Monday, August 14, 2006

Cycles of Legal Foundations: Law After Deconstruction

This paper starts with the proposition that critical theory appears to destroy particular normative foundations but in actuality has been unable to provide anything other than the space in which substitute foundations can be embraced and substitute communities can arise. In other words, I embark on a journey to understand the reasons for a peculiar recurrence in attempts to overcome the limitations of human normative foundational frameworks. For that purpose I will start with the insights of a 19th century German philosopher and a 14th century North African historian on death and transfiguration, overcoming and recurrence. Those insights then provide a basis for a preliminary aphorisic articulation of the mesh work of understandings within which critical theory, like the normative foundations it attacks, must operate.

The 20th century, the great century of the Rule of Law, was also the century of murder, of endings par excellence. The beginning of the century saw the extermination of the last elements of the ancien regime in Europe, China and the Indian sub-continent. The middle of the century saw the attempted extermination of peoples deemed undesirable – Jews in Europe and the Middle East, Tutsi and other peoples in Africa, Muslims and Slavs in Southern Europe, Ba’hais and other non-Muslims in Persia, and large elements of the Khmer population. The end of the century saw a world gearing up for ethno-cultural conflict on a global scale and race cleansing in sub-Saharan Africa.

Ideas and beliefs were also murdered, at least in the popular conception of the intelligentsia of various stripes. Western intellectual elites, through any number of versions of modern and post-modern theory have presumed themselves at the vanguard of the masses responsible for the death of God and God’s running dog – Law. In particular, a universal belief in the transcendence and eternity of an all powerful God died in the West even as this Western God’s analogues met similar fates in Japan and China, and even as the traditional Gods re-constituted themselves in the dar al-Islam, and the lands of the Hindus and Buddhists. A similar fate was suffered by law, through a century of utterly shameless perversions, all of different sorts, and at the hands of the virtuous as well as of the virtue-less in practically every place on earth. Law, like God, has lost its transcendence. Murdered thus was certainty, legitimacy, progress, a modernist eschatology which “recounts the experiences of a subject affected by a lack, and the prophecies that this experience will finish at the end of time with the remission of evil, the destruction of death, and the return to the Father’s house, that is, to the full signifier.”

But the death of ideas and belief has not been clean. Merely proclaiming the a-historicity of some theory or other does not make it so in fact. And the narcissism of a theory focusing exclusively on a ‘self’ and its ‘other,’ a narcisism that characterizes much theorizing, provides little relief. Perhaps Peter Fitzpatrick summarized the post-modern difficulty best:

The apocalyptic announcements of law’s demise which tumbled out of the period 1940-1980 have given way to more nuanced but still terminal relegations. Instead of the law’s being extinguished in, say, scientistic administration, legality becomes terminal in the sense of having reached an end, but not an annihilation. Some instances:

- law’s dissipation yet persistence in the postmodern or in psychoanalytic positing of a diversity of authority in place of, or along with, the paternal;
– law’s abject emplacement within varieties of revived sovereign or ‘exceptional’ assertion, including biopolitics and war;
– law’s subordination in the cause of integral or self-subsistent systems;
– law’s constituent realignment within globalization, such as its becoming predominantly identified with specific functions – the control and surveillance of the dispossessed and the protection of ‘private’ spheres.
Critical theory’s declaration is still bedeviled by history, progress, and thus, politics. Critical theory, despite its pretensions otherwise, still reflects a longing for a repose, the repose of utopia, of the ability to escape history through the embrace of the perfect, of a leisure that ends history in a sort of Eden. Murder brings repose, an ending. And it is to this end that deconstruction has been bent. In short, it’s anti-modernist stance, used to attack current versions of accepted normative structures – like law, religion, science, and the like – often masks an inherent modernism. STEVEN BEST & DOUGLAS KELLNER, POSTMODERN THEORY 2 (1991).

The shadow of Friedrich Nietzsche looms large over the last century’s killing fields of ideas and belief. Nietzsche opened the way from out of the conundrum enmeshing all who operate within all systems – of morals, economics, politics, race, sex, faith and so forth – a conundrum that appeared to choke thought at every level and among all peoples. Humanity, in search of the rational foundations of their various systems, instead provided “merely a scholarly variation of the common faith in the prevalent morality; a new means of expression for this faith; and thus just another fact within a particular morality. In place of an unthinking acceptance of normative systems as given, Friedrich Nietzsche, Beyond Good and Evil at § 186. such system must be problematized – examined, analyzed, questioned and vivisected. And so the various great actors of the 20th century appeared to examine, analyze, question and vivisect the sovereign normative foundations for systems of race, economics, social organization and philosophy, at every level of social organization.

