L a w a n d C r i t i q u e Vol.VIII no.

1 [1997]

T H E S I L E N T VOICE OF LAW:
LEGAL P H I L O S O P H Y AS LEGAL T H I N K I N G

by

ALEXANDER CARNERAI~UNGSTROM*

The one most important thing is to find time within time

Andrey Tarkowsky 1

If we, as we are often moved to do, a t t e m p t to c o n t e m p l a t e t h a t which

c a n n o t be thought, it is w r i t t e n t h a t we shall suffer either t h a t our soul be
severed to r e t u r n from where it came, or t h a t we shall become confused.
To t h i n k a n d not suffer is the a t t e m p t of metaphysics to r e m a i n w i t h i n the
world of t r a d i t i o n a l discourse while a t peace w i t h the l i m i t s of t h o u g h t .
Such a place, a n oasis in the desert, is a place of l i s t e n i n g to the i m m a n e n t
voice so as to convey its echo into the world. This echo, t h i s i m m a n e n t
voice made visible, is the possibility of a poetics of legal s p e a k i n g w h i c h
would m a i n t a i n the f i n i t u d e of legitimacy. This ghost voice is the visible
of t r a g e d y a n d the groundless d i m e n s i o n of law. W h a t we seek here is a
space for the divine w i t h i n the profane, a n i n f i n i t y w i t h i n finitude.
Silence is where we a l w a y s b e g i n a n d it is always w i t h us. In the
silence of this oasis a question arises: W h a t does it m e a n t h a t law is? W h y
is t h e r e law r a t h e r t h a n n o t h i n g ? 2 T h i n k i n g seeks its place i n o u r lost

* Faculty of Law, University of Copenhagen, Denmark. An earlier version of

this paper was presented at the Critical Legal Conference's 1995 Annual
Meeting at the University of Edinburgh. I am grateful to my friend Richard
Edwards, lawyer and thinker, who has read several earlier drafts on this
project and with whom I have had the pleasure of many inspiring and seducing
conversations on Law, Friendship and Finitude. The article is dedicated to
him.
1 A. Tarkowsky, Time within Time: The Diaries 1970-1986 (London: Faber and
Faber, 1994).
2 According to Heidegger, this is the most fundamental question of metaphysics
and therefore of law. See M. Heidegger, Einfi~hrung in die M e t a p h y s i k
(Tfibingen: Max Niemeyer Verlag, 1987, F~infte, durchgesehene Auflage), 1.
Recently Baudrillard has stressed that "without appearances the world be
nothing but one complete crime; a crime without a perpetrator, without a
72 L a w a n d Critique VoLVIII no.1 [1997]

m e m o r y a n d o u r f o r g o t t e n being. We find, in t h i s g l a n c e t h a t h a s no
reference, s o m e t h i n g beyond good a n d evil: t h e j o u r n e y itself. T h e j o u r n e y
b e g i n s w i t h a question concerning t h e direction of t h e p h i l o s o p h y of law.
I n t h i s j o u r n e y w i t h o u t a d e s t i n y comes t h e r e c o g n i t i o n t h a t it is no
l o n g e r p o s s i b l e to know t h e law. L a w lies b e y o n d t h e r a t i o n a l i s a t i o n of
knowledge. To s p e a k of legal p h i l o s o p h y as legal t h i n k i n g , it is n e c e s s a r y
to see t h i n k i n g as l i s t e n i n g to t h e voice of others. The s i l e n t voice of l a w is
a s i l e n t b r e a t h i n g t h a t h a s not y e t e n t e r e d l a n g u a g e . W e m u s t l i s t e n to
h e a r t h e way. T h e s i l e n t voice of law s p e a k s b e c a u s e i t h a p p e n s a t t h e
l i m i t of l a n g u a g e . This law is t h e law ofEreignis; a n a m e given by M a r t i n
Heidegger: "The event (Ereignis) is t h e law b e c a u s e it g a t h e r s m o r t a l s into
t h e a p p r o p r i a t e n e s s of t h e i r n a t u r e a n d t h e r e holds t h e m ' . 3 Das Ereignis
r e n d e r s p r e s e n t t h e r e l a t i o n b e t w e e n t h e h u m a n a n d t h e divine. T h e
e v e n t is t h e s p i n n i n g p l a y of d a n c e of s k y a n d e a r t h , o f i m m o r t a l s a n d
m o r t a l s a s t h e y oppose a n d p l a y w i t h e a c h o t h e r . T h e e v e n t is t h e
c l e a r i n g of a space for our e k - s t a s y , o u r love, o u r f r i e n d s h i p a n d o u r law.
This p l a y of t h e world, t h e t o t a l i t y of Being, is a g r o u n d w i t h o u t ground.
I n w h a t follows, we shall t r y to see law as t h e force of t h e b o u n d l e s s event,
To c a p t u r e t h i s force is to r e t h i n k legal p h i l o s o p h y a n d its m e t a p h y s i c s as
a p l a y w i t h o u t r u l e s . H e i d e g g e r w a n t s us to see o u r e x i s t e n c e n o t
b o u n d e d w i t h laws b u t as t h e p l a y of worlds. A p l a y of e a r t h , sky, gods
and mortals.
T h e b e g i n n i n g of legal p h i l o s o p h y is not a questio quid juris (a w h a t ) ,
b u t a Quod, that law is. W e c a n n o t know t h e law b e c a u s e it is not i n f u s e d
in a concept. Its e x i s t e n c e is o u t s i d e t h e t h o u g h t of m a n . L a w is t h e
b o u n d l e s s g a t h e r i n g of t h i n g s , a logos, a n arche of law, a p r e - e m i n e n t
i r r e d u c i b l e s u b s t r a t e of t h i n g s t h a t e m e r g e from it a n d r e m a i n r u l e d b y it.
T h i n k i n g is l i s t e n i n g a n d as s u c h it g a t h e r s w h a t is a l r e a d y l a i d down.
The i m p o r t a n t t h i n g in logos is not t h a t h u m a n b e i n g s a r e s p e a k i n g , b u t
t h a t s o m e t h i n g is b e i n g said. Speech is a n a c t i v i t y in w h i c h s o m e t h i n g is

