L a w a n d Cr i t ique Vol .VIII no .1 [1997]

THE SILENT VOICE OF LAW:

LEGAL PHILOSOPHY AS LEGAL THINKING

by

ALEXANDER CARNERA I~UNGSTROM*

The one most important thing is to find time within time Andrey Tarkowsky 1

If we, as we are often moved to do, a t t empt to contemplate t ha t which

cannot be thought, it is wr i t t en tha t we shall suffer e i ther t ha t our soul be

severed to r e t u r n from where it came, or t ha t we shall become confused.

To th ink and not suffer is the a t t empt of metaphysics to r ema in wi th in the

world of t rad i t iona l discourse while a t peace wi th the l imi ts of thought .

Such a place, an oasis in the desert, is a place of l i s tening to the i m m a n e n t

voice so as to convey its echo into the world. This echo, th is i m m a n e n t

voice made visible, is the possibil i ty of a poetics of legal speak ing which

would m a i n t a i n the f ini tude of legitimacy. This ghost voice is the visible

of t ragedy and the groundless d imens ion of law. What we seek here is a

space for the divine wi th in the profane, an inf ini ty wi th in f ini tude.

Silence is where we a lways begin and i t is always wi th us. In the

silence of this oasis a quest ion arises: What does it m e a n t ha t law is? Why

is there law r a the r t h a n noth ing? 2 T h i n k i n g seeks its place in our lost

* Faculty of Law, University of Copenhagen, Denmark. An earlier version of this paper was presented at the Critical Legal Conference's 1995 Annual Meeting at the University of Edinburgh. I am grateful to my friend Richard Edwards, lawyer and thinker, who has read several earlier drafts on this project and with whom I have had the pleasure of many inspiring and seducing conversations on Law, Friendship and Finitude. The article is dedicated to him.

1 A. Tarkowsky, Time within Time: The Diaries 1970-1986 (London: Faber and Faber, 1994).

2 According to Heidegger, this is the most fundamental question of metaphysics and therefore of law. See M. Heidegger, Einf i~hrung in die M e t a p h y s i k

(Tfibingen: Max Niemeyer Verlag, 1987, F~infte, durchgesehene Auflage), 1. Recently Baudrillard has stressed that "without appearances the world be nothing but one complete crime; a crime without a perpetrator, without a

72 L a w and Crit ique VoLVIII no.1 [1997]

m e m o r y and our forgot ten being. We find, in th i s g lance t h a t h a s no

reference , someth ing beyond good and evil: the journey itself . The jou rney

begins wi th a quest ion concerning the di rect ion of the phi losophy of law.

In th i s j ou rney wi thou t a des t i ny comes the recogni t ion t h a t i t is no

longer poss ib le to know the law. Law l ies beyond the r a t i o n a l i s a t i o n of

knowledge. To speak of legal ph i losophy as legal th ink ing , i t is neces sa ry

to see t h ink ing as l i s ten ing to the voice of others. The s i len t voice of law is

a s i l en t b r e a t h i n g t ha t has not ye t en t e r ed language . We m u s t l i s t en to

h e a r the way. The s i len t voice of law speaks because i t h a p p e n s a t t he

l imi t of language . This law is the law ofEreignis; a n a m e given by Mar t in

Heidegger : "The event (Ereignis) is the law because i t ga the r s mor ta l s into

the a p p r o p r i a t e n e s s of the i r n a t u r e and t h e r e holds t h e m ' . 3 Das Ereignis

r e n d e r s p r e s e n t the r e l a t ion be tween the h u m a n and t h e divine. The

e v e n t is t he sp inn ing p lay of dance of sky and ea r th , of i m m o r t a l s a n d

m o r t a l s as t hey oppose and p l a y w i th each o ther . The e v e n t is t he

c lea r ing of a space for our ek-s tasy , our love, our f r i endsh ip and our law.

This p l ay of the world, the to t a l i t y of Being, is a g round wi thou t ground.

In w h a t follows, we shal l t ry to see law as the force of the boundless event ,

To cap tu r e th is force is to r e t h i n k legal phi losophy and i ts me taphys i c s as

a p l a y w i t h o u t ru les . H e i d e g g e r w a n t s us to see our ex i s t ence no t

bounded wi th laws bu t as the p lay of worlds . A p lay of ea r th , sky, gods

and mor ta ls .

The beg inn ing of legal phi losophy is not a questio quid juris (a what ) ,

bu t a Quod, that law is. We cannot know the law because i t is not in fused

in a concept . I ts ex is tence is ou t s ide t he t h o u g h t of man . Law is t he

bound le s s g a t h e r i n g of th ings , a logos, an arche of law, a p r e - e m i n e n t

i r reduc ib le s u b s t r a t e of th ings t h a t emerge from i t and r e m a i n ru led by it.

T h i n k i n g is l i s t en ing and as such i t g a the r s w h a t is a l r e a d y la id down.

The i m p o r t a n t th ing in logos is not t h a t h u m a n be ings a r e speak ing , b u t

t h a t some th ing is be ing said. Speech is an ac t iv i ty in which some th ing is

victim, without a motive." For Baudrillard, the real question now is: "Why is there nothing and not just something?" I find this too easy. If there were no appearances the world would not even be a crime, it would be no-thing. See J. Baudrillard, The Complete Crime (Kcbenhavn: Det kgl. danske kunst-akademi, 1994) (my translation).

M Heidegger, Gesamtausgabe Band 12: Unterwegs zur Sprache (Frankfurt am Main: Klostermann, 1959), 248; On the Way to Language, trans. P. Hertz (San Fransisco: Harper, 1971), 128-129. Instead of "appropriation" (Hertz's translation), I prefer "the event". For further comments, see n.30.

The Si lent Voice o f Law: Legal P h i l o s o p h y as Legal T h i n k i n g 73

gathered up as man and world. Gathering is then the originary sense of speech. If legal discourse is a mode of forgetting, 4 this is because the

essence of logos has fallen into oblivion. Outside oblivion we find legal thinking.

Legal thinking returns to the unsaid voice, t raversing into the

sounded word and unfolding out of thinking into Being, a nearness that

motivates and structures the event of language. Such nearness is our

relation to the other as the happening which takes place as the unsayable.

To relate to the concrete, absolute Other, is to relate to the unsayable.

This may be the beginning of the silent voice of law. Poetic thinking for

legal philosophy is the invitation into a place of its own imagining where

gaps, silence and the interruption of speech leaves the other, the legal

subject, unnamed in language.

From ancient thinking we have learned that friendship may lie at the

heart of law. According to Heidegger, friendship is already present in

speaking to the other. Friendship is the gestalt that makes us think. In

what follows we should like to speak about friendship as the invisible

ethics of law, as a voice beyond the concept of law and yet a very deep

expression of the law. A voice that is inherent at the limit of language

within language itself. If so, the return of ethics to law happens at the

limit of language where a new reality sets itself in motion.

The Metaphysics of Law

Modern law's attempt to abandon metaphysics has reduced law to a question of power s and value. By referring only to the centre of power,

one avoids posing the more important question as to the philosophical

presuppositions of law. By speaking of value, we posit the world. Despite

claiming the opposite, all modern law is grounded in metaphysics. It

carries on metaphysics without admitting it. This is the beginning of the

oblivion of modern law. It has forgotten that the image is only an image.

With this oblivion there follows the replacement of Being by beings. With

this replacement, law destroys human experience by reducing the

4 J-F. Lyotard, The Different: Phrases in Dispute, trans. G. Van Den Abbelee (Minnesota: Minnesota University Press, 1988), 138.

5 R. Cover, "Nomos and Narrative" in Narrative, Violence, and the Law. The Essays of R. Cover, ed. M. Minov, M. Ryan, and A. Sarat (Ann Arbor: The University of Michigan Press, 1992).

74 L a w and Cr i t ique Vol .VIII no.1 [1997]

ontological basis of law as Being to a ques t ion of legi t imacy as validity. 6

The quest ion of what law is falls outside the area of legal theory.

Today law is value and idle ta lk of values (Gerede). Since Plato, the

Being of law has been conceived as an idea. This gave the f u n d a m e n t for

jus t i fy ing the epistemological project of ethics and law. The chal lenge

today is to go back to the point where the "good" as a way of being for m a n

is ins t i tu ted . In the his tory of wes tern metaphysics , we could n a m e this

as the Platonic moment . What is it t ha t opens up the experience of wha t

is beyond beings, beyond the metaphysics of economy? The hyperbolic

doubt is a doubt tha t guides the experience of the good, as the origin of the

t r anscenden t a l world, beyond all beings. Modern law marks a t u r n away

from the t r a n s c e n d e n t and the exemplary to the separa t ion of Being and

the good; be tween Being and life. Any theory of value is worldless and

values can only signify a lost a c t u a l i t y - a lack of dwell ing which is the

facticity of th ink ing and ethics.

