome by the elaboration of a hermeneutics indebted to the writings of Heidegger and Gadamer.
6 Mootz seeks to offer a hermeneutic account as a means of overcoming the problems posed by Stephen D. Smith’s Law’s Quandary (Smith 2007). For reasons of space, I do not propose to discuss the pros and cons of Mootz’s interesting discussion here. The argument proffered here holds that one can develop an account of law based on Nietzsche’s texts that is both less destructive and dangerous than Mootz’s comments suggest and avoids the accusations of positivistic and historicist reductivism levelled against Nietzsche by Vining. In short, like Mootz, I think that a kind of non-reductive naturalistic account of law is possible. Unlike Mootz, I think that this can be developed from Nietzsche without need of hermeneutic assistance (although I have much sympathy with hermeneutics generally).
7 Consider, for example, Habermas’s contention that since for Nietzsche ‘thinking can no longer operate in the elements of truth, or of validity claims in general, contradiction and criticism lose their meaning. To contradict, to negate, now only has the sense of “wanting to be different”’ (Habermas 1994, p. 124).
8 Nietzsche argues that such a view presupposes a concept of nature that differs hardly from the one presupposed by the Stoic philosophy of the ancients (see Nietzsche 1973, §9).
9 Nietzsche in fact envisages a time when the limits of science are not overcome by its abandonment, but by its cross-fertilization with other forms of practice: at such a point, the ‘artistic energies and the practical wisdom of life will join with scientific thinking to form a higher organic system in relation to which scholars, physicians, artists, and law-givers – as we know them at the present – would have to look like paltry relics of ancient times’ (Nietzsche 1975, §113).
10 This notion is developed in Beyond Good and Evil in relation to will to power (see Nietzsche 1973, §36).
11 This includes such things as the orientation of our actions towards negotiating long term goals.
12 See in connection Nietzsche’s discussion of this in Thus Spoke Zarathustra (Nietzsche 1976, Part I, ‘On the Thousand and One Goals’).
13 See, for example, the discussion of the ‘new philosophers’ and the notion of philosophers as ‘commanders and lawgivers’ in Beyond Good and Evil (Nietzsche 1973, §§203, 211).
14 See, Thus Spoke Zarathustra (Nietzsche 1976, I, ‘On the Way of the Creator’).
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