Jean-Luc Nancy notes three ways that fictions have been associated with law: 1) jurisprudential exercises that require imagining the extent of the applicability of the law, 2) the mysterious ground of the constitution, and 3) in Roman law, the extension of the law to cases it did not cover. (Nancy 156) Beyond this, Nancy demonstrates that jurisdiction itself—the extent of the power to make a legal decision or judgment—is ultimately a fictional construct. This he calls ‘jurisfiction’.
What are the steps involved in the movement from jurisdiction to jurisfiction? Jurisdiction is literally jus dicere, the declaration of right as law. Nancy notes that dicere (related to the Greek root deik-, show) is constitutively juridical since it contains within it the ideas of showing, pointing and/or determining that are necessary components of legal judgement. (Ibid, 154) Given that jus is already inferred in dicere while right, in order to be law, must be articulated, announced or declared, jurisdiction takes on a pleonastic quality, with jus and dicere simply emphasising what is inherent to each other.
Right is articulated by a subject that is, according to Nancy, the merest outline of a juridical figure or persona that endows itself with a certain capacity, power, desire or will. The word “persona” is etymologically linked to the word “mask” and this conveniently symbolizes the essence of the subject in question when we imagine the mask projecting and amplifying (per-sonat) the force of its own voice. The mask and its voice are “artificial” and “theatrical” which means that the subject declaring right can only do so by establishing itself “on a nothingness of being and nature.” (Ibid 155) If the declarative nature of right is to present itself, it can therefore only do so by way of artifice and theatre, in other words, by way of fiction.
To clarify the relation of right to fiction, Nancy examines the parallel relation of the judge (iu-dex: one who says right) to the case. The case, from casus, literally means the fall, “the fall in or through chance, through contingency, the fall according to opportunity (an opportunity that constitutes the judge as much as the criminal); the fall, then, as accident”. (Ibid 157) In a double movement, the judge in every instance articulates right in and through the contingency of the case; and by the very act of articulating right, the judge also affirms the fiction of the case. The case always lapses (lapsus) or falls back on itself. This is why for Nancy:
Juris-diction is or makes up juris-fiction … [t]he persona of the judge and his edictum are forged from the same fictitious gesture: right is said here of the case for which there can be no prior right, and which is the case of right. (Ibid 158)
What, then, are the wider implications of jurisfiction? Against a relatively crude positivism that might consider all law as emanating from a determinate, fixed and ‘legitimate’ source—for example, legislature or case law—the notion of jurisfiction can be deployed together with an array of other critical legal theories to demonstrate the contingent and accidental nature of law creation. This, in turn, would impact on the basic question of legal certainty, for if law and right are seen as having an accidental and arbitrary quality, then this could also be seen as undermining the authority of positive law and, which amounts to the same thing, restrictive conceptions of the rule of law. (Leung 2012)
Another implication involves the question that was Nancy’s principal concern in developing the notion of jurisfiction in the first place. Namely, “[w]hat happens when philosophy becomes juridical?” (Nancy 152) In other words, what happens when philosophy is “legitimated juridically” and adopts a “juridical discourse and practice”? (Ibid) In posing such questions, Nancy understands the juridicalisation of philosophy as occurring after Roman/Latin interventions and as having reached its apotheosis in Kant’s tribunal of reason.
At stake then is not only the ground of law, but also the ground of philosophy, metaphysics and the possibility of critique. Reason takes on the role of praetor or judge, saying the right of the right to say. Reason reasons about the case of reason, and in this self-judgment, the case of reason falls under reason’s jurisdiction, a jurisdiction that is in essence a jurisfiction. Or in Nancy’s words:
… since philosophy thinks itself—says itself—in terms of right, it inevitably thinks in a way that is structured around (or affected by) lapsus judicii, by the slipping and falling that are an intrinsic part of the lack of substance within which jurisdiction takes place. (Ibid 167)
When philosophy becomes juridical, the right to say is haunted by this lapsus and the fictionality of the saying. The result, Nancy concludes, is “the sometimes open, always latent revolt over the right to say—the ultimate demand of the right to say the right of what is by rights without right”. (Ibid 169)
—Nancy, Jean-Luc. 2003. A Finite Thinking, ed. Simon Sparks. Stanford: University Press.
—Leung, Gilbert. 2012. “Illegal Fictions” in Ben Hutchens (ed), Jean-Luc Nancy: Justice, Legality and World. London: Continuum 2012. 82–95 | http://www.academia.edu/522478/Illegal_Fictions