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Link Roundup, More on Kahn

June 30th, 2011

The Immanent Frame continues its discussion of Paul Kahn's book, Political Theology: "After the manner of psychoanalysis, political theology reflects the larger, darker, contours that liberalism—the discourse of the modern nation-state—fails to see or imagine for itself."

Link Roundup, American Property

June 30th, 2011

H-Net reviews Stuart Banner's American Property: A History of How, Why, and What We Own.

Link Roundup, Legal Interpretation

June 29th, 2011

Timothy A.O. Endicott (University of Oxford - Faculty of Law) has posted Legal Interpretation to SSRN. From the abstract:

The focus of this work is the role of interpretation in “legal reasoning,” defined to mean "finding rational support for legal conclusions (general or particular)". My argument is that each of the following aspects of legal reasoning need not involve interpretation: 1. Resolving indeterminacies as to the content of the law; 2. Working out the requirements of abstract legal provisions; 3. Deciding what is just; 4. Equitable interference with legal duties or powers or rights; 5. Understanding the law. I do not claim that interpretation is unimportant to legal reasoning, but that most legal reasoning is not interpretative. Much of what is commonly called “interpretation” can be done with no interpretation at all.

Before the Law: Reading Derrida Reading Kafka

June 28th, 2011

by Abraham Rubin

Die Öffentlichkeit der Hauptwerke der alten kabbalistischen Literatur ist die wichtigste Garantie ihres Geheimnisses

The exposedness of the major works of Kabbalistic literature is the greatest guarantee of their secrecy

Gershom Scholem, “Zehn unhistorisch Sätze über  Kabbala” (1958)

In Franz Kafka’s renowned parable Before the Law,[1] a man from the country comes before the gates of the law hoping to gain entry, but is refused by a bearded, Cossack-looking gatekeeper, who nevertheless, does not deny the possibility that entry will be granted at some later indefinite point. “‘It is possible,’ says the gatekeeper, ‘but not now’.” Expecting to eventually gain access to the law, since “the law should be accessible to all,” the man from the country spends his days outside the law, awaiting admission, which is never granted. The parable ends abruptly at the moment of the man’s death with the gatekeeper’s thundering exclamation, “this entry was meant only for you. I am now going to close it.” The sheer failure of this missed encounter should not be foreign to any reader of Kafka. What is most striking and paradoxical about this parable, though, is the man’s liminal position with regard to the law—the man stands before the gate of the law, which is wide open and at the same time utterly inaccessible to him. Even more puzzling, is the fundamental question of the nature of this undefined law which the man seeks access to. What is this law? Kafka does not offer his readers any key to unlock this mystery. But why should he? After all, the gate to the law is wide open. What are we to make of this irresolvable parable, which does not offer itself to any authoritative interpretation? The blaring contradiction of a law which is at once fully exposed and yet completely hidden might reflect the reader’s own relation to this text as well, which is seemingly open but ultimately hermetic. Jacques Derrida follows this line of thought in his astute reading of the contradictory nature of this esoteric text, which preserves its secrecy through its bare openness.[2] Like the man from the country, who comes before the law believing that it should always be open to everyone, we too expect the meaning of this parable to unfold before us through our reading of it. The man’s frustrated relationship to the law, then, is replicated in the reader’s own interpretative expectations. The complementary position of the law and narrative in Derrida’s interpretation allows us to understand one in terms of the other. That is—the law of fiction, and the fiction of law. Derrida proposes the universalizing dictum of Kant’s categorical imperative as an example of the law’s fictional foundation. “Act as if the maxim of your action were by your will to turn into a universal law of nature,” says Kant. As Derrida notes, Kant’s conditional “as if” (als ob) introduces the fiction of a universal moral subject into legal thought, thereby excluding all historical and empirical contingencies (190). By imagining a universal maxim in order to categorize the law, the law itself is divested of all singularities, and ultimately of all content whatsoever. The fictional foundation of the law, then, is the belief that the law is fictionless. Its authority rests on its categorical status as an a-historical binding universal.  This law has no history and no origin—hence its transparent obscurity! To bring us back to Kafka’s parable, the man from the country (possibly an unknowing Kantian) is certain of the law’s universality—he believes that the law should be accessible to all people at all times. Yet, the man does not grasp that it is precisely this law’s universality that prevents him from accessing it. The status of categorical universal renders the law completely void in relation to all singularities. For the law to encompass all, it must contain nothing. It is this paradox that leaves the man waiting indefinitely before the law, but keeps him from accessing the law itself. But is the man from the country really outside the law? In the story, the law seems to be spatially constituted through its boundaries: One can either be inside or outside of the law. However, on a closer reading, it is in fact the collapse of this division that becomes the law’s constitutive trait. Besides the gatekeeper’s verbal prohibition, there is no physical barrier that might stop the man from the country from entering into the law. Standing before the law, the man thereby already submits to its authority. He awaits admission on its threshold. His relation to the law is that of suspended expectation: “not now,” as the gatekeeper tells him. The unconsummated relationship of “not now” or “not yet” determines the law’s structural dynamic as one of indeterminate postponement, which is, in fact, its only quality. The law’s ever-suspended state, its utter negativity, renders it completely void while simultaneously rife with meaning. Absolute, yet ambiguous, it is present, but only through its absence—thus relating to the man only in its non-relation to him. Derrida describes the self-contradictory dynamic of the law thus:

The law is prohibited. But this contradictory self-prohibition allows man the freedom of self-determination, even though this freedom cancels itself through the self-prohibition of entering the law. Before the law, the man is a subject of the law in appearing before it. This is obvious, but since he is before it because he cannot enter it, he is also outside the law (an outlaw). He is neither under the law nor in the law. He is both a subject of the law and an outlaw. (205)