Yet, so seriously bent on the undoing of the institutionalized hierarchies of human organization that they inherited, theorists in the 20th century sought in Nietzsche those clues and insights through which they might interrogate and undermine the claims to legitimacy and primacy of those organizations – in order to produce a variation of the thing undermined which was this time to last for another eternity. “I call it the moral hypocracy of those commanding. They know no other way to protect themselves against their bad conscience than to pose as executors of more ancient or higher commands (of ancestors, the constitution, of right, the laws, or even of God).” Richard Posner, Past-Dependancy, Pragmatism, and Critique of History in Adjudication and Legal Scholarship, – U. CHI. L. REV. – (2000). In rejecting history in favor of pragmatism for the judiciary, Posner, to some extent, draws inspiration from Nietszche’s On the Uses and Disadvantages of History for Life, in FRIEDERICH NIETZSCHE, UNTIMELY MEDITATIONS (R.J. Hollindale trans., 1963). For a commentary on Posner’s use of Nietzsche, see Ryan Fortson, History, What is it Good For?: A Commentary on a Talk by Richard Posner, 1 STAN. J. LEG. STUD. 11 (2000). Yet the humorlessness of those acolytes, from German National Socialists to European Marxists to those without ostensible affiliation to communities within organized society, blinded them to the central irony, the comedy, of Nietzsche’s critical insight – the connection between overcoming and recurrence, death and transfiguration – to the construction not only of individual but also of communal normative structures. Moreover, the supra-historicism and cyclical nature of what ibn Khaldun identified centuries ago as “group feeling, ” as well as its amorality, conflated with notions of the transcendent rights of groups to arrange their relationships with other groups unrestrained by the will of others produced neither progress nor a history ending overcoming. Instead, they produced the grand theoretical statements of the American Declaration of Independence, the Irish Easter Proclamation of 1916 and the emerging international laws of self-determination, on the one hand, but also provided the basis for the construction of racist, exclusionary, xenophobic states.

And so, perhaps with some horror, these same elites have discovered that both God and Law, resurrected and transformed, having escaped their tomb, leave to theory, once again and always, the task of overcoming another God and another Law, cycling between explosions of the masses and consolidations of those explosions in ever narrower circles of authority, or between vigor and decadence. Everything else is detail – all is contained within the moment. And so the very oh so human comedy of death and transfiguration, extinction and resurrection.

This paper examines the implications of the notions of death and transfiguration, so critical to Nietzsche’s philosophy in the 19th century and ‘Abd-ar-Rahmân ibn Khaldûn’s historiography in the 13th century, on critical theory’s ‘deconstructive’ project. Death and resurrection, and its related notion, that of the imperative of the overcoming of the social or personal self, forms a core part of the modernist world-view only when tied to a purposive history – that is, a history with a beginning and an end to which people and systems are condemned to strive. That condemnation is as much embedded in Christianity as it is in the social, political, ethnic and religious ideologies that have engulfed the world with a vengeance since the 19th century. It is the fatal bacillus which has enervated deconstructive theory as well. Yet Nietzsche understood and ibn Khaldun intuited centuries earlier, both the relationship of death and resurrection/transformation on the one hand, and self-overcoming, the freeing of the self from its own self-constraints, on the other. Recurrence and overcoming, overcoming and recurrence produce patterns that repeat, the details are all contextual. “The new courage – no a priori truths. . . but free submission to a dominant thought which has its time, e.g., time as a property of space, etc.”

People, groups, all conscious organisms simultaneously seek the protection of oblivion, an acceptance of repose in some perfect and eternal state, equilibrium, on the one hand, and also struggle to overcome the desire for oblivion, that is struggle against faith. Such struggle leads to emancipation for those who can successfully struggle. That success is valid for those who struggle, but cannot be gifted to others. Each in turn must struggle – individual, group, organism – against the reality bequeathed to it. And thus the process of self-overcoming and recurrence are linked through death and transformation. “Existence seeks an organizing principle.” Yet organizing principles are personal to the organism that struggles or accepts. Only the struggle remains the same – over and over. Friedrich Nietzsche, The Will to Power at § 1066. Only the eternal can overcome eternally; in all other cases, overcoming recurs eternally. J (1886) at § 200. These open systems of multiple cycles constitute the matrix within which the hermeneutical projects of Gadamer and his followers, can occur, foundations can be established, maintained, problematized, destroyed, and replaced.