Moral philosophy does not accept tha t the world is. Moral theories, as

expressed through modern legal philosophy, 7 destroy experience, s Moral

philosophy al ienates , as S tan ley Cavell notes, "the inabi l i ty to accept the

6 I am thinking of analytical legal philosophy in its version of realism, positivism and institutional legal theory. My reading of legal philosophy is an experience of staring into a corpus without body, without thought, without presence. All my books of Kelsen, Austin, Ross, Hart, Dworkin, Holmes, Peczenik and MacCormick will live on only for their analytical clarity and not for their thinking. These works are more or less saying the same because none of them takes seriously the ontological relation between language and reality. The return of thinking to legal philosophy is the audacity to operate on the limit of language and thought. In legal thinking the question of law is a question of experience and Being.

7 Modern legal philosophy has been strongly influenced by moral philosophy. This and English empiricism have had a tremendous impact on thinking law as the normative, as a value. In legal theory, both in the English-speaking world and in Scandinavia, the mind of the legal theorist has been hounded by the jargon and tone of moral philosophy. We only have to think of expressions like "state of affairs", "is and ought", "intentionality', "consciousness", "moral facts", etc.

8 With the loss of wonderment and faith, and with an excess of meaning attributed to our daily events, we can no longer translate the unusual into experience. Experience exists as something enacted outside the individual. In legal thinking we must pay attention to the unusual. For an excellent account of modern life's destruction of experience, see G. Agamben, Infancy & History. Essay on the Destruction of Experience, trans. L. Heron (London and New York: Verso, 1993), 14.

T h e S i l en t V o i c e o f Law: L e g a l P h i l o s o p h y as L e g a l T h i n k i n g 75

world and to accept other people, to acknowledge the world and to

acknowledge other people, without guaranties.'9 Obligation is not a value

we should hold. "There is nothing subjectivistic about obligation. I t is

ra ther something tha t happens to me". lo The denigration of experience in

the empiricism and rat ional ism of legal philosophy is what al ienates law

from human existence. It is experience i tself tha t s i tuates the human.

The classical empiricist unders tanding of what experience is, lacking any

sense of place, is too narrow and u t t e r ly wrong. Legal philosophy,

whether strict analytical, positivistic, realistic, or inst i tut ional , possesses

no exper ience of r ea l i t y and therefore no metaphys ics . I ts an t i -

metaphysical status renders it unreal.

Legal thinking is made more empirical than the empir ic is t when it

questions the is and the thus of law. Any legal philosophy claiming to

think, whether i t be the philosophy of difference and al ter i ty , sys tem

theory, or phenomenology, is forced to reconsider the ontological basis

upon which its claims are made. If the crisis of law is a crisis of form 11

then reflection on law enters a phase where th inking i tself becomes an

issue. The form is no longer a post -Kant ian geometry. If the form of

legal i ty no longer guarantees obedience to the law, we must th ink about

what it means for the form to be. The crisis of the legal form is a crisis of

thinking.

Thinking and Woodpaths

In the famous posthumous Spiegel interview, Heidegger spells out the

tragic fate of thinking: "Thinking has by reason of its own task put i tself

in a difficult si tuation. And along with this difficulty, there is also an

alienation from thinking, an al ienation which is nourished by the position

of power occupied by the sciences, so t ha t th ink ing mus t give up

answer ing questions of a pract ical and world-wide character , the very

answers t ha t are demanded by da i ly necessit ies. ' '12 Ea r l i e r in the

9 See H. Putnam, Renewing Philosophy (Cambridge, Mass.: Harvard University Press, 1992), 178. Putnam refers to Cavell.

10 J.D. Caputo, Against Ethics (Bloomington and Indianapolis: Indiana University Press, 1993), 31.

11 See C. Douzinas & R. Warrington, Justice Miscarried. Ethics, Aesthetics and the Law (New York, London, etc.: Harvester Wheatsheaf, 1994), 1.

12 R. Wolin, ed., The Heidegger Controversy. A Critical Reader (Cambridge, MA: MIT Press, 1993), 115.

76 L a w and Crit ique Vol.VIII no.1 [1997]

in terview, Heidegger claims, in a c la i rvoyant tone, t ha t cybernet ics will

replace philosophy. Today this is the n igh tmare . Legal expert systems,

now a popular course in Law Schools, are supposed to solve social conflict.

Legal s tudents are educated to be social locksmiths.

We are su r rounded by legal theory. The " thinking" of legal theory

moves in the shadow of the essent ia l na tu re of technology. Th ink ing has

left law because law has become an in s t rumen t , a par t of cybernetics. As

with science, law no longer yearns to th ink. 13 Language is locked in the

pr ison of K a n t i a n pract ical reason. W h e n t h i n k i n g b rushes aside the

problem of legitimacy, law is no longer a problem. Wi thou t th ink ing , i t

seems, law will r e m a i n a cer ta in legal fiction and not a fiction of the

world.

How are we to th ink? 14 I shall follow Heidegger's Denkweg and trace

possible directions for legal philosophy. When th ink ing t u r n s i tself into a

problem, Heidegger insis ts on a new conception of philosophy. The call for

t h i n k i n g canno t be answered by proposing a def in i t ion of the concept

thinking, and then expla in ing tha t definit ion, m T h i n k i n g is not abou t

representa t ional ideas.

We c a n n o t and shal l not p resuppose the purpose a n d object of

th inking . Proper t h i n k i n g is a quest ioning, 16 a l is tening. 17 Hea r ing the

voice t h a t speaks in t h i n k i n g becomes the p r e senc ing of presence .

Heidegger associates th ink ing proper with a path. is Th ink ing grants to us

13 M. Heidegger, What is Called Thinking?, trans. G. Gray (New York: Harper & Row, 1968), 8.

14 And there is a hope it seems. For Heidegger, thinking might save us from philosophy degenerating into single disciplines.

15 Supra n.13, at 21.

16 M. Heidegger, "The Question Concerning Technology", in Martin Heidegger: Basic Writings, trans. D.F. Krell (San Francisco: Harper, 1977), 317.

17 Although we normally associate thinking as listening with the later Heidegger, it is already an issue in his early masterpiece. See M. Heidegger, Sein und Zeit (Tfibingen: Max Niemeyer Verlag, 1986 (1926)), w 163; Being and Time, trans. J. Macquarrie & E. Robinson (Oxford: Blackwell, 1992), 206. "Indeed, hearing constitutes the primary and authentic way in which Dasein is open for its ownmost potentiality-for-Being-as in hearing the voice of the friend whom every Dasein carries with it." This is the beginning of legal thinking since we see how Dasein carries a friend with it, since listening to others implies a concern for others.

18 The publication of Holzwege (Frankfurt am Main: V. Klostermann, 1950) marks the turning (die Kehre) of the later Heidegger. Holzwege (Feldweg) means woodpaths or simply path. In German etymology it also signifies the

The S i l en t V o i c e o f Law: Lega l P h i l o s o p h y as L e g a l T h i n k i n g 77

a world without will. Therefore thinking is a gift. Denken ist danken

(thinking is to thank) in typical Heideggerian tone. m This gift is given to

us and the more we abide to proper thinking the more human we are.

The demise of thinking is designated by the processes of verification

in subjective reason. The early Heidegger replaced the subjectivity of the

human subject by Dasein. Dasein is not empirical man and does not

derive from consciousness, but is the very possibility for consciousness. In

his later thinking, Heidegger substituted thinking for Dasein, an even less

subjectivist, humanist, existential meaning. Only "thinking" can "replace"

Being with Ereignis (the event). Thinking, properly speaking, does not

have any content to pursue. In the essay "The Thinker as Poet",

Heidegger writes that the "bad" danger threatening thinking is the

philosophical attempt to establish a correspondence between propositions

and given states of affairs. To think poetically is to be without any

external end. The worst enemy of thinking, however, is thinking itself.

