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Heavy Law/Light Law: Walter Benjamin, Friedrich Nietzsche, Robert Bork, Duncan Kennedy
Author(s): Joseph Jenkins
Source: Law and Literature, Vol. 17, No. 2 (Summer, 2005), pp. 249-268
Published by: University of California Press on behalf of the Cardozo School of Law
Stable URL: http://www.jstor.org/stable/4490575
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Heavy Law/Light Law
WALTER BENJAMIN, FRIEDRICH NIETZSCHE,
JosephJenkins*
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come into existence. This illusion resembles Nietzsche's "hand as made for
grasping," a striking image of a mistaken view:
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Buyingandselling,togetherwiththepsychologywhichaccompanies them,are
olderthaneventhebeginningsof anysocialformof organization andassocia-
tion.It wasfromthemostrudimentary formof personallawthatthebudding
senseof exchange,contract,debt,law,obligation,andcompensation firsttrans-
lateditselfintothecrudestandearliestsocialcomplexes(intheirrelationship to
similarcomplexes),alongwiththehabitof comparing, andcalculating
measuring,
power in to
relationship power.The eye was now adjustedto thisperspective:
andwiththatclumsyconsistency whichispeculiar to thethinkingof mankind in
earliertimes,a thinkingwhichis slow to get underway,but whichonce in
motioncontinuesrelentlesslyinthesamedirection, onesoonarrivesatthegreat
generalization:'Everythinghasitsprice;everythingcanbepaidoff'--the earli-
est and most naive canon of moraljustice [naivstenMoral-Kanonder Gerech-
tigkeit],the beginningof all "neighborliness,"
all "fairness"[Billigkeit],
all
all
"goodwill," "objectivity" on earth. at
Justice[Gerechtigkeit]theearliest
stage
of itsdevelopment is thegoodwillthatprevailsamongthoseof roughlyequal
power[unterungefalrGleichmiichtigen] to cometo termswithone another,to
"come to anunderstanding"oncemorethrougha settlement-andtoforcethose
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Jenkins * Heavy Law/Light Law
Nietzsche here attributes to "crude" and "clumsy" habits the kind of thinking
limited to a buy-sell, creditor-debtor mentality, a thinking limited to "the habit
of comparing, measuring, and calculating power in relationship to power." Such
thinking, along with its forcing of those less powerful to conform with it, re-
mains within the second-order realm of cause-effect adaptationdescribed above.
This is also the kind of thinking that goes with the idea of a debt to the
founding fathers. When he later writes that the "private legal relationship
between debtor and creditor" has been interpreted into relationships with Vor-
fahren, Nietzsche makes reference to an interpretation based on the crude and
clumsy habits of thinking he has described in section 8:
"generation"or "genera-
Here the convictionprevailsthatthe race [GescAlecht;
tions"]'5only exists by virtue of nur
[durchaus durch;perhaps"endure(s)only
through"] the sacrificeand achievements those
of the forefathers[Vorfahren;
who camebefore(ungendered)]-and thatone is obligedto repaythemthrough
sacrificeand achievements:a debtis recognized that gnaws incessantly [man
erkenntsomiteineSchuldan, die dadurchnochbestdndiganwiichst;recognitionof
debt/guilt, steadilygrowing]by virtueof the factthatthese forefathers[Ahnen;
ancestors(ungendered)],in theircontinuedexistence [Fort-existence; forward-
as
existence] powerfulspirits, never cease to grant the race new advantagesand
advancesin strength.
According to this kind of logic, thefear of the forefather[Furchtvordem
Ahnherrn; dreadbeforeancestors]andof his power,the consciousnessof indebt-
ednesstowardshim necessarilyincreasesin exactproportionas the powerof the
race[MachtdesGeschlechts; powerof the generations]itself increases,as the race
[Geschlecht]itself becomesever-more victorious,independent,respected,feared.
And not somehow the otherway around![Nichtetwaumgekehrt.]'6
The "Second Essay," read in its entirety, exhorts the reader to turn their think-
ing around; this turning around has much in common with Benjamin's
emphasis on the readerof history (the law-receiver, the generation that fol-
lows) and with his warning against "catastrophic" narrative (narrative fixed
tightly to an imagined founding moment). Nietzsche proceeds to link fear/
debt/guilt toward the Vorfa/r (forebear) to fear/debt/guilt toward any god
(including the Christian God). Then the link is made: Vorfa/r-god-fixed-
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[A]courtthatmakesratherthanimplements with
valuechoicescannotbesquared
thepresuppositions
of a democratic The
society. manwho understands
theissues
andnevertheless
insistsupontherightnessof theWarrenCourt'sperformance
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Repetition of more cumbersome terms such as "strategies to avoid form by fracturing"is thereby
avoided.