victim, without a motive." For Baudrillard, the real question now is: "Why is
there nothing and not just something?" I find this too easy. If there were no
appearances the world would not even be a crime, it would be no-thing. See J.
Baudrillard, The Complete Crime (Kcbenhavn: Det kgl. danske kunst-akademi,
1994) (my translation).
M Heidegger, Gesamtausgabe Band 12: Unterwegs zur Sprache (Frankfurt am
Main: Klostermann, 1959), 248; On the Way to Language, trans. P. Hertz (San
Fransisco: Harper, 1971), 128-129. Instead of "appropriation" (Hertz's
translation), I prefer "the event". For further comments, see n.30.
 T h e Silent V o i c e o f Law: L e g a l P h i l o s o p h y as L e g a l T h i n k i n g 73

gathered up as man and world. Gathering is then the originary sense of

speech. If legal discourse is a mode of forgetting, 4 this is because the
essence of logos has fallen into oblivion. Outside oblivion we find legal
thinking.
Legal thinking returns to the unsaid voice, traversing into the
sounded word and unfolding out of thinking into Being, a nearness that
motivates and structures the event of language. Such nearness is our
relation to the other as the happening which takes place as the unsayable.
To relate to the concrete, absolute Other, is to relate to the unsayable.
This may be the beginning of the silent voice of law. Poetic thinking for
legal philosophy is the invitation into a place of its own imagining where
gaps, silence and the interruption of speech leaves the other, the legal
subject, unnamed in language.
From ancient thinking we have learned that friendship may lie at the
heart of law. According to Heidegger, friendship is already present in
speaking to the other. Friendship is the gestalt that makes us think. In
what follows we should like to speak about friendship as the invisible
ethics of law, as a voice beyond the concept of law and yet a very deep
expression of the law. A voice that is inherent at the limit of language
within language itself. If so, the return of ethics to law happens at the
limit of language where a new reality sets itself in motion.

The Metaphysics of Law

Modern law's attempt to abandon metaphysics has reduced law to a

question of power s and value. By referring only to the centre of power,
one avoids posing the more important question as to the philosophical
presuppositions of law. By speaking of value, we posit the world. Despite
claiming the opposite, all modern law is grounded in metaphysics. It
carries on metaphysics without admitting it. This is the beginning of the
oblivion of modern law. It has forgotten that the image is only an image.
With this oblivion there follows the replacement of Being by beings. With
this replacement, law destroys h u m a n experience by reducing the

4 J-F. Lyotard, The Different: Phrases in Dispute, trans. G. Van Den Abbelee
(Minnesota: Minnesota University Press, 1988), 138.
5 R. Cover, "Nomos and Narrative" in Narrative, Violence, and the Law. The
Essays of R. Cover, ed. M. Minov, M. Ryan, and A. Sarat (Ann Arbor: The
University of Michigan Press, 1992).
74 L a w a n d C r i t i q u e Vol.VIII no.1 [1997]

ontological basis of law as Being to a q u e s t i o n of legitimacy as validity. 6