What is evil about thinking is its self-affirmation that it can find within itself all it takes for its own satisfaction, for example, innate ideas. Hence

Heidegger warns us that thinking must think against itself, against the

old conviction that thinking springs from itself, providing its own ideas,

its own contents and its own purpose. "The good and thus wholesome danger is the nighness of the singing poet. "2~

A poet who understands the world sings for no end or purpose. The

issue for thinking is presencing. The ever-rising o fphys i s comes into

presence without aim, for no reason. Heidegger sets ousia apart from

parous ia , beingness from Being, methods of inquiry from paths of

thinking. The separation of path and method is the first step for legal thinking. Philosophy is concerned with paths. Science, on the other hand,

is concerned only with methods. The path of thinking poetically is the

road to nowhere. They are woodpaths where to "think" is to "thank" the

goalless showing-forth of phenomena. This is the identity of thinking and

presencing.

Every presence is an economy of self-regulation. To think is to

correspond to a t ruth "already accomplished" in advance by the self-

19

20

stage of "getting lost". Woodpath is a magical image of thought that sees thinking as something that is on its way. "Path" is an arche-word in language and it turns toward contemplative man.

What is called thinking?, supra n.13, at 141.

M. Heidegger, "The Thinker as Poet", in Poetry, Language, Thought, trans. A. Hofstadter (New York: Harper Books, 1971), 8.

78 L a w a n d Cr i t ique VoI.VIII no.1 [1997]

i n t e r p r e t a t i o n of Being. The o r ig ina ry rule of t h i n k i n g is be ing and t ime;

t he even t as t he o r i g i n a r y t e r m p o r a l i s a t i o n . Th is t e m p o r a l i t y b i n d s

t h i n k i n g to epochal h is tory, technology and the event . I f we u n d e r s t a n d

Being as t ime we can a l r eady recognise the even t - l ike t empora l i t y . To

t h i n k is to discover t ime as event. The event of app rop r i a t i on p resupposes

the work of his tory. The quest ion then is: Is t he re an order for lawfulness

a n d h u m a n dwell ing? This r equ i res a t ime con t inuum as t he r e fe ren t to

al l r a t iona l control and de te rmina t ion . I t is a p p a r e n t t h a t the event as the

Law, requ i res a new unde r s t and ing of t ime, the m o m e n t as an economy of

h i s t o r y . F o r H e i d e g g e r , t h e c e n t r a l e x p e r i e n c e o f B e i n g is

t empora l i sa t ion . As such, any t h i n k i n g a l r e a d y corresponds to a t r u t h of

en t i t i es t h a t has a l r e ady happened.

Legal Thinking

Only so far as man, ek-sisting into the truth of Being, belongs to Being can there come from Being itself the assignment of those directions that must become law and rule for man.

Heidegger 21

Law is not a p roduc t of the empi r ica l man . Law has ne i t he r subject nor

God as i ts d isposi t ion. Law exis ts as a law of be ing t h a t precedes formal

legal va l id i ty . Legal t h ink ing does not speak about an "I" or a "self" a t the

cen t re of ra t iona l i ty . The "Self ' is decen t red and rep laced by the "world"

as a n ex i s t en t i a l ca tegory express ing an a lways poss ible w a y for m a n to

be. Man lives in ek-sistens, since he s t ands out in the world. Man has a

world because he l ives in the s t r e a m of events u s u r p e d by meaning . This

m a n is not the empi r i ca l wil l b u t the shadow of the world. The w e s t e rn

be l i e f in a hypo the t i ca l g roundnorm (Grundnorm) is no longer tenable.22

The modern angs t of r ea l i sm is t h a t i t loses control over jus t i f icat ion.

The even t of law canno t be r e d u c e d to a p r inc ip le . We have no

ref lexive access to the event. In Caputo ' s words: "The being-obl iged does

not depend on the principle . The pr inc ip le is a d is t i l la t ion , a f te r the fact,

21

22

M. Heidegger, "Letter on Humanism", supra n.16, at 238.

Such groundnorms remain the basis for much modern analy t ica l jurisprudence. See H. Kelsen, Reine Rechtslehre 2 Aufl. (Vienna: Deuticke, Franz Verlag, 1960, 2nd ed.). See also Kelsen's disciple, A. Ross, On Law and Justice (London & Berkeley: University of California Press, 1959), who is one of the most problematic figures in legal philosophy, but also one of the hardest to avoid.

The Si lent Voice of Law: Legal P h i l o s o p h y as Legal T h i n k i n g 79

of the be ing obliged. We do not judge the s i n g u l a r in v i r t ue of the

pr inc ip le , bu t we draf t the p r inc ip le a f te r the fact by e x c a v a t i n g

s ingular i ty and erecting a relat ively hollow schema - - or principle. We do

not real ly apply principles to ind iv idua l cases. We apply ind iv idua l s to

principles", z~

In legal philosophy, the focus of method has become the pa thway for

exper ience as knowledge. When we engage experience, t he re is no

i ndependen t method to effect our experience of law, there is only the way.

The a u t h o r i t y t h a t is in method reduces legal phi losophy to va lue

matching, and already presupposes its object. Th ink ing moves to displace

the i ssue of values . T h i n k i n g and ethics are the same because the

c o m m i t m e n t to t h i n k i n g is a dwel l ing of h i s tor ica l people. As a

consequence, legal th ink ing can only show life as it is lived, as a revelat ion

of get t ing in contact with our life conditions. To show is to let the n a t u r a l

g round (order) of th ings cons t i tu te the a u t h e n t i c g round of law. To

paraphrase a famous f ragment of Anaximander : Everyth ing tha t is, is also

the order of Being. Where Being thinks, the law also thinks.

In the f ragments of Anax imander , des t iny is presented as the order

and chaos of things. The des t iny of th ings is law's b ind ing to non-law.

Dike, the t i tanic Goddess, is the one who enforces the dest ined order. Man

lives in the morta l i ty of destiny. The law, as the order of the world, can

never be ident ical with convent ional norms and rules. To speak law as

value or as a normat ive system negates des t iny as the source of law.

Dike art iculates the way of th ings and humans , their way and destiny.

I t is this common way, which ins ta l ls a possible way for us in the furrows

of language. We call it nomos. 24 T h e m i s , Dike 's sister, is ear th , the most

23

24

Caputo, supra n.10, at 37.

In early Greek philosophy, the law and existence (the reality of man) are a unity. Thinking appears as concepts which are both legal and ontological. Man never lived without an understanding of law in "pure being". In a certain way, the origin of philosophy emerges together with the development of legal institutions, the codifying of laws, and the development (formation) of a conception of justice from something other than customary law. When Anaximander in his fragment speaks about "the being of the things that gives the law in contrast with un-law", this cannot be understood as being either only a legal statement, or an ontological statement. The abstract and general character of the Being of beings will give a philosophical interpretation of Dike that will weaken the more everyday legal meaning. On the other hand, abstract meaning cannot be deduced from a pre-legal horizon as chronological. Ontology appears in a legal open-laid room. The interesting relation between law and ontology is stressed in F.M. Cornford, From Religion to Philosophy. A

80 L a w and Crit ique Vol.VIII no.1 [1997]

primordial and primit ive of all. She is the more abs t rac t and yet the more

innocent . "Themis is not religion but she is the s tuff out of which religion

is made". 25 From Themis comes obligare, the social consciousness. Man is

not the source because all obligation emana tes from someth ing over and

beyond man. In Har r i son ' s words, "The th ing g rea te r t h a n man , the

power not h imse l f t ha t makes for r ighteousness , is, in the main , not the

mystery of the universe to which as yet he is not awake, bu t the pressure

of tha t u n k n o w n ever incumben t force, herd inst inct , the social conscience.

The myster ious d o m i n a n t figure is not Physis, bu t Themis."26 The agile

shadow of Themis emerges with Physis. Themis is ea r th and Geist and,

together with Dike, she symbolises legal t h i n k i n g as a path, our way to

follow together. Legal th inking, in terms of Heidegger, rests with Themis.

Themis grants physis and time. For Themis fai th is no th ing other t h a n

wha t happens; the necessity of d ispensat ion and the obligation of laws as

expressed under the name of de s t i nyY

Law as Ereignis

The event is the law because it gathers mortals into the appropriateness of their nature and there holds them. ~

Ereignis ( the even t ) al lows us to u n d e r s t a n d Be ing as t ime , as

temporality, m The event exists beyond rep resen ta t ion and explanat ion .

25

25

27

28

29

Study in the Origins of Western Speculations (Harper: New York, 1967), 7, 21 and 54, and G. Vlastos, "Equality and Justice in the early Greek Cosmologies", Classical Philology 42 (1947), 156-178.