6. See Benjamin,supranote 4.
7. The claim is implied by Benjamin'sstatementof methodology at Konvolute N Ia, 8 in his Passagen-
Werk.Id., at 460.
8. See, for example, WalterBenjamin,"On Language as Such and on the Language of Man,"in Reflec-
tions:Essays, Aphorisms,AutobiographicalWritings,Peter Demetz, ed., Edmund Jephcott,trans., 314-
32 (New York: Schocken Books, 1978); and the closing pages of his The Originof GermanTragic
Drama, John Osborne, trans. (London: Verso, 1985).
9. FriedrichNietzsche, "Second Essay,"in On the Genealogyof Morals,Douglas Smith, trans. (Oxford:
Oxford University Press, 1996). Smith's translation has been used throughout this article, unless
otherwise noted.
io. Id., section 12, p. 58.
II. Id. (emphasisadded).
12. Richard Weisberg, "Text into Theory: A Literary Approach to the Constitution," 20 GeorgiaLaw
Review939-94 (1986), at 975.
13. FriedrichNietzsche, "On Truth and Lie in an Extra-MoralSense," in The PortableNietqsche,Walter
Kaufmann,trans.(New York:Viking, 1954),47. The perspectivetakenin thatessay-of world history
as taking place in a remote and insignificantcorner of the universe-is another strong indication that
Nietzsche did not imagine der Wille urMacht as an attributecontained within the human individual.
Nietzsche also writes:
There is nothing in natureso despicableor insignificantthat it cannot immediatelybe blown up
like a bag by a slight breath of this power of knowledge; and just as every porter wants an
admirer,the proudest humanbeing, the philosopher,thinks thathe sees the eyes of the universe
telescopically focused from all sides on his actions and thoughts. (42-43)
14. Nietysche'sWerke.ErsteAbteilung.Band VII. Zur GenealogiederMoral (Leipzig: Alfred KrbnerVerlag,
1910), 361 (emphasisin the original).
15. Even the misconceptionsthat Nietzsche is a racistare relatedto a failure to read Nietzsche's emphasis
on that whichfactures form. Smith here translatesGeschlechtas race, in a context where Nietzsche has
which
just made use, a few lines above, of the unusualcompound substantiveGeschlechtsgenossenschaft,
Smith has translatedas race-community.Ratherthan choosing the closed term Rasse (race), Nietzsche
has chosen a term thatpertainsto a semanticgroup that includes sex and generation.A stronger trans-
lation of Nietzsche's text, one thataccountsfor its emphasison disruptionof forms and its celebrationof
the humancapacityto overpower conventional form-including the conventional form which groups
people into fixed categories such as race-would render Geschlechtsgenossenschaft as something like
"the earliestgenerationsto live in community,"with the shortenedterm Geschlechtrenderedas "gener-
ation" or "generations."
16. Nietzsche, Genealogy,supranote 9 at section 19.
17. Id., at section io (italic emphasisin the original, underscoreemphasisadded).
18. Of course the word menschappearsin Nietzsche's text (as in DieserMenschderZukunfi,in the closing
passages of the essay, id., at section 24). But English translations,by making choices in numerous
instanceslike the choice made by Smith here, tend to give the impressionthat the encounterof causes-
not-in-relation,as describedin Nietzsche's Germantext, refers insteadto forces each containedwithin
an individual human being. This is inappropriate,as argued throughout this article. Expressionslike
DieserMenschderZukunftshould be readas referringto a futuretypeof person ratherthana single indi-
vidual who will alone be founderof the future.
19. Texts relevant to this insecure terrain include, to name a few, Walter Benjamin's"Critiqueof Vio-
lence," in Benjamin,Reflections,supranote 8 at 277-300; JacquesDerrida's "Forceof Law: The 'Mys-
tical Foundationof Authority',"in Deconstruction andthePossibilityof Justice, Drucilla Cornell, Michel
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