The question of w h a t law is falls outside the a r e a of legal theory.
Today law is v a l u e a n d idle t a l k of v a l u e s (Gerede). Since Plato, the
Being of law has been conceived as a n idea. This gave the f u n d a m e n t for
j u s t i f y i n g t h e epistemological project of ethics a n d law. The c h a l l e n g e
today is to go back to the point where the "good" as a way of being for m a n
is i n s t i t u t e d . I n the h i s t o r y of w e s t e r n metaphysics, we could n a m e this
as the Platonic m o m e n t . W h a t is it t h a t opens u p the experience of w h a t
is b e y o n d beings, b e y o n d the m e t a p h y s i c s of economy? The hyperbolic
doubt is a doubt t h a t guides the experience of the good, as the origin of the
t r a n s c e n d e n t a l world, beyond all beings. Modern law m a r k s a t u r n away
from the t r a n s c e n d e n t a n d the e x e m p l a r y to the s e p a r a t i o n of Being a n d
the good; b e t w e e n Being a n d life. A n y theory of v a l u e is worldless a n d
v a l u e s can only signify a lost a c t u a l i t y - a lack of dwelling which is the
facticity of t h i n k i n g a n d ethics.
Moral philosophy does not accept t h a t the world is. Moral theories, as
expressed t h r o u g h m o d e r n legal philosophy, 7 destroy experience, s Moral
philosophy alienates, as S t a n l e y Cavell notes, "the i n a b i l i t y to accept the

6 I am thinking of analytical legal philosophy in its version of realism, positivism

and institutional legal theory. My reading of legal philosophy is an experience
of staring into a corpus without body, without thought, without presence. All
my books of Kelsen, Austin, Ross, Hart, Dworkin, Holmes, Peczenik and
MacCormick will live on only for their analytical clarity and not for their
thinking. These works are more or less saying the same because none of them
takes seriously the ontological relation between language and reality. The
return of thinking to legal philosophy is the audacity to operate on the limit of
language and thought. In legal thinking the question of law is a question of
experience and Being.
7 Modern legal philosophy has been strongly influenced by moral philosophy.
This and English empiricism have had a tremendous impact on thinking law
as the normative, as a value. In legal theory, both in the English-speaking
world and in Scandinavia, the mind of the legal theorist has been hounded by
the jargon and tone of moral philosophy. We only have to think of expressions
like "state of affairs", "is and ought", "intentionality', "consciousness", "moral
facts", etc.
8 With the loss of wonderment and faith, and with an excess of meaning
attributed to our daily events, we can no longer translate the unusual into
experience. Experience exists as something enacted outside the individual. In
legal thinking we must pay attention to the unusual. For an excellent account
of modern life's destruction of experience, see G. Agamben, Infancy & History.
Essay on the Destruction of Experience, trans. L. Heron (London and New York:
Verso, 1993), 14.
 T h e S i l e n t V o i c e o f Law: L e g a l P h i l o s o p h y as L e g a l T h i n k i n g 75

world and to accept other people, to acknowledge the world and to

acknowledge other people, without guaranties.'9 Obligation is not a value
we should hold. "There is nothing subjectivistic about obligation. It is
r a t h e r something t h a t happens to me". lo The denigration of experience in
the empiricism and rationalism of legal philosophy is w h a t alienates law
from h u m a n existence. It is experience itself t h a t s i t u a t e s the h u m a n .
The classical empiricist u n d e r s t a n d i n g of what experience is, lacking any
sense of place, is too n a r r o w and u t t e r l y wrong. Legal philosophy,
w h e t h e r strict analytical, positivistic, realistic, or institutional, possesses
no e x p e r i e n c e of r e a l i t y a n d t h e r e f o r e no m e t a p h y s i c s . I t s a n t i -
metaphysical status renders it unreal.
Legal thinking is made more empirical t h a n the e m p i r i c i s t when it
questions the is and the thus of law. Any legal philosophy claiming to
think, w h e t h e r it be the philosophy of difference and a l t e r i t y , s y s t e m
theory, or phenomenology, is forced to reconsider the ontological basis
upon which its claims are made. If the crisis of law is a crisis of form 11
t h e n reflection on law enters a phase where t h i n k i n g itself becomes an
issue. The form is no longer a p o s t - K a n t i a n geometry. If the form of
legality no longer g u a r a n t e e s obedience to the law, we m u s t t h i n k about
w h a t it means for the form to be. The crisis of the legal form is a crisis of
thinking.