J.E. Harrison, Themis: A Study of the Social Origin of Greek Religion (London: Merlin Press, 1963), 485.

Ibid., at 490.

See P. Minkkinen, "Right Things: On the Question of Being and Law", Law & Critique VII/1 (Spring 1996), 81, where Themis is stressed as "an assertion of Dasein, that is 'in the right".

M. Heidegger, On the Way to Language, supra n.4, at 128-129.

The word Ereignis is the most important invention of the later Heidegger. The word is untranslatable. In English there seems to be no better translation than the "event". See Hofstadter's translation in M. Heidegger, Poetry, Language, Thought (Harper Books: New York, 1971). Ereignis is a German pun. Heidegger sketches out the rift of the pun that inscribes a certain movement of the sign, almost a move of difference: Zeichen-Zeigen-Eigen- Ereignis. Zeichen-zeigen is the sign versus showing. See M. Heidegger, On the Way to Language, supra n.3, at 121. In a later work published from

The S i l en t V o i c e o f Law: L e g a l P h i l o s o p h y as Lega l T h i n k i n g 81

Its essence is the happen ing wi thout a subject. Law as Ereignis is the

appearance of an action wi thout a principle. Action tu rns into presencing

as an irreducible difference. The act is the u l t imate irreducible presence.

Whereas wes tern metaphysics has posited presence as be ing real ised in

the format ion of principles , Ereignis s u m m o n s the tragic cha rac te r of

existence. Law is t ragic because we are overwhelmed by nomos, the

unsayab le momen t of the worlding of the world. It is tragic because we

cannot just ify law by our reason.

Heidegger calls our a t t en t ion to the br inging-for th tha t is Language.

To do this, he speaks of Dichtung, the poetic character of presence. In his

essay "The Thing" Heidegger draws out a s t r ing of images from metaphors

and puns in which ear th and sky, gods and mor ta ls come together in a

mirror-play and round-dance, un i t i ng them as the fourfold (das Geviert).

In this mirror-play the world presences by worlding. ~0 This mir ror-p lay of

the world is the round-dance of Ereignis in which eve ry th ing comes

together, belongs together, as its own (Eigen) in its u n c a n n y dwelling. 31

When language speaks, the world worlds as a world. In this round-dance

the one never sees itself. As all d isappears into the dance ek-s tasis is

reached. We d isappear into the way-making movements of the event , as

consciousness d i sappears into play, as the dance r d i sappears in to the

dance. The presencing of the world, the event, is the happen ing wi thout a

subject. Law as Ereignis is a border experience. It is the experience of the

l imit of the unspeakable . 32 Ereignis t ranspor ts us out of the o rd inary and

out of ourselves. Dasein can first undergo the u n c a n n y experience t ha t

the re / s something ra ther t h a n nothing. This "rather t h a n nothing" is the

ini t ia l condition t ha t renders the law possible. Giorgio Agamben calls the

experience of the l imit as "the experience of being-within an outside'. He

adds: "This ek-stasis is the gift t ha t s ingu la r i ty ga thers from the empty

30

31

32

Gesamtausgabe Band 65: Bertrdge zur Philosophie (Veto Ereignis), (1936-38), Heidegger developed his poetic philosophy from Ereignis as the concept of truth. In this work Heidegger claims that philosophy has to start from a new beginning which takes off from pre-Socratic thinking. This is no surprise. In a sense, all Heidegger's philosophy is a "longing" for a new beginning, as Rtidiger Safranski has expressed it.

M. Heidegger, "The Thing", supr,~ n.30, at 179.

Ibid., at 180.

J-L. Nancy sees Ereignis as the limit of language: The Inoperative Community, trans. P. Conner et al. (Minneapolis and Oxford: University of Minnesota Press, 1991). See the section on "ethics as poetic thinking ~' below.

82 L a w a n d Cri t ique Vol.VIII no.1 [1997]

hands of humani ty . "~ This is the gift of divine love. We receive it when

we come to know ourselves outside of ourselves, as we might when we

exper ience the death of the other. The even t of Ereignis stresses the

s ingu la r i ty of the facticity of experience.

The s ingu la r occurrence gran ts time. To t h i nk is to receive this gift.

To t h ink the fundamen ta l of let t ing-be-of-presence (Anwesenlassen) m u s t

be unders tood from the fundamen ta l Es gibt Sein (it gives Being) and Es

g ib t Zeit , where t ime is this Es in Es gibt Se in . The law of Ereignis is an

a t t empt to t h ink this grant ing, this gift, t ha t is received by m a n in Es gibt

(it gives). 3~ The gift of law is a gift of t ime and Being in i ts or ig inal

t empora l i sa t ion . The epochal n a t u r e of D a s e i n me a ns t h a t Es g ib t is

thought of as destiny, tha t sends Being.

Only the work of ar t allows to give tha t which ini t ia tes time. The gift,

the work, makes t ime possible. Is the gift? The answer is no. The gift is a

condit ion for presence, it is never given in its presence. It is only as a gift

u n d e r the condit ion t ha t i t / s not. The condit ions of the gift is equ iva len t

to i ts non-condi t ion. Likewise the work of a r t in Heidegger 's t h i n k i n g

canno t be unders tood as represen t ing or producing anyth ing; bu t in the

work, the t r u th of the th ing comes forth. The gift is not a product bu t the

condi t ion for any product. To give the gift is prior to any economical

t r ansac t i on since the giving of the gift is the possibili ty of time. The gift

i t s e l f c a n n o t be p r e s e n t in t ime, i t w i t h d r a w s from t ime a nd it is

intel l igible only as a rift in temporali ty. The gift is this moment of the rift

in time, '~ the g ran t ing of a un ique event. The g ran t ing of the gift is the

33

34

35

G. Agamben, The Coming Community, trans. M. Hardt (Minneapolis: University of Minnesota Press, 1993), 68-69.

M. Heidegger, "Letter on Humanism", supra n.16, at 214. See also Heidegger, On the Way to Language, supra n.3, in the essay "The nature of language", at 88.

In his book, Given Time I. Counterfeit Money, trans. P. Kamuf (Chicago : University of Chicago Press, 1992) Jacques Derrida refers to Baudelaire's tale La Fausse Monnaie ( Counterfeit Money). Here the narration of an insignificant event gives access to the condition for any gift, the creation of the event in another person's life. The narrator and an acquaintance pass a beggar on a bridge and the friend gives the beggar a big alm, a two-franc-piece. However, it turns out that the friend only gave the beggar a counterfeit coin, and so it appears that the friend has moved beyond any economy, and any law, to an economic paradise where he succeeds in giving without having to pay for it. Furthermore, he has succeeded in creating an event in the beggar's life, since because of the counterfeit money-piece, he can either have the opportunity of exchanging the piece for several real coins or he can get arrested as a

T h e S i lent Vo ice o f Law: L e g a l P h i l o s o p h y as Lega l T h i n k i n g 83

absolute singular , t ha t cannot be repea ted and therefore never en te r s the

c i rcular economy. The an-archic unfold ing of law is the occur rence of

s ingular i ty as time. It is to exist wi thout existence.

But wha t is the source of the s ingular momen t of law, of the gift? I t is

the event as our only reality. "The occurrence is the even t ... and no th ing

beyond. "3e In so happening, the law happens as th is law: the open ing of

this world, the gift of this fr iendship, the hand ing over of th is legacy, the

dest inat ion of this way of saying which we call so poorly our language . To

this law, the law calls man to belong in obedience, and thus allows h im to

su r render to his own possibility.

In h i s to ry s o m e t h i n g is s t i l l abou t to a p p e a r to us. A r i f t o f

t empora l i ty is coming to be. This th rus t , this new event , only a p p e a r s

th rough the changing s ta tus of language. This is why we have to ask how

language appears.

The Say ing o f Law

To see law as Ereignis is to experience language as event. 37

If the nature of language is its occurrence, we live in the happening of this e v e n t . 3s

The uni ty of mul t ip l ic i ty lies in the mou th of language . L a n g u a g e

speaks as a calling. To h e a r this call is to undergo an exper ience w i t h

language. When we speak we are a lways spoken. 39 When we t h i n k we

36

37

38

39

counterfeiter. This giving is never present in any economic or legal rationality. It is the giving of time.

M. Heidegger, Unterwegs zur Sprache, supra a.3, at 247 (my translation).

On the description of Language as event, see particularly two essays: "The nature of language" and "The way to language", in On the Way to Language, supra n.3. See also M. Heidegger, Identitcit undDifferenz (Pft~Ilingen: Neske, 1990), 24-27.