Within the matrix of death and transfiguration, within the ahistorical reality of recurrence, in which movement from foundation to foundation is dictated through multiple individual and communal processes of self-overcoming, of attacking the postulates of existence with the tools of a vivisectionist, deconstruction serves as a constant – the instrument of vivisection itself. Deconstruction must deconstruct – vivisecting the vivisectionist reveals the constant thirst, the lust, for murder. The substance of deconstruction is process – the process of murder, of the crucifixion of foundations of substantive assumptions and belief, of permanency of norms and law, an endlessly repetitive task. “Anyone who has once thought through this possibility to the end knows one kind of nausea that other men don’t know – but perhaps also a new task!” Deconstruction is a lust, insatiable, that can offer us nothing other than analysis, the all embracing intention of the murderer. To add something more to the destructive impulse, to seek repose for the murderer, to counsel that the bringer of death kill no more, invites the obliteration of the killer by its own hand, and the false faith of the modernist in progress, history and ultimate repose.

In the 21st century, this “age of disintegration,” the matrix of communal and self overcoming/return reveals itself most clearly. Critical scholarship may say it targets culture, but it can strike only at the current forms of its popular iteration. Yet as long as groups exist, as long as identity matters, it will not succeed in ridding us of subordination and marginalization. It will succeed in reordering them. This is a conclusion pointedly made by Foucault with respect to the establishment of a people's court as a revolutionary method of administering justice by judging the police. For Foucault, and in much of deconstruction theoretics, the form of revolution, if it is to be revolution, "remains to be discovered." I suspect that he is wrong. The bringers of revolution will carry the baggage of the past and reimpose it in new form.

The touchstone of the matrix of recurrence and self awareness, and the utility of critical theory, is grounded in a self and un-self consciousness of difference within and between individuals and communities with finite but reproducible life-spans. Communal and self overcoming and recurrence each stand alone and interact with the other in combination, and in addition they are simultaneously symbiotic in their interactions (each needs the other to complete their respective definition) But here I mean to cast difference in a different light. Let us consider the structure of this current normative post-modernist foundation:

1. The perception of difference is a foundational motivating force in the animation of groups.

2. The significance of difference is constructed, that is, difference constructs value and the value assigned to difference is a deliberate act, whatever system of judgment is used to assign value. Value, in this sense, is not absolute, unchanging, or capable of only one determination. Any difference can be assigned any value.

3. Hierarchy is founded on difference. The significance of difference lies in its consequences both for the ordering of individual perception and the construction of communities of individuals. Hierarchy represents a communal tattoo, a brand, on individuals sharing a particular view of difference and its value.

4. Hierarchy based on difference produces advantage. In the absence of advantage difference can have little significance, and the expression of consequence is best displayed on the individuals embracing a particular system of difference, significance and advantage.
5. Advantage is a foundational motivating force in individuals. The will to power, here naturalized in symbiosis and combination with Nietzsche’s conceptions of the eternal recurrence and the Overman.

6. Individual advantage is contextual.

7. Individual advantage can be satisfied tangibly and intangibly.

8. The nature of advantage and its value is constructed by communities from out of an embrace of the significance of difference-producing hierarchy and, thus developed, is absorbed more or less imperfectly by individuals – whose internal constitutions attempt a replication of the form and manner of the construction of the significance of difference and the production of hierarchy.

9. Difference, hierarchy and individual advantage render its products – communities – highly unstable and multiple.

10. The longevity of any set of perceived significant differences animating group feeling within a community, constituted as borders between groups, is a function of memory, history, tradition. Memory, in this sense, is highly unstable and contingent.

11. Instability permits manipulation – hermeneutics is a function both of human (individual) mortality and the dynamic vectors of advantage within a community – ‘they’ ‘us’ and ‘me’ are under constant reconstruction.

12. Instability is contained within individuals and their communities by exportation – by devices that appear to remove control of difference, significance, hierarchy and the like from out of the individual and community to something outside, with which communication is difficult – religion (God), science (economics, politics), philosophy (marxism), law (the Rule of Law).

13. Exportation reinforces hierarchy by producing smaller sets of individuals or communities with the power to communicate with the norm giver – the priest/judge is thus created.

13. Hierarchy and community are neither linear nor three dimensional, that is, universal nor supra-historical; Multiple groups can occupy the same tangible and intangible space.