Thinking and Woodpaths

In the famous posthumous Spiegel interview, Heidegger spells out the

tragic fate of thinking: "Thinking has by reason of its own t a s k p u t itself
in a difficult situation. And along with this difficulty, there is also an
alienation from thinking, an alienation which is nourished by the position
of power occupied by the sciences, so t h a t t h i n k i n g m u s t give up
a n s w e r i n g questions of a practical and world-wide character, the very
a n s w e r s t h a t are d e m a n d e d by d a i l y necessities. ''12 E a r l i e r in t h e

9 See H. Putnam, Renewing Philosophy (Cambridge, Mass.: Harvard University

Press, 1992), 178. Putnam refers to Cavell.
10 J.D. Caputo, Against Ethics (Bloomington and Indianapolis: Indiana
University Press, 1993), 31.
11 See C. Douzinas & R. Warrington, Justice Miscarried. Ethics, Aesthetics and
the Law (New York, London, etc.: Harvester Wheatsheaf, 1994), 1.
12 R. Wolin, ed., The Heidegger Controversy. A Critical Reader (Cambridge, MA:
MIT Press, 1993), 115.
76 L a w a n d Critique Vol.VIII no.1 [1997]

i n t e r v i e w , Heidegger claims, i n a c l a i r v o y a n t tone, t h a t cybernetics will

replace philosophy. Today this is the n i g h t m a r e . Legal expert systems,
now a popular course in Law Schools, are supposed to solve social conflict.
Legal s t u d e n t s are educated to be social locksmiths.
We are s u r r o u n d e d by legal theory. The " t h i n k i n g " of legal t h e o r y
moves i n the shadow of the essential n a t u r e of technology. T h i n k i n g h a s
left law because law has become a n i n s t r u m e n t , a p a r t of cybernetics. As
with science, law no longer y e a r n s to t h i n k . 13 L a n g u a g e is locked i n the
p r i s o n of K a n t i a n practical reason. W h e n t h i n k i n g b r u s h e s aside t h e
problem of legitimacy, law is no longer a problem. W i t h o u t t h i n k i n g , it
seems, law will r e m a i n a c e r t a i n legal fiction a n d n o t a fiction of t h e
world.
How are we to t h i n k ? 14 I shall follow Heidegger's Denkweg a n d trace
possible directions for legal philosophy. W h e n t h i n k i n g t u r n s itself into a
problem, Heidegger insists on a new conception of philosophy. The call for
t h i n k i n g c a n n o t be a n s w e r e d by proposing a d e f i n i t i o n of t h e concept
thinking, a n d t h e n e x p l a i n i n g t h a t definition, m T h i n k i n g is not a b o u t
r e p r e s e n t a t i o n a l ideas.
We c a n n o t a n d s h a l l n o t p r e s u p p o s e t h e p u r p o s e a n d object of
t h i n k i n g . Proper t h i n k i n g is a q u e s t i o n i n g , 16 a listening. 17 H e a r i n g the
voice t h a t s p e a k s i n t h i n k i n g b e c o m e s t h e p r e s e n c i n g of p r e s e n c e .
Heidegger associates t h i n k i n g proper with a path. is T h i n k i n g g r a n t s to us

13 M. Heidegger, What is Called Thinking?, trans. G. Gray (New York: Harper &
Row, 1968), 8.
14 And there is a hope it seems. For Heidegger, thinking might save us from
philosophy degenerating into single disciplines.
15 Supra n.13, at 21.
16 M. Heidegger, "The Question Concerning Technology", in Martin Heidegger:
Basic Writings, trans. D.F. Krell (San Francisco: Harper, 1977), 317.
17 Although we normally associate thinking as listening with the later Heidegger,
it is already an issue in his early masterpiece. See M. Heidegger, Sein und
Zeit (Tfibingen: Max Niemeyer Verlag, 1986 (1926)), w 163; Being and Time,
trans. J. Macquarrie & E. Robinson (Oxford: Blackwell, 1992), 206. "Indeed,
hearing constitutes the primary and authentic way in which Dasein is open for
its ownmost potentiality-for-Being-as in hearing the voice of the friend whom
every Dasein carries with it." This is the beginning of legal thinking since we
see how Dasein carries a friend with it, since listening to others implies a
concern for others.
18 The publication of Holzwege (Frankfurt am Main: V. Klostermann, 1950)
marks the turning (die Kehre) of the later Heidegger. Holzwege (Feldweg)
means woodpaths or simply path. In German etymology it also signifies the
 T h e S i l e n t V o i c e o f Law: L e g a l P h i l o s o p h y as L e g a l T h i n k i n g 77