M. Heidegger, Identitttt und Differenz, ibid., at 26 (my translation).

In "What is Called Thinking?" Heidegger writes: "If we may talk here of playing games at all, it is not we who play with words; rather, the essence of language plays with us, not only in this case, not only now, but long since and always. For language plays with our speech - - it likes to let our speech drift away into the more obvious meaning of words. It is as though human beings had to make an effort to live properly with language. It is as though such a dwelling were especially prone to succumb to the danger of commonness ... This floundering commonness is part of the high and dangerous game and

84 L a w a n d Cri t ique Vol.VIII no.1 [1997]

are a l r e a d y be ing thought . 4~ I t is in this , as Mer l eau -Pon ty te l ls us, t h a t

"mean ing is forced on us". 41 The word l ives ins ide the object and the word

is cons t i t u t i ng our world because i t dwel ls in the object. This dwel l ing

r evea l s t he i m m e d i a t e un i ty be tween knowledge and being, the presence

of exis tence. We do not, as the science of semiot ics would have us believe,

f ind ourse lves s taggered , pa ra lysed , or t h r i l l ed by the m a t e r i a l i t y or t he

in f in i t e a m b i g u i t y of the l inguis t i c med ium. The wondrous t h ing abou t

l a n g u a g e is t h a t i t p romotes i ts own oblivion, and th is is t rue in r e a d ing

and w r i t i n g as i t is in hea r i ng or speak ing . "My eyes follow the l ines on

the pape r , and from the m o m e n t I a m caugh t up in t he i r mean ing , I lose

s igh t of them". 42 The t h i n k i n g of ontology does not focus on the s ign or

signifier; i n s t e ad signs a re seen i m m e d i a t e l y as meaning . I t is only when

t h e r e is a b r e a k d o w n in our sha red m e a n i n g s t h a t we focus on the sign.

In t h i s b r e a k d o w n , h u m a n be ings become subjec ts . Only the l ack of

d i s t ance crea tes a legal subject.

We do not recognise ourse lves in l anguage , because t h a t is w h a t i t

m e a n s to be long to l anguage . We a re our body and the body is t he

p a r a d i g m of all form. To t ake l a n g u a g e ser ious ly is to see i ts pa radox:

w h a t cannot be sa id can only be shown, bu t wi thou t l anguage noth ing can

be shown. L a n g u a g e b r ings us eve ry th ing r ea l b u t t h i s "br inging" is a

h e a r i n g of the s i lent hu r r i cane in the mids t of language . We h e a r the p lay

of the world, the roar in the forest, the r a in ing of the ra in , a r emote b r e a t h

in m y own chest , a d i s t a n t t hough t in m y own head. The sound ing of

Ereignis is the law as the coming- into- the-nearness-of-dis tance. 43

Since l anguage is never our own b u t a lways comes to us as events we

inhab i t , as an express ion of a b a c k g r o u n d we speak in, legal d iscourse

comes as a "saying". Legal d iscourse is a microcosm of the poss ib i l i ty of

l a n g u a g e and rea l i ty . I t is the even t " tha t speaks" and the even t only

gamble in which, by the essence of language, we are the stakes", supra n.16, at 365.

40 Perception cannot in itself constitute experience. Language penetrates all, even the senses, as stressed by the Danish philosopher, Ole Fogh Kirkeby, Selvnodighedens filosofi [in English The Philosophy of Selfcessity] (Aarhus: Modtryk, 1996).

41 M. Merleau-Ponty, Phenomenology of Perception, trans. C. Smith (London: Routledge and Kegan Paul, 1962), Introduction, xx/.

42 Ibid., at 400.

43 M. Heidegger, On the Way to Language. supra n.3, at 123.

T h e S i l ent Vo ice o f Law: Lega l P h i l o s o p h y as L e g a l T h i n k i n g 85

exists as such because language makes it visible to us in t ha t speaking. 44

In the end, language can only show us the real in this saying. "Saying is

the mode in which Ereignis speaks ' . 45 What t hen is the saying of law?

Wha t is it to say? We all "know" tha t it is m a n who speaks. W h e n he

speaks, it is a l ready possible t ha t he is to be understood. I t is as if he

r emains in an already const i tu ted house of language. In speech, there is

a l i s t en ing to what l anguage "has to say". Does th is m e a n t h a t i t is

l anguage tha t speaks? To answer this question, we m u s t consider t h a t it

is not tha t h u m a n beings speak, bu t r a the r tha t something is sa id .~

To say something and to speak is not the same. I t is easy to speak

wi thout saying anything. I t is also possible to say someth ing while be ing

silent. The etymology of to say is to show, to let someth ing appear , show

itself, or let be seen. The event of l anguage is showing. 47 We dwell in

l anguage in t ha t we l i s ten to it. Hea r ing and keeping s i len t is pa r t of

44 Here I am inspired by Ole Fogh Kirkeby, supra n.41. For a similar treatment of language, see G. Agamben, Language and Death : The place of negativity, trans. K.E. Pinkus with M, Hardt (Minneapolis and Oxford: University of Minnesota Press, 1991), 197: "We can only think, in language, because language is and yet is not our voice." The suspension of the voice in language constitutes the problem in philosophy and the problem for legal thinking.

45 M. Heidegger, Unterwegs zur Sprache, supra n.3, at 266; On the Way to Language, supra n.3, at 135. See also Heidegger, "Letter on Humanism", supra n.16, at 241: "The fittingness of saying of Being, as of the destiny of truth, is the first law of thinking." And finally the letter ends with separating philosophy from thinking: "The thinking that is to come is no longer philosophy, because it thinks more original than m e t a p h y s i c s - a name identical to metaphysics .... Thinking gathers language into simple saying. In this way language is the language of Being, as clouds are the clouds of the sky. With its saying, thinking lays inconspicuous in the furrows in language. They are still more inconspicuous than the furrows that the farmer, slow of step, draws through the field", supra n.16, at 242.

46 P. Nonet. "In Praise of Callicles", Iowa Law Review (1989), 807-813, muses about the nature of dialogue and rhetoric and their fundamental importance for law. At 812-13 Nonet says: "True speech does not convey ideas, but lets a matter of concern reveal itself in its truth. Accordingly, true listening consists not in seeking to grasp what the speaker has in mind, but in attending to the matter of which the spoken word speaks. True dialogue is not found in communication, pure or impure, mediated or unmediated. Its essence rather lies in shared openness to being, in 'a thinking-together through the self- manifestation of the thing of concern'."

47 Unterwegs zur Sprache , supra n.3 at 253. On the Way to Language, supra n.3, at 122.

86 L a w and Crit ique VoI.VIII no.1 [1997]

discourse . To cu l t iva te the l i s t en ing of d i scourse gives j u r i s p r u d e n c e a

l imi t for w h a t can only be shown, as

Our way is a symbol of t h i n k i n g and of law. The say ing of law calls

m a n to his f u n d a m e n t a l poss ibi l i t ies . The say ing of law is the c l ea r ing

l ight . Law is invis ib le and unsayab le . Law can only be shown. In lega l

p h i l o s o p h y we concern ou r se lves w i th t he s e t t l i n g of t he n o r m a t i v e

con ten t in the au tho r i t a t i ve express ion of logos (the word, the law). In

l ega l t h i n k i n g the saying of law i n s t i t u t e s law as the l imi t of a poss ib le

r e a l i t y and not as a scientif ic object. The say ing of law is the open ing to

t h a t ex is tence which is the condi t ion for any legal content . Lega l ru les

and acts a re a man i f e s t a t i on of say ing w h a t can only be shown. In t he

end, l a n g u a g e only shows us t he rea l by th i s s ay ing and w h a t is sa id is

rea l i ty . To speak is to sha re (Mit-teilen), and in th is sha r i ng a sense of

c o m m u n i t y a r i s e s w h i c h is h i d d e n in t h e p r e s e n c e of spe e c h .

U n d e r s t a n d i n g is rooted in Mitsein. Man is, f rom the beginning, s i t u a t e d

wi th o thers - - he is a pr imordia l fea ture of language , though t and feeling.

The s p e a k i n g of law is never t he produc t of an empi r i ca l wil l l ay ing

open social facts . L a n g u a g e does no t fix a r ea l i t y . I n s t e a d p r e s e n c e

speaks facticity. Any saying t h a t speaks says w h a t has a l r eady been said.

