WHAT DO WE MEAN WHEN WE POSE THE QUESTION, “WHAT IS LAW?”
To be sure, the canonical tradition of Western legal-philosophical thought proffers a wide variety of answers. In brief summary, law is “transcendental nonsense,” it is “what courts do in fact;”
it is the concretization of universal principles that exist “out there;” it is a structure of inter-related and arbitrary relations between signifier and signified put into use by practitioners of the law in the form of rhetoric; it is violence, and the possibility upon which the individual accepts his inferior status to the awesome power of the sovereign; it is a constituent part of the hierarchical organization and structure of society by which those on top remain on top; etc. In short, in posing the question, “what is law?” we take for granted that we know what it is, in fact, that the question asks.
The question itself presupposes a response – law is something; something that we can grasp, wrap our head around, whose features may be empirically described, observed, and/or known definitively.
My goal in the following series of posts is not to set about composing a definitive answer to the question, “what is law?”
Rather, my aim is to problematize the very question itself; to disabuse my reader of his or her faith in thinking that the meaning of the question is to provide any answer at all. What I will be attempting to demonstrate in the next several pages is that, by virtue of posing the question, we may be able to retrieve the question from the very metaphysical framework upon which the question has been historically subjugated. In doing so, it is my intention that we will be able to examine the means by which this fundamental question of legal thought will be brought back to its originary difficulty.
In short, we will be attempting a destructive interpretation of law: that is, freeing the question (what is law?) from entrenched forgetfulness, and shaking off the layers of onto-theo-logical metaphysical interpretation that has artificially grounded the question – in effect, made it too easy.
We will begin our destructive reading of the question “what is law?” by examining what it is we mean by the question; how does it signify its intelligibility to us, and what does it mean for us beings who pose the question. This will entail an explication of the meaning/intelligibility of asking the question as such, while at the same time interpreting and describing how the question itself brings to light our more general problem in the context of our initial findings. In Part II, we will begin to examining the mythologizing of law more closely – examining how modern legal theory has either ignored this question altogether, or, when it has taken it upon itself to pose the question, has insufficiently dealt with it. In Part III our analysis will take a minor detour by way of looking at the historical development of this mythology of law, drawing on for the purposes of our analysis Foucault’s genealogy of the “problem of population.” In Part IV we will examine the rise of the Cartesian “subject” and its role in traditional legal thought. In Part V we will read the history of the rise of the “problem of population” alongside the rise of the modern subject and bring them together in Heidegger’s notion of the crisis of global technology and the “age of the world picture.”
In Part VI we will continue our destructive dialogue with traditional legal philosophy by proposing a thoroughgoing demythologizing of the law with an explication of the mythos of law. Whatever conclusions may be drawn from our discussion will be outlined and examined in Part VII.