a world without will. Therefore thinking is a gift. Denken ist danken

(thinking is to thank) in typical Heideggerian tone. m This gift is given to
us and the more we abide to proper thinking the more human we are.
The demise of thinking is designated by the processes of verification
in subjective reason. The early Heidegger replaced the subjectivity of the
h u m a n subject by Dasein. Dasein is not empirical man and does not
derive from consciousness, but is the very possibility for consciousness. In
his later thinking, Heidegger substituted thinking for Dasein, an even less
subjectivist, humanist, existential meaning. Only "thinking" can "replace"
Being with Ereignis (the event). Thinking, properly speaking, does not
have any content to pursue. In the essay "The Thinker as Poet",
Heidegger writes that the "bad" danger threatening thinking is the
philosophical attempt to establish a correspondence between propositions
and given states of affairs. To think poetically is to be without any
external end. The worst enemy of thinking, however, is thinking itself.
What is evil about thinking is its self-affirmation that it can find within
itself all it takes for its own satisfaction, for example, innate ideas. Hence
Heidegger warns us that thinking must think against itself, against the
old conviction that thinking springs from itself, providing its own ideas,
its own contents and its own purpose. "The good and thus wholesome
danger is the nighness of the singing poet. "2~
A poet who understands the world sings for no end or purpose. The
issue for thinking is presencing. The ever-rising o f p h y s i s comes into
presence without aim, for no reason. Heidegger sets ousia apart from
p a r o u s i a , beingness from Being, methods of inquiry from paths of
thinking. The separation of path and method is the first step for legal
thinking. Philosophy is concerned with paths. Science, on the other hand,
is concerned only with methods. The path of thinking poetically is the
road to nowhere. They are woodpaths where to "think" is to "thank" the
goalless showing-forth of phenomena. This is the identity of thinking and
presencing.
Every presence is an economy of self-regulation. To think is to
correspond to a truth "already accomplished" in advance by the self-

stage of "getting lost". Woodpath is a magical image of thought that sees

thinking as something that is on its way. "Path" is an arche-word in language
and it turns toward contemplative man.
19 What is called thinking?, supra n.13, at 141.
20 M. Heidegger, "The Thinker as Poet", in Poetry, Language, Thought, trans. A.
Hofstadter (New York: Harper Books, 1971), 8.
78 L a w a n d C r i t i q u e VoI.VIII no.1 [1997]

i n t e r p r e t a t i o n of Being. The o r i g i n a r y rule of t h i n k i n g is b e i n g a n d time;

t h e e v e n t as t h e o r i g i n a r y t e r m p o r a l i s a t i o n . T h i s t e m p o r a l i t y b i n d s
t h i n k i n g to epochal history, technology a n d t h e event. I f we u n d e r s t a n d
B e i n g as t i m e we can a l r e a d y r e c o g n i s e t h e e v e n t - l i k e t e m p o r a l i t y . To
t h i n k is to discover t i m e as event. The e v e n t of a p p r o p r i a t i o n p r e s u p p o s e s
t h e w o r k of history. The question t h e n is: Is t h e r e a n o r d e r for l a w f u l n e s s
a n d h u m a n dwelling? This r e q u i r e s a t i m e c o n t i n u u m as t h e r e f e r e n t to
all r a t i o n a l control a n d d e t e r m i n a t i o n . It is a p p a r e n t t h a t t h e e v e n t as the
Law, r e q u i r e s a new u n d e r s t a n d i n g of time, t h e m o m e n t as a n economy of
history. F o r H e i d e g g e r , t h e c e n t r a l e x p e r i e n c e o f B e i n g is
t e m p o r a l i s a t i o n . As such, a n y t h i n k i n g a l r e a d y c o r r e s p o n d s to a t r u t h of
e n t i t i e s t h a t h a s a l r e a d y happened.

Legal Thinking

Only so far as man, ek-sisting into the truth of Being, belongs to Being can
there come from Being itself the assignment of those directions that must
become law and rule for man.
Heidegger 21
L a w is not a p r o d u c t of the e m p i r i c a l m a n . Law h a s n e i t h e r subject n o r
God as its disposition. Law exists as a law of b e i n g t h a t precedes f o r m a l
legal validity. Legal t h i n k i n g does not s p e a k a b o u t a n "I" or a "self" a t t h e
c e n t r e of r a t i o n a l i t y . The "Self' is d e c e n t r e d a n d r e p l a c e d b y t h e "world"
as a n e x i s t e n t i a l c a t e g o r y e x p r e s s i n g a n a l w a y s possible w a y for m a n to
be. M a n lives in ek-sistens, since he s t a n d s out in t h e world. M a n has a
w o r l d b e c a u s e he lives in t h e s t r e a m of events u s u r p e d by m e a n i n g . This
m a n is n o t t h e e m p i r i c a l will b u t t h e s h a d o w of t h e world. T h e w e s t e r n
b e l i e f in a h y p o t h e t i c a l g r o u n d n o r m ( G r u n d n o r m ) is no l o n g e r tenable.22
T h e m o d e r n a n g s t of r e a l i s m is t h a t i t loses control over justification.
T h e e v e n t of l a w c a n n o t be r e d u c e d to a p r i n c i p l e . W e h a v e no
reflexive access to t h e event. In C a p u t o ' s words: "The being-obliged does
n o t d e p e n d on t h e principle. The p r i n c i p l e is a d i s t i l l a t i o n , a f t e r t h e fact,