The law, as Derrida shows, has dissolved its own defining boundaries. It is no longer clear what is internal or external to it. Consequently, what gets lost is any clear demarcation between law and lawlessness. If the law’s only apparent quality is its forbidden threshold, and if its only discernable essence is the prohibition of its own presentation, then it contains nothing but its prohibitive exteriority. Interestingly, the parable maintains a metonymic relation to the law it narrates. It is relayed to K. by a priest in the ninth chapter of The Trial, situated in a perplexing relationship to the novel in which it appears. Is the parable merely a segment of this greater work, or can it be read independently? To complicate the matter, “Before the Law” appeared in Kafka’s collection of short stories A Country Doctor, one of the few works published in his lifetime, whereas The Trial was only published posthumously and against Kafka’s wishes, a year after his death. Like the fuzziness of the law it narrates, the parable’s ambiguity precludes its instructive role, leaving it open to any number of allegorical interpretations. If the parable’s rhetorical function is to convey a moral or spiritual principle by rule of analogy, it seems that this parable fails—it does not transmit any clear illustrative principle. This uncommunicative parable transmits nothing but itself to the reader. Much like its unrepresentable law, which appears solely as prohibition to the man. In The Trial, K. hopes to find answers to his inexplicable and convoluted experiences with the court and its elaborate bureaucratic structure (as a side note, I might add that no trial ever takes place in this novel). In response to K.’s puzzlement, the priest cites this parable from “the introduction to the Law.” He then proceeds to interpret the parable for K., but repeatedly inverts each one of his interpretations with the facility of a Talmudic sophist. This rabbi-priest provides K. with an extensive exegesis of the parable’s intricacies, only to overturn every judgment he presents. The exegetical debate between K. and the priest remains inconclusive at best, because every time they progress forward in their understanding of the parable, they upend their previous interpretative assumptions. The infinitely regressive character of this debate proceeds, among other things, from the peculiar nature of the parable’s unspecified law. If the man from the country seeks a way into the law, K.’s problem is that of finding a way out of the parable (a difficulty which might also be extended to reader). This law operates, or dysfunctions under the same rule as the parable—it refers to nothing outside itself. Does the parable of the law’s indeterminate suspension impart any lesson? Might it be that of its own rhetorical failure? An illustration of its own thwarted appeal? Is it a theological metaphor for the inaccessible transcendent, as Max Brod proposed, or an allegory for the threatening obscurity of modern bureaucracies? The inexhaustible readings of this non-parable frustrate any possibility of interpretative closure, leaving us, like the man from the country, suspended indefinitely. Abraham Rubin, a second year CJL Graduate Fellow, is a doctoral candidate in the Department of Comparative Literature at the CUNY Graduate Center and a graduate teaching fellow in the English Department of City College.
[1] The parable can be found in in Willa and Edwin Muir’s translation in The Complete Stories of Franz Kafka. Ed. Nahum Norbert Glatzer. London, England: Vintage, 2005. For an online English translation of this text, see http://records.viu.ca/~johnstoi/kafka/beforethelaw.htm [2] Jacques Derrida. “Before the Law” in Acts of Literature. Ed. Derek Attridge. New York: Routledge, 1992. (pp. 181-220)

Link Roundup, Law and Religion

June 27th, 2011

Mirror of Justice has an interesting post on the political history of law and religion scholarship. "[P]erhaps like the political culture itself, the political culture of law and religion scholarship exhibits a pattern of fragmentation -- it begins to look much more like a European parliamentary arrangement than the American situation at least as it once was."

Link Roundup, Islam and the Courts

June 24th, 2011

Marie A. Failinger (Hamline University School of Law) has posted Islam in the Mind of American Courts: 1800-1960 to SSRN. From the abstract:

This article surveys references to Islam and Muslims in American court opinions from 1800 to 1960. It argues that American judges as a group portray an ambivalent attitude toward Muslims, some treating Islam disparagingly or as an exotic and fanciful religion, and others emphasizing the religious equality that Muslims deserve.

Link Roundup, Political Theology

June 22nd, 2011

The Immanent Frame has posted an excerpt from the Introduction of Paul W. Kahn's book Political Theology: Four New Chapters on the Concept of Sovereignty. (Our review of the book is coming soon.)

Link Roundup, The Constitution

June 22nd, 2011

Should America revise its Constitution? Fareed Zakaria thinks so.

Link Roundup, Ancient Graffiti

June 21st, 2011

Archaeologists in Israel try to interpret ancient Aramaic graffiti (via Jewish Ideas Daily).

Link Roundup, Constitutional Originalism

June 20th, 2011

Robert W. Bennett and Lawrence B. Solum's book Constitutional Originalism: A Debate has just been published (hat tip: Legal Theory Blog). From the book's description:

Problems of constitutional interpretation have many faces, but much of the contemporary discussion has focused on what has come to be called "originalism." The core of originalism is the belief that fidelity to the original understanding of the Constitution should constrain contemporary judges. As originalist thinking has evolved, it has become clear that there is a family of originalist theories, some emphasizing the intent of the framers, while others focus on the original public meaning of the constitutional text. This idea has enjoyed a modern resurgence, in good part in reaction to the assumption of more sweeping power by the judiciary, operating in the name of constitutional interpretation. Those arguing for a "living Constitution" that keeps up with a changing world and changing values have resisted originalism...Robert W. Bennett and Lawrence B. Solum elucidate the two sides of this debate and mediate between them in order to separate differences that are real from those that are only apparent.