14. Individuals occupy different positions simultaneously.

15. Simultaneity produces a blended matrix of advantage – individuals and communities occupy different positions simultaneously within which they must simultaneously navigate – consider for example the multiple positions of the homeless Catholic middle aged white male in Salt Lake City, Utah.

16. Individuals maximize advantage by optimizing aggregate membership in groups; advancing the group cohesion of those communities offering the maximum advantage and problematizing the foundations on which other groups are constituted and the individual members of such groups understand themselves.

17. The bases of group cohesion are destroyed when differences critical for group identity, hierarchy and individual advantage are no longer accepted as significant, that is, when those bases are de-legitimized by an internal or external criticism.

18. Criticism which does not disturb the underlying normative basis of group cohesion merely masks conflict over relative advantage, and thus hierarchy, within a group, rather de-legitimizes the normative basis of group cohesion. Such criticism, the work of much that passes for critical theory in the West, can weaken a group vis-a-vis others and destroy the relative advantage to an individual of membership in that group relative to others, but at its most successful results merely in the substitution of one set of hierarchies for another, each still true to the underlying normative foundation fo the group.

19. Criticism which vivisects the underlying normative basis of group cohesion, that is the faith of a group in its uniqueness and characteristics, can dissolve the bonds that hold a community together, and as replicated in the individual, results in an overcoming of the self.

20. The dissolving of these bonds does not free an individual of community or of himself. Where such dissolution occurs, individuals – über and unter menschen – have reconstituted themselves as communities on the bases of other sets of perceptions of difference. And so community is resurrected, the same and different, overcome yet overcoming, transfigured through death but not dead.

21. The disciplining forces (Foucault) within this foundational matrix of overcoming and recurrence, rests on a variety of devices – systemizations of rules or beliefs that serve to preserve and legitimize the pragmatics of difference and hierarchy, and thus communal cohesion and individual advantage. Natural law, philosophy, history, economics, tradition, theory, religion have all served.

22. For every device, there exist the elements of its own subversion; necessary in the context in which difference, advantage, hierarchy, the community and the individual are imperfectly constituted. The critical impulse also serves individual, and sometimes communal, advantage. Systems of subversion can also be systematized: Natural law, philosophy, history, economics, tradition, theory, religion have all served.

23. The strength of each of these devices is dependant on a number of factors, but is never fixed by those factors, nor by the contexts in which they might be used:

A. The extent to which the device is deemed transcendent, absolute or ‘neutral’ (that is not appearing to confer advantage while conferring advantage) and thus more difficult to manipulate.

B. The self-containment, the completeness, of the system represented by the device, that is, the utility of the device for ‘answering’ all question or covering all topics.

C. The extent to which the device can be used to direct behavior; the extent to which ambiguity is thus eliminated and the individual desire for repose, for the satisfaction of the instinct of the herd, can be satisfied.

D. The utility of the device in affirming the form and value of particular characteristics of difference.

E. The extent to which the device is useful or effective in policing of the borders of difference, that is of the characteristics that separate communities and distinguish between individuals.

F. The effectiveness of the device in defining, providing and protecting individual advantage.

G. The synergistic potential of one device to amplify the effectiveness of others, and conversely, the imperviousness of the device to critique.

24. The nature of these devices is neither fixed nor unidirectional. Every community, every individual, may use any device for particular and contextualized advantage. Every device can be used against itself, that is, each can be used by groups in conflict simultaneously to advance inconsistent advantage (for examples in the wars of religion).

25. As conflict sharpens between or within groups, or within the individual replicating or rebelling against the normative basis of communal organization, ambiguity shrinks, differences sharpen, and the value of advantage (the stakes) increase (Christie Davies). The internal battles over abortion rights in the West, the conflict between the free market and socialist political systems of the U.S. on the one hand, and the former U.S.S.R. and the P.R.C. on the other, the status of females in Zimbabwe since 2000, are all examples of conflicts in which ambiguity retreated, differences sharpened and discipline increased as conflict intensified.

26. The dissolving of communal bonds, even those replicated within the individual does not free either individuals or community of rules of belief. Consequently abandonment of one set of binding devices is followed by the embrace of another set, also subject to the same forces that eventually caused the abandonment of its predecessors.

27. Patterns of individual and communal action, thought and belief are universally shared and finite. Every individual, every community, conforms to a finite number of patterns of behavior, thought and belief (ibn Khaldun), whether or not such patterns are successfully deployed.

28. Patterns, and their inverses, are invoked for and against themselves and the same pattern may describe the actions, thoughts and beliefs of groups and individuals in direct conflict.