21 M. Heidegger, "Letter on Humanism", supra n.16, at 238.

22 Such groundnorms remain the basis for much modern a n a l y t i c a l
jurisprudence. See H. Kelsen, Reine Rechtslehre 2 Aufl. (Vienna: Deuticke,
Franz Verlag, 1960, 2nd ed.). See also Kelsen's disciple, A. Ross, On Law and
Justice (London & Berkeley: University of California Press, 1959), who is one
of the most problematic figures in legal philosophy, but also one of the hardest
to avoid.
 T h e S i l e n t V o i c e of Law: L e g a l P h i l o s o p h y as L e g a l T h i n k i n g 79

of t h e b e i n g obliged. We do n o t j u d g e t h e s i n g u l a r i n v i r t u e of t h e
p r i n c i p l e , b u t we d r a f t t h e p r i n c i p l e a f t e r t h e fact b y e x c a v a t i n g
s i n g u l a r i t y a n d erecting a relatively hollow schema - - or principle. We do
not r e a l l y apply principles to i n d i v i d u a l cases. We a p p l y i n d i v i d u a l s to
principles", z~
I n legal philosophy, the focus of m e t h o d has become the p a t h w a y for
e x p e r i e n c e as knowledge. W h e n we e n g a g e experience, t h e r e is no
i n d e p e n d e n t method to effect our experience of law, there is only the w a y .
The a u t h o r i t y t h a t is in m e t h o d r e d u c e s legal p h i l o s o p h y to v a l u e
m a t c h i n g , a n d already presupposes its object. T h i n k i n g moves to displace
t h e i s s u e of v a l u e s . T h i n k i n g a n d ethics are t h e s a m e b e c a u s e t h e
c o m m i t m e n t to t h i n k i n g is a d w e l l i n g of h i s t o r i c a l people. As a
consequence, legal t h i n k i n g can only show life as it is lived, as a r e v e l a t i o n
of g e t t i n g i n contact with our life conditions. To show is to let t h e n a t u r a l
g r o u n d (order) of t h i n g s c o n s t i t u t e the a u t h e n t i c g r o u n d of law. To
p a r a p h r a s e a famous f r a g m e n t of A n a x i m a n d e r : E v e r y t h i n g t h a t is, is also
the order of Being. Where Being t h i n k s , the law also t h i n k s .
I n the f r a g m e n t s of A n a x i m a n d e r , d e s t i n y is p r e s e n t e d as the order
a n d chaos of things. The d e s t i n y of t h i n g s is law's b i n d i n g to n o n - l a w .
Dike, the t i t a n i c Goddess, is the one who enforces the d e s t i n e d order. M a n
lives i n the m o r t a l i t y of destiny. The law, as the order of the world, c a n
n e v e r be identical with c o n v e n t i o n a l n o r m s a n d rules. To s p e a k law as
v a l u e or as a n o r m a t i v e system negates d e s t i n y as the source of law.
Dike articulates the way of t h i n g s a n d h u m a n s , t h e i r w a y a n d destiny.
It is this common way, which i n s t a l l s a possible way for us i n the furrows
of language. We call it nomos. 24 T h e m i s , D i k e ' s sister, is earth, the most

23 Caputo, supra n.10, at 37.

24 In early Greek philosophy, the law and existence (the reality of man) are a
unity. Thinking appears as concepts which are both legal and ontological. Man
never lived without an understanding of law in "pure being". In a certain way,
the origin of philosophy emerges together with the development of legal
institutions, the codifying of laws, and the development (formation) of a
conception of justice from something other than customary law. When
Anaximander in his fragment speaks about "the being of the things that gives
the law in contrast with un-law", this cannot be understood as being either
only a legal statement, or an ontological statement. The abstract and general
character of the Being of beings will give a philosophical interpretation of Dike
that will weaken the more everyday legal meaning. On the other hand,
abstract meaning cannot be deduced from a pre-legal horizon as chronological.
Ontology appears in a legal open-laid room. The interesting relation between
law and ontology is stressed in F.M. Cornford, From Religion to Philosophy. A
80 L a w a n d Critique Vol.VIII no.1 [1997]

primordial a n d primitive of all. She is the more a b s t r a c t a n d yet the more

innocent. " T h e m i s is not religion b u t she is the stuff out of which religion
is made". 25 F r o m Themis comes obligare, the social consciousness. M a n is
not the source because all obligation e m a n a t e s from s o m e t h i n g over a n d
beyond man. I n H a r r i s o n ' s words, "The t h i n g g r e a t e r t h a n m a n , t h e
power not h i m s e l f t h a t m a k e s for righteousness, is, i n the m a i n , not the
m y s t e r y of the u n i v e r s e to which as yet he is not awake, b u t the p r e s s u r e
of t h a t u n k n o w n ever i n c u m b e n t force, herd instinct, the social conscience.
The m y s t e r i o u s d o m i n a n t figure is not Physis, b u t Themis."26 The agile
shadow of Themis emerges with Physis. Themis is e a r t h a n d Geist and,
together with Dike, she symbolises legal t h i n k i n g as a path, our w a y to
follow together. Legal t h i n k i n g , in t e r m s of Heidegger, rests with Themis.
Themis g r a n t s physis a n d time. For Themis faith is n o t h i n g other t h a n
w h a t h a p p e n s ; the necessity of d i s p e n s a t i o n a n d the obligation of laws as
expressed u n d e r the n a m e of d e s t i n y Y