Law, as a world, ins t a l l s the mi r ro r -dance of jus t ice and in jus t ice . Here

we see in jus t ice not as a negat ion of a posit ive, bu t r a t h e r jus t ice se t t l ed in

an absence of m e a n i n g (or world) . " Jus t i ce is i t s e l f in i t s mode of

w i t h d r a w a l or in i ts ab sen t presence", as He idegge r would say. r The

say ing of law opens up for a call of law, a call not from m a n bu t from the

l imi t of rea l i ty , the l imi t to inf in i te possibi l i t ies . This call ha ppe ns in the

work of law.

The Work of Law

Law, as Ereignis, shows us w h a t is a t s t a k e in t he work of law.

Ereignis and the d i spensa t i on of law, shows us t h a t ( legal) n o r m a t i v i t y

always lies before us as a possible way to be. Heidegger ' s t r e a t m e n t of the

w o r k of a r t g ives us a m e t a p h o r i c a l b a s i s to u n d e r s t a n d l a w ' s

48 Supra n.34, at 54.5, "In my way of speaking we must presuppose the immediate being-there of a non-linguistic element which language cannot say but only show."

49 F. Dallmayr, "Heidegger On Ethics and Justice", in Tralzsitions in Continental Philosophy. ed. A.B. Dallery et al. (Albany: State University of New York Press, 1994), 203.

The S i l en t Vo ice o f Law: Lega l P h i l o s o p h y as Lega l T h i n k i n g 87

unfa thomable ins t i tu t ing of its discourse. The character of the work of a r t

with its und isgu ised m o m e n t in its g iven s t ruc tu re and its h id ing face

with regard to its mean ing , reappears in the opposition be tween law as

ins t i tu t ion and as "silent voice".

The work of a r t is a magica l r ea lm, a vehicle for T r u t h , wh ich

t r an smi t s the sacred as memory, i f we live in the fall of l anguage , the

world of predicates, how can we ever prepare for the call of law? This is

the call of conscience t ha t cannot be heard in the noise of everyday idle

talk. A sanc tua ry mus t be created wi th in which the call of conscience can

be heard. This is shown in the un i ty of the work of art, in the wr i t ings of

both Heidegger and Wal te r Ben jamin , as the un i t y of the r i te a nd the

sacred precinct. This clearing may be found in the work of a work of art.

In the work of ar t something is brought together with the th ing tha t is

made. Since language is an event the t r u t h of Being m u s t happen in the

work of art . In legal t h i n k i n g art , history, world, and t r u t h mee t in a

unity:

Whenever art h a p p e n s - that is, whenever there is a b e g i n n i n g - a thrust enters history, history either begins or starts over again. History means here not a sequence in time of events of whatever sort, however important. History is the transporting of a people into its appointed task as entrance into that people's endowment, s~

The even t of law is a un ique his tor ical moment . The m o m e n t of t ime

breaks free as a rift of temporal i ty . ~l The powerful i n t e r rup t ions in the

work of ar t is the condition for new m e a n i n g to arise. To say the law is to

show how it appears in language as a work of art. The work of a r t is the

origin of phi losophy and the "origin i t se l f because in n a m i n g Being i t

draws Being out of silence into the opening of language from where origin

arise. "~2 Our struggle with t radi t ion and normat iv i ty is a s truggle to hea r

50 M. Heidegger, "Der Ursprung des Kunstwerkes", in Holzwege (Frankfurt am Main: Klostermann, 1963, Vierte Auflage), 64.

51 In his essay, "Critique of Violence", Walter Benjamin sees justice as a unique historical event. Justice becomes a tragic moment because it maintains our attunement and finitude in the singularity of the event. For Benjamin it is the unfathomable event that grants the possibility of new law. The legal hermeneutic of Benjamin is tragic and poetic because language forms the limit of the legitimacy of discourse and understanding. See W. Benjamin, "Critique of Violence", in Reflections, trans. E. Jephcott (New York: Schocken Books, 1986).

52 M. Heidegger: Erliiuterungen zu H6lderlin's Dichtung (Frankfurt am Main: Vittorio Klostermann, 1981), 41 (my translation).

88 L a w and Cri t ique Vol.VIII no.1 [1997]

the world as it is handed over to us. The th ings which are handed over in

and by this world are both present and absent , coming and going: "By the

opening up of a world, all th ings gain their l inger ing and has tening , their

remoteness and nearness , their scope and limits. "53

Legal t h i n k i n g lets t r u t h happen because i t is not an experience of

some th ing bu t an experience of experience. We recognise the real of law

as we recognise the rea l of w h a t happens as art . I n legal t h i n k i n g

someth ing appears tha t was not, or tha t is not, a par t of our everyday life,

n a m e l y the i n t ense ar t icula t ion of our re la t ion to the external world. In

art , the t r u th of a being has set i tself to work so powerfully tha t i t opens a

world for man . 54 It is in the s t a n d i n g of the work t h a t law's opening

comes to be. The posi t ing and the placing of law is not an idea or a

cognitive act, bu t a remarkable radiance. In the l ight ing splendour of the

work glows a world:

To e-rect means to open the right in the sense of a guiding measure, a form in which what belongs to the nature of Being gives guidance, w

The erect ing in law is its opening of world. The d igni ty of this e-rection

(er-reichen) is the source of the rule of law. To point the way for the

des t iny of m a n is the work tha t guides. Only because the law is and mus t

be erected can i t also rule, t h a t is, direct and correct in the sense of

po in t ing and r ight ing, the pa th of man. As this guid ing of m a n on the

p a t h of his des t iny , the law is in i ts work, das Gesetz , the founding,

St i f tung, of right, das Recht.

In Heidegger 's example, the gods are be ing obeyed in the s t and ing of

the Greek temple. The gods approach m a n and rad ia te their presence in

the temple. The erection of the work obeys the law, in the coming forth of

the l ight ing ofphys is . ~ God offers himself in concealed presence.

The appearance of a world for people is the i r law, it is the law. In the

work of art, Heidegger says, it is the thing t ha t appears as an occurrence,

a happen ing , and this means t ha t i t lets a world come forth. 57 This world

was a l r eady there from the b e g i n n i n g b u t i t was w i t h d r a w n from the

53 Supra n.51, at 34.

54 In Van Gogh's picture of peasant shoes we see a world in the shoes and yet the work maintains the earth, "From the dark opening of the worn insides of the shoes the toilsome tread of the worker stares forth, etc .... In the shoes vibrates the silent call of the earth.." Ibid., at 33-34.

55 Unterwegs zur Sprache , supra n.3, at 33.

56 Supra n.51 at37. "The Origin of the Work of Art", supra n.31, at42.

57 Supra n.31, at 177.

T h e S i l ent V o i c e o f Law: L e g a l P h i l o s o p h y as L e g a l T h i n k i n g 89

c l e a r i n g l ight . In t he r a d i a n c e of l aw a wor ld is h a p p e n i n g . The

h a p p e n i n g appea r s in the chang ing s t a tu s of l a n g u a g e t h a t te l l s us t h a t

our world as such is abou t to change. 5s The c h a r a c t e r and "logic" of

l a n g u a g e requ i res us to see l a n g u a g e as an event . The c o n s t i t u t i o n of

l anguage is a resu l t of prehis tory . This is o u r history.

E t h i c s as P o e t i c - T h i n k i n g

I t is sa id tha t i t was Heidegger ' s g rea t e s t sorrow not to have become a

poet. Poe t ry is love. P rope r t h i n k i n g m a y well be the s ay ing of love. I f

th is is so, then we sha l l come to see t h a t p roper or commi t t ed t h i n k i n g is

also w h a t i t would mean to be ethical . In his l a t e r though ts , H e i d e g g e r

saw in l a n g u a g e an i n h e r e n t l y e t h i c a l d ime ns ion . F o r H e i d e g g e r ,

t h ink ing , to be mindfu l of i t s own n e a r n e s s to the p h e n o m e n a l , m u s t

a l r e ady be an ethical s tance. Does th is m a r k the necessa ry r e spec t for the

Being of the Other? W h a t is the re la t ionsh ip be tween Being and ethics?

Heidegger invi tes us to the ne ighbourhood of poe t ry and t h i n k i n g in a

way t h a t is mindful to the o the rnes s of o ther beings. The h a p p e n i n g of

the wor ld is e s sen t i a l l y l inguis t ic : the even t is the s ay ing of ou r wor ld .

The essence of man is to be the speake r so as to voice the say ing of Being.