29. With enough information about difference and patterns of individual and communal action, it may be possible to anticipate the vectors, if not the amplitudes, of changes. As a subset, it should also be possible to anticipate the value of advantage, and its interaction with community and the individual.

30. The ability to anticipate and the power to intervene are closely related. Anticipation and intervention suggest a system, even one of infinite variability at some level of detail, bound by its own internal logic/illogic. This bound system compels and limits not only humankind, but God as well. That is, that which is or may be characterizable as transcendent is no more than the outward projection of the sum of all possible interactions, of all possible manifestations of overcoming, death and transfiguration. In one sense God, and law, are bound by the objects of their worship or obedience. We effectively obey only ourselves. In another sense, individuals can attempt to play God – can attempt to influence the direction and magnitude of cycles of multi-communal/individual overcoming and reconstitution for particular ends.

31. The consequence for critical theory: critical theory may appear to destroy particular normative foundations but be unable to provide anything other than the space in which substitute foundations can be embraced and substitute communities can arise.


In the West, it is commonplace to lay on Nietzsche’s tomb the laurels of the Hindu Kali the triumphant hero – the destroyer of the institutions of law and religion in the West, the nihilist par excellence. This great critical enterprise of the last century substantially misses the point of Nietzsche’s critical project. Either we delude ourselves into some theory or other centered on the eternity of law, or, in the face of the end of law’s eternity, we cling to a fatuous nihilistic indeterminacy. Law, like God, overcomes itself, and in the overcoming returns.

My idea is that every specific body strives to become master over all space and to extend its force (__its will to power:) and to thrust back all that resists its extension. But it continually encounters similar efforts on the part of other bodies and ends by coming to an arrangement ("union") with those of them that are sufficiently related to it: thus they then conspire together for power. And the process goes on__

The West thus teeters between Good Friday and Easter, between death and transfiguration. So critical theory over the course of the last century or so has set the stage for the greatest joke of the 21st century. We in the Christian West have thought of ourselves as successful in the role of God and law killer. In a great revaluation of values we think, we have infused ourselves with the spirit of the last great community accused of God killing – the very people our elites had taught us to despise for two millennia. Now, we believe we have killed again. This time we have killed the spirit of God in its primary manifestation – law. But God has a sense of humor. Our murder has, by the very hand of the murderer, given rise to God, and to law, again, the same yet different – transformed, invigorated and full of a new faith in itself. The task of critical theory begins anew.

ARISTOTLE, POLITICS (William Ellis, trans., London Everyman’s Lib, J.M. Dutton, 1912).

‘ABD-AR RACHMAN IBN KHALDÛN, THE MUQADDIMAH: AN INTRODUCTION TO HISTORY (Franz Rosenthal, trans., N.J. Dawood, ed., 1967) (1377) (Muqaddimah (Introduction) to Kitâb al-‘Ibar (Book of the History of the World)

Larry Catá Backer, Some Thoughts on The American Declaration of Independence and the Irish Easter Proclamation, 8 TULSA J. COMP. & INT'L L. 87 (2000).



Ryan Fortson, History, What is it Good For?: A Commentary on a Talk by Richard Posner, 1 STAN. J. LEG. STUD. 11 (2000).

HANS-GEORG GADAMER, TRUTH AND METHOD 302, 306 (Joel Weinsheimer & Donald G. Marshall, trans. 2d ed. 1989).

Michel Foucault, On Popular Justice: A Discussion With Maoists, in POWER/KNOWLEDGE: SELECTED INTERVIEWS AND OTHER WRITINGS 1 (Colin Gordon ed. & trans. 1980)

MICHEL FOUCAULT, DISCIPLINE AND PUNISH: THE BIRTH OF THE PRISON (Alan Sheridan, trans., 1977; Vintage Books 1995) (1975).



Jean François Lyotard, A Postmodern Fable, in JEAN FRANÇOIS LYOTARD, POSTMODERN FABLES 83, 96 (Georges van den Abbeele, trans., Univ. Minn. Press, 1997) (1993).

ANTONIO NEGRI, INSURGENCIES: CONSTITUENT POWER AND THE MODERN STATE (Maurizia Boscgli, trans., Univ. Minnesota Press (1999).

FRIEDRICH NIETZSCHE, ECCE HOMO (Walter Kaufmann, trans., Random House,1967)



FRIEDRICH NIETZSCHE, THE WILL TO POWER (trans. W. Kaufmann & R. J. Hollingdale; New York: Random House, 1968) (DER WILLE ZUR MACHT (Op. Post.)).





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