Law as Ereignis

The event is the law because it gathers mortals into the appropriateness of
their nature and there holds them. ~
Ereignis (the e v e n t ) allows u s to u n d e r s t a n d B e i n g as t i m e , as
temporality, m The e v e n t exists beyond r e p r e s e n t a t i o n a n d e x p l a n a t i o n .

Study in the Origins of Western Speculations (Harper: New York, 1967), 7, 21

and 54, and G. Vlastos, "Equality and Justice in the early Greek Cosmologies",
Classical Philology 42 (1947), 156-178.
25 J.E. Harrison, Themis: A Study of the Social Origin of Greek Religion (London:
Merlin Press, 1963), 485.
25 Ibid., at 490.
27 See P. Minkkinen, "Right Things: On the Question of Being and Law", Law &
Critique VII/1 (Spring 1996), 81, where Themis is stressed as "an assertion of
Dasein, that is 'in the right".
28 M. Heidegger, On the Way to Language, supra n.4, at 128-129.
29 The word Ereignis is the most important invention of the later Heidegger. The
word is untranslatable. In English there seems to be no better translation
than the "event". See Hofstadter's translation in M. Heidegger, Poetry,
Language, Thought (Harper Books: New York, 1971). Ereignis is a German
pun. Heidegger sketches out the rift of the pun that inscribes a certain
movement of the sign, almost a move of difference: Zeichen-Zeigen-Eigen-
Ereignis. Zeichen-zeigen is the sign versus showing. See M. Heidegger, On the
Way to Language, supra n.3, at 121. In a later work published from
 T h e S i l e n t V o i c e o f Law: L e g a l P h i l o s o p h y as L e g a l T h i n k i n g 81

Its essence is the h a p p e n i n g w i t h o u t a subject. Law as Ereignis is t h e

a p p e a r a n c e of a n action w i t h o u t a principle. Action t u r n s into p r e s e n c i n g
as a n irreducible difference. The act is the u l t i m a t e irreducible presence.
W h e r e a s w e s t e r n m e t a p h y s i c s has posited presence as b e i n g realised i n
the f o r m a t i o n of principles, Ereignis s u m m o n s the tragic c h a r a c t e r of
existence. Law is tragic b e c a u s e we are o v e r w h e l m e d by nomos, the
u n s a y a b l e m o m e n t of the w o r l d i n g of the world. It is tragic b e c a u s e we
cannot justify law by our reason.
Heidegger calls our a t t e n t i o n to the b r i n g i n g - f o r t h t h a t is L a n g u a g e .
To do this, he speaks of Dichtung, the poetic character of presence. I n his
essay "The Thing" Heidegger draws out a s t r i n g of images from m e t a p h o r s
a n d p u n s in which e a r t h a n d sky, gods a n d m o r t a l s come t o g e t h e r i n a
m i r r o r - p l a y a n d r o u n d - d a n c e , u n i t i n g t h e m as the fourfold (das Geviert).
I n this mirror-play the world presences by worlding. ~0 This m i r r o r - p l a y of
the world is the r o u n d - d a n c e of Ereignis i n which e v e r y t h i n g comes
together, belongs together, as its own (Eigen) i n its u n c a n n y dwelling. 31
W h e n l a n g u a g e speaks, the world worlds as a world. I n this r o u n d - d a n c e
the one n e v e r sees itself. As all d i s a p p e a r s into the dance ek-stasis is
reached. We d i s a p p e a r into the w a y - m a k i n g m o v e m e n t s of the event, as
consciousness d i s a p p e a r s into play, as the d a n c e r d i s a p p e a r s i n t o t h e
dance. The p r e s e n c i n g of the world, the event, is the h a p p e n i n g w i t h o u t a
subject. Law as Ereignis is a border experience. It is the experience of the
limit of the u n s p e a k a b l e . 32 Ereignis t r a n s p o r t s us out of the o r d i n a r y a n d
out of ourselves. Dasein can first u n d e r g o the u n c a n n y experience t h a t
t h e r e / s s o m e t h i n g r a t h e r t h a n nothing. This " r a t h e r t h a n n o t h i n g " is t h e
initial condition t h a t r e n d e r s the law possible. Giorgio A g a m b e n calls t h e
experience of the l i m i t as "the experience of being-within a n outside'. He
adds: "This ek-stasis is the gift t h a t s i n g u l a r i t y g a t h e r s from t h e e m p t y