Fo r Heidegger , e th ics and the r e spec t for the o the r is found in t h e

unsa id voice which is a l r e a d y a voice of o thers . By t h i n k i n g l a n g u a g e

aga in s t itself, we m a n a g e to approach the o ther not by t h i n k i n g the o t h e r

as difference (Levinas) bu t r a t h e r as n e a r n e s s t ha t is a l e t t ing the o the r be

in a m a n n e r t h a t p rese rves i ts a l te r i ty . 59 In th is poet ic t h i n k i n g we f ind

ethics and law not in propos i t ions and descr ip t ions of n o r m a t i v e s y s t e m s

bu t in the voice of our fr iend. This o ther t h ink ing is the ne ighbourhood of

t h o u g h t def ined as "dwel l ing in nea rness" . ~~ Poet ic t h i n k i n g t h i n k s

a g a i n s t i t se l f by m a i n t a i n i n g the inf lect ion of l anguage . This "work ing

aga ins t " is the de l iver ing of si lence, the b r ea th of e m p t y spaces in poet ic

th inking . He idegger cal ls i t a showing as say ing or as the soundless word.

Z ia rek te l ls us t h a t the h e r m e n e u t i c s of n e a r n e s s is "to b r ing l a n g u a g e

58 Heidegger says that in setting up a world the work causes the word to speak: supra n.51, at 35; "The Origin of the Work of Art", supra n.31, at 46.

59 A valuable contribution to this line of thinking is found in K. Ziarek, Iuf lected Language. Toward a hermeneutic o f nearness. Heidegger, Levinas, Stevens, Celan (Albany: State University of New York Press, 1994). My account is indebted to this work.

60 "On the Way to Language", supra n.3, at 257.

90 L a w a n d Cr i t ique Vol .VIII no ,1 [1997]

close to wha t is other, as near as words will allow it, so the otherness can

show its fore ignness and s t rangeness" . 61 It " renders l a n g u a g e more

a t ten t ive to its own proximity, otherness and its figuration". ~ Nearness is

a " language phenomenon and a powerful re-f igurat ion of otherness. "ea

T h i n k i n g is to let be and t h u s "respect" o therness . It is to t h i n k

o therness as nearness ra ther t h a n difference. We can t h i nk the other by

coming nea r in a way tha t lets the other be and preserves her al ter i ty.

The nea rness of le t t ing be is wha t Ziarek calls the "ethicity of language".

This ethici ty of l anguage is the condit ion for facing the other. I t is the

ext reme nearness tha t allows difference to unfold, e~

Nearness is the event. Nearness is, Heidegger says, the movement of

the face to face encounter of the world's fourfold. 65 Nearness as movement

res ts in saying. In Heidegger's fourfold mortals , gods, ea r th and sky are

n e a r each other and always on the way to the i r "own". "In an analogous

way, h u m a n s and Being are in the process of cons tan t pass ing into each

other; they are cont inuously coming mutua l ly into the i r own, and it is this

coming, th i s app roach ing one 's iden t i ty , which i n t e r e s t s Heidegger

most. "66 Ident i fy ing oneself is the nea r ing of the other. Nearness is the

play of coming-into-distance of Being. It is this wi thdrawal of Being in the

event , t h a t ident i f ies t h i n k i n g as the t h i n k i n g of w i thd rawa l of veiled

alterity. 67

Poetic t h ink ing in t imates presence - - the wi thdrawal of Being - - by

leaving a rift, a space, wi thin language. This in t e r rup t ion of the unbroken

c o n t i n u i t y of l anguage is the condi t ion of poet ry in Celan, S tevens ,

HSlderl in and the wri t ings of Beckett. When the unsa id t raverses into the

sound ing word, t h i n k i n g unfolds into Being, a nea rnes s t ha t mot iva tes

and s t ruc tures the language-event . The b rea th of the in t e r rup t ion is the

b reak- th rough to the ethical. David Farre l l Krell speaks of the r h y t h m of

61 Supra n.60, at 10.

62 Ibid., at 5.

63 Ibid., at 60.

64 This essay aims to show that respect for others comes from a poetic thinking that listens to the soundless saying. There is a "chiasmic otherness that influences and inflects language: the enigmatic character of giving in Ereignis and the entraced ethicity of language, its exposition to the other." Supra n.60, at 102.

65 "On the Way to Language", supra n.3, at 108.

66 Supra n.60, at 89.

67 Ibid., at 92.

The Si lent Voice o f Law: Legal P h i l o s o p h y as Legal T h i n k i n g 91

l anguage as a n i m a t i n g our t empora l world. "Rhythm, ( the Ion ian form) ...

is w h a t enjoins the ge t t ing u n d e r w a y (Be-wi igung) of dance a n d song,

t hus l e t t ing these r e s t in themselves . R h y t h m finds repose". 68 The wave

of l a n g u a g e allows the movemen t in speech to flow back to i ts source, t he

voice of f r i endsh ip is a lways pro tec ted . The poe t ry of Ce lan does no t

a t t e m p t to r ep re sen t th is re la t ion to my f r iend or the s t r a n g e r "but r a t h e r

h a p p e n s or t a k e s p lace as th is i n t e r r u p t e d re la t ion , an a d d r e s s to t he

other". ~ I f t h ink ing is l i s t en ing to the say ing of language , poetic t h i n k i n g

gives r ise to th is hea r ing others, m y friend, the immed ia t e s t r anger . Since

the even t (Ereignis) is the l imi t of l anguage , the call of law is t h e l i m i t -

exper ience of l anguage , the o the r u t t e r a n c e of language . Si lence i m p e l s

our speech into a d i f fe ren t form of u t t e r ance , a t a f u r t h e r r emove f rom

spoken l anguage . However , th is s i lence refers to an u n s p o k e n level of

language , the openness and nea rness of the other. The e th ica l d i m e n s i o n

l ies in t h e s h a d o w y a l t e r i t y of l a n g u a g e . Lega l t h i n k i n g is to l e t

s i ngu la r i t y be hea rd in a sober c rys ta l l ine voice.

The law is invis ib le and unsayab l e a n d m u s t r emain , s i lent . A n d y e t

i t speaks . The speak ing of law is prec ise ly p resen t when i t r e m a i n s s i lent .

Si lence speaks , i t calls to be heard . Only si lence can b r ing forth obedience

to law. To obey the law is to l i s ten to the call of law. This call we can only

h e a r i f i t le ts i t se l f be heard , The ques t ion about how the u n s a y a b l e l aw

can be h e a r d goes to the ve ry h e a r t of e th ics and law. The idle t a l k of

e thics a n d lega l ph i losophy re fuses to h e a r the call. In his only note on

Heidegger , Wi t tgens te in hea rd this s i len t call:

All we want to say can a priori only be nonsense. Nevertheless we run against the limits of language .... This running against the limits of language is ethics .7o

Any s p e a k i n g t h a t t r i es to s ay the u n s a y a b l e degrades i t s e l f to id le t a lk .

For He idegger the call of si lence is h e a r d l ike the r ing ing of a bel l (Geldut

der St i l le) . 71 The cal l of l aw is t he d iv ine m a n i f e s t a t i o n in m a n of

m a n k i n d itself. 72 The call from "the Other" is the l imi t of rea l i ty . W h e n

68 D.F. Krell, Lunar Voices: Of Tragedy, Poetry, Fiction, and Thought (Chicago and London: University of Chicago Press, 1995), 60.

69 Supra n.60, at 179.

70 Wittgenstein und der Wiener Kreis. Werkausgabe Band 3. Gespr~iche, ausgezeichnet von Fr iedr ich Waismann (Suhrkamp: Taschenbuch Wissenschaft, Erste Auflage, 1984), 68-69.

71 "On the Way to Language", supra n.3, at 27, 242.

72 Ari Hirvonen has named this call (Ruf), the call of agape, the Greek word for

92 L a w and Crit ique Vol.VIII no.1 [1997]

l aw comes face to face wi th the other , the pe r son as refugee, i t h i t s a l imi t

because our speak ing no longer accepts t ha t the wor ld is. How can we

give and sha re love if we are dr iven by a l a n g u a g e t h a t is a l r e a dy dead, a

l a n g u a g e t h a t d e m a n d s reason to the ve ry end? Law only af f i rms the

l imi t s of l a n g u a g e when i t embraces dea th and the Other . This mee t ing

of e th ics a t the l imi t of the world m e a n s t h a t good will changes only the

l i m i t and not the facts of the world. Ju s t i ce and law are an i m m a n e n t

bo rde r exper ience. Legal t h ink ing i l l umina t e s the i m m a n e n t space of law,

i t o r g a n i s e s a s i lence, an a n o n y m o u s face. The i m m a n e n c e of l ega l

t h i n k i n g m a k e s vis ible a p re - theore t i ca l concern close to law 73 and gives

back the boundless reservoi r of legal leg i t imacy. This t ragic spell of law is

g iven i ts s t r eng th in poetic th inking.

