Following on from my Impressions of the Critical Legal Conference 2012, in which I proposed a return to thinking in terms of definitions of law (emphasis on the plural), I here offer a version of my forthcoming entry on ‘Law’ for The Nancy Dictionary (Edinburgh University Press 2013). Readers will note that I provide an explanation of two ways that Jean-Luc Nancy uses law: one is classically juridical, the other is ontological. In fact there is at least one further way he understands and uses the term that I don’t go into for want of space; and that is, following Kant, in a priori relation to freedom. For legal theorists like Herbert Hart, such ‘stipulative’, ‘pragmatic’, or ‘constructive’ approaches to conceiving law avoid rather than resolve the central problem of properly defining it. Hart provided his own solution, a sociological description of the conditions in which law operates, which has been considered by some to suffer its own problems. Notwithstanding, I find it more interesting to go beyond Hart’s self-imposed remit by considering how multiple conceptions of law in different contexts can be used to advance the theoretical humanities in general. The following will hopefully exemplify this.
The concept of law is tortured by an internal complexity that renders it particularly difficult to define (Hart 1983, 89–98). When considering how Jean-Luc Nancy thinks about law, we have the added problem of a semantic slippage that is the bane of translators between common and civil law jurisdictions. The different use of legal signifiers between languages is therefore significant.
The common law originates from a customary and case-based system that is pragmatically evolutionary. Civil law hails from a Roman-law inspired system of codes that are written down in order to be read. In Roman law this is known as lex, which comes from legere, meaning to read. Yet if lex is read, from an early Roman point of view, lex is also what does the reading. What does lex read? Lex reads or rather picks out, chooses or selects—still from the verb legere (Varro 232–233)—ius, where ius is the general and unwritten law before its enactment in the Twelve Tables forming the basis of Roman law. From lex, we have the Italian legge, the Spanish ley, and French loi, which we translate as ‘law’. From ius, we have Italian dirrito, Spanish derecho and French droit, which we translate as ‘right’.
At the risk of oversimplification, we could say that right, ius, droit, diritto, derecho etc. connote the idea of some pre-positive legality while law, lex, loi, legge, ley etc. encompass institutionally established norms and enactments that are recognised as legal. However, given the pragmatic nature of the common law, the term ‘law’ is used in a more pervasive and general way than ‘right’. Hence we see ‘law’ used as a translation for both loi and droit when the latter is referring to the subject matter of law in general, e.g. droit international tends to be translated as international law rather than international right; also droit commun is obviously rendered as common law and not common right.
Nancy often uses the term loi or law in this typically civil law sense of positive and institutionally recognised legislation. He also follows the abovementioned linguistic style of using the term droit to refer to what common law lawyers understand as ‘law’ rather than right. For example, ‘En droit, la loi doit être le code universel …’ (Nancy 1983, 39) has been cleverly translated as ‘De jure, the law ought to be the universal code …’ (Nancy 2003, 155), where de jure is merely legalese for the general question of law as opposed to fact.
Nancy also uses the term ‘law’ outside the classical juridical context, particularly in relation to ontology. Take for example the following passage:
The fact of the existent’s freedom consists in that, as soon as the existent exists, the very fact of this existence is indistinguishable from its transcendence, which means from the finite being’s non-presence to itself or from its exposure on its limit—this infinite limit on which it must receive itself as a law of existing, that is, of willing its existence or resolving for it, a law it gives to itself and which it is not. In giving itself law, it gives itself over to the will to obey the law, but since it is not this law—yet, if we like, it ex-ists in it—it is to the same extent what can disobey, as well as obey, the law. (We could also say: “existence is law,” but if law, in general, essentially traces a limit, the law of existence does not impose a limit on existence, it traces existence as the limit that it is and on which it resolves. Thus existence as “essence” withdraws into the law, but the law itself withdraws into the fact of existing. It is no longer a law that could be respected or transgressed: in a sense, it is impossible to transgress; in another sense, it is nothing other than the inscription of the transgressive/transcendent possibility of existence. Existence can only transgress itself.) (Nancy 1993, 30)
Here, all instances of the word ‘law’ are translations of loi. The characteristics of law in this ontological context involve an obligation, order or imperative voice that is 1) obeyed and/or disobeyed, 2) respected and/or transgressed, 3) the tracing or providing of limits.
These characteristics could also be said to apply to juridical law and so there is a certain consistency across registers. The major difference is that juridical law imposes itself upon a subject, while existential law is existence imposing itself upon itself. The law taken in this bold ontological register is not a question of moral justification and is therefore not a question of the right (droit) of existence. Instead, it is the law of existence as facticity and aporetic self-transgressiveness.
It is tempting to see the idea of the law of existence as a bridge towards a new thinking of natural law, where nature for the Ancient Greeks (phusis) may be seen as a precursor to all post-Heideggerian thinking of being. However, given Nancy’s particular commitment to ontology, he would be reluctant to see it this way. Human existence is, for Nancy, without nature since nature and, by extension, natural law represent an auto-finalised order (Nancy 2012, 66). Existence and what it means to be human, by contrast, would in no sense be a finalised order. Existence as law is rather the opening to a world instead of nature.
—Hart, Herbert. 1983. Essays in Jurisprudence and Philosophy. Abingdon: Oxford University Press.
—Nancy, Jean-Luc. 2012. ‘Finitude and Infinite Democracy’ in Giorgio Agamben, Alain Badiou, Daniel Bensaid, Wendy Brown, Jean-Luc Nancy, Jacques Rancière, Democracy in what State? New York: Columbia University Press.
—Nancy, Jean-Luc. 2003. A Finite Thinking, ed. Simon Sparks. Stanford: University Press.
—Nancy, Jean-Luc. 1983. L’impératif catégorique. Paris: Flammarion.
—Nancy, Jean-Luc. 1993. The Experience of Freedom, trans. Bridget McDonald. Stanford: Stanford University Press.
—Varro, On the Latin Language, trans. Roland Kent; London: Loeb Classical Library 1938, vol. I