Poe t ic t h i n k i n g r eaches t he n e a r n e s s in i t s a t t e n t i v e n e s s to t he

u n s a y a b l e sound in l anguage . Wa l l ace S t e v e n s ( the l a w y e r f rom New

Haven) refers to o therness as "a poem t h a t neve r reaches words ' . 74 The

n e a r n e s s of the o ther be ing in the work of Rober t Musi l is posed as a

ques t ion of rea l i ty , which is about language and its possibili ty. Real i ty is

p laced in the space of na r r a t i ve t h a t l anguage can create. Musi l calls th is

t h e " u n w r i t t e n poem of p o t e n t i a l man" , t h e q u i n t e s s e n c e of h i s

poss ib i l i t i e s and of his exis tence, a poem which in th is cr is is "confronts

m a n as recorded fact, as rea l i ty , as character" . 7~ The call of our f r iend is

h e a r d as an unwr i t t en poem.

L a w as Friendship

Beh ind He idegger ' s e th ics l ies t he s ign i f i cance t h a t l a n g u a g e a n d

t h i n k i n g have for f r iendship and l i s t en ing to o thers . In his Erli~uterungen

z u HS lder l i n s Dich tung , Heidegge r unfo lds a l i s t e n i n g t h i n k i n g as a

love and the presupposition for our being together in community and a possible justice. See A. Hirvonen, "Civitas Peregrina: Augustine and the possibility of non-violent community", International Journal for the Semiotics of Law VIII/24 (1995), 263.

73 G. Deleuze and F. Guattari, What is philosophy? trans. G. Burchell and H. Tomlinson (London, New York: Verso, 1994), 41. The plane of immanence is a desert populated by legal concepts. The plane of immanence is the image of thought for law, ibid. at 37.

74 Supra n.60, at 104.

75 R. Musil, The Man without Qualities, trans. S. Wilkins (New York: Knopf, 1995), ch.62, at 270.

T h e S i l en t V o i c e o f Law: L e g a l P h i l o s o p h y as Lega l T h i n k i n g 93

"conversat ion wi th friends". 7~ The f igure in which t ru th can be t hough t by

t h i n k i n g is f r iendship . The t r u t h of be ing is an impe r sona l h a p p e n i n g

t ha t only occurs for others. 77 Th ink ing is f r iendship because we come n e a r

the t r u t h of Being in f r i endsh ip . The say ing of the even t is f r i endsh ip .

Law as Ere ign is is f r iendship. I f f r i endsh ip is the essence of law, i t is a lso

a des t ruc t ion of the concept of law. I t is a move from legal ph i l o sophy to

legal thinking.

Nea rnes s demands the a t t en t i venes s t ha t beings g r a n t to one a n o t h e r

so t h a t t hey can r e m a i n themselves . To recognise a f r iend or a s t r a n g e r is

pa r t of self- identif icat ion. Law as f r i endsh ip is the w i thd ra w a l of Be ing in

the event . We w a n t the bes t for a f r iend because a f r iend is a n o t h e r self.

This is w h a t Ar is to t le has a l r e a d y told us in his t r ea t i s e on f r i endsh ip . 7s

F r i endsh ip is the sha r ing of words, thoughts and feelings. F r i e n d s h i p is a

way of l iving toge ther t h a t belongs to man. I t is this necess i ty a t t a c h e d to

h is tory , l anguage and the other , t h a t makes communi ty , pol i t ics a n d law

possible. True f r i endsh ip res t s in i tself , is good in itself. Only by l e t t i n g

the f r iend be can I t r e a t h im as an o the r person. This l e t t i ng be is t he

h e a r t of th ink ing because l i s t en ing is infused with the b r e a t h of m y fr iend,

the furrow of l anguage , which leaves the f r iend and the o the r u n n a m e d

and does not subjec t t h e m to the violence of ca tegor isa t ion . T h i n k i n g is

ca r ing for the f r iend as he is, l e t t ing h im be in his o therness .

F r i endsh ip cons t i tu tes obl igat ions; in f r iendship we l i s ten . I t s t a n d s

in opposi t ion to a r r o g a n t n o r m a l - r a t i o n a l i t y t ha t domina te s i n s t r u m e n t a l

r eason . F r i e n d s h i p gives access to a s i l en t voice in conven t iona l l ega l

speaking. Under s t and ing , l ike obl igat ion and fr iendship, never consis ts in

the ac tua l i ty of an acqui red knowledge. We do not produce u n d e r s t a n d i n g

by the const ruct ion of rules . U n d e r s t a n d i n g a lways l ies "before man" , as

the opening of a poss ib le w a y for h im to be. The openness to t he wor ld

s u r r o u n d s m a n as t h a t in which and u n d e r which he "a lways a l r e a d y "

s t a n d s and u n d e r - s t a n d s , a n d wh ich a lways p recedes h i m in e v e r y

d i rec t ion he tu rns . In a s h a r e d world, u n d e r s t a n d i n g is a good t h i n g in

76 M. Heidegger, Erldiuterung zu HSlderlins Dichtung. Gesamtausgabe, vol.4 (Frankfurt am Main: Vittorio Klostermann, 1981), Hymn: Andenken, 156-194.

77 Ziarek says "the question of being or of event (Ereignis) would have to be approached from the point of view of listening and 'friendship' with others rather than through the con junc t ion - the same (das Selbe) - - of being and thinking", supra n.60, at 202-203.

78 Aristotle, Nichomachean Ethics, Book IX, Ch,8 in A New Aristotle Reader, ed. J.L. Ackrill (Princeton, New Jersey: Princeton University Press, 1987), 455.

94 L a w and Crit ique VoI.VIII no.1 [1997]

itself. Each one of us wishes the good for his friend as for himself. This withdrawal and self-identification is already latent in the language of

belonging. Law reveals itself in friendship because the saying of law

maintains the mortality of Being. The silent voice of law grants us another level in language, a level instituted by the language games of

friendship. It is here that utopia can live as an anticipated experience.

The Oblivion of Law

Law cannot speak. And yet it speaks. The word has drained the law

of any law. The fall is man's altered relation to language. The word itself,

which "is", in truth, no being, degenerates into thing-words, mental images, and concepts. Torn from the t ruth of its saying, it is made

available for repetition, ungrounded in the experience of seeing. The taw

is made into a system of rules obsessed with thing-rights. We drown in

the rush of discourse, a discourse that parades as "justification". The self-

legislating subject has become the God of philosophy and the object of his

own making. The universal ruler is an ignorant believer of the

overcoming of man's finitude and mortali ty. The calculation of instrumental thought has become the measure of thought and wisdom.

Man is left with the word and he lives in the oblivion of law. He lives in a

lost presence of law without a distance. Man can no longer experience

language and the truth of the event. Presence has become a distant place

beyond the reach of man. To experience the nearing of the oblivion of law,

we must see the sanctity of written laws in the experience of the absence

of law.

The rift of history, the interruption in space and meaning, is the true

possibility of new meaning and law. In the work of art we can hear the

silent voice, in a saying where presence comes to be. To see the reality of

law is to experience presence as distance. The legal and the political

suffer from an amnesiac loss of meaning precisely because, as Walter

Benjamin once put it, presence has been replaced by representation. Our institutions crumble, devoid of all presence. Only in the experience of this

distance can the oblivious law fulfil its presence. Only in the nearing of the oblivion can we return to thinking. If language always already carries

the voice of ethics with it, the task for legal thinking is to think language

against itself, to find and listen to the unconcealed tracks and furrows permanent ly in place in language. The re turn of thinking to legal

philosophy is to capture and maintain a hermeneutic of nearness, a

The Si lent Voice o f Law: Legal P h i l o s o p h y as Legal T h i n k i n g 95

presence of metaphys ics . The p lay of difference leads to despa i r . Lega l

ph i lo sophy ' s so-ca l led r e t u r n to e th ics m u s t have i t s r e a l b a s i s in a

me taphys i c s of presence. Eth ics and the call of law is l ike a sp i ra l : t h e

sp i ra l is the ma t r i x for the origin t ha t is a t work (and there fore h a p p e n s )

in i ts own place.