Gesamtausgabe Band 65: Bertrdge zur Philosophie (Veto Ereignis), (1936-38),

Heidegger developed his poetic philosophy from Ereignis as the concept of
truth. In this work Heidegger claims that philosophy has to start from a new
beginning which takes off from pre-Socratic thinking. This is no surprise. In a
sense, all Heidegger's philosophy is a "longing" for a new beginning, as Rtidiger
Safranski has expressed it.
30 M. Heidegger, "The Thing", supr,~ n.30, at 179.
31 Ibid., at 180.
32 J-L. Nancy sees Ereignis as the limit of language: The Inoperative Community,
trans. P. Conner et al. (Minneapolis and Oxford: University of Minnesota
Press, 1991). See the section on "ethics as poetic thinking~' below.
82 L a w a n d C r i t i q u e Vol.VIII no.1 [1997]

h a n d s of h u m a n i t y . "~ This is the gift of divine love. We receive it w h e n

we come to know ourselves outside of ourselves, as we m i g h t w h e n we
e x p e r i e n c e t h e d e a t h of the other. The e v e n t of Ereignis stresses the
s i n g u l a r i t y of the facticity of experience.
The s i n g u l a r occurrence g r a n t s time. To t h i n k is to receive this gift.
To t h i n k the f u n d a m e n t a l of letting-be-of-presence (Anwesenlassen) m u s t
be u n d e r s t o o d from the f u n d a m e n t a l E s gibt Sein (it gives Being) a n d Es
g i b t Zeit, w h e r e time is this Es i n E s gibt S e i n . The law of Ereignis is a n
a t t e m p t to t h i n k this granting, this gift, t h a t is received by m a n i n Es gibt
(it gives). 3~ T h e gift of law is a gift of t i m e a n d Being i n its o r i g i n a l
t e m p o r a l i s a t i o n . The epochal n a t u r e of D a s e i n m e a n s t h a t E s g i b t is
t h o u g h t of as destiny, t h a t sends Being.
Only the work of art allows to give t h a t which initiates time. The gift,
the work, m a k e s time possible. Is the gift? The a n s w e r is no. The gift is a
condition for presence, it is n e v e r given i n its presence. It is only as a gift
u n d e r the condition t h a t i t / s not. The conditions of the gift is e q u i v a l e n t
to its n o n - c o n d i t i o n . Likewise the work of a r t i n Heidegger's t h i n k i n g
c a n n o t be u n d e r s t o o d as r e p r e s e n t i n g or p r o d u c i n g a n y t h i n g ; b u t i n the
work, the t r u t h of the t h i n g comes forth. The gift is not a product b u t the
c o n d i t i o n for a n y product. To give the gift is prior to a n y economical
t r a n s a c t i o n since the giving of the gift is the possibility of time. The gift
i t s e l f c a n n o t be p r e s e n t i n t i m e , i t w i t h d r a w s from t i m e a n d it is
intelligible only as a rift in temporality. The gift is this m o m e n t of the rift
i n time, '~ t h e g r a n t i n g of a u n i q u e event. The g r a n t i n g of the gift is the

33 G. Agamben, The Coming Community, trans. M. Hardt (Minneapolis:

University of Minnesota Press, 1993), 68-69.
34 M. Heidegger, "Letter on Humanism", supra n.16, at 214. See also Heidegger,
On the Way to Language, supra n.3, in the essay "The nature of language", at
88.
35 In his book, Given Time I. Counterfeit Money, trans. P. Kamuf (Chicago :
University of Chicago Press, 1992) Jacques Derrida refers to Baudelaire's tale
La Fausse Monnaie ( Counterfeit Money). Here the narration of an insignificant
event gives access to the condition for any gift, the creation of the event in
another person's life. The narrator and an acquaintance pass a beggar on a
bridge and the friend gives the beggar a big alm, a two-franc-piece. However,
it turns out that the friend only gave the beggar a counterfeit coin, and so it
appears that the friend has moved beyond any economy, and any law, to an
economic paradise where he succeeds in giving without having to pay for it.
Furthermore, he has succeeded in creating an event in the beggar's life, since
because of the counterfeit money-piece, he can either have the opportunity of
exchanging the piece for several real coins or he can get arrested as a
 T h e Silent V o i c e o f Law: L e g a l P h i l o s o p h y as L e g a l T h i n k i n g 83

absolute singular, t h a t cannot be r e p e a t e d a n d t h e r e f o r e n e v e r e n t e r s t h e

c i r c u l a r economy. T h e a n - a r c h i c u n f o l d i n g of law is t h e o c c u r r e n c e o f
s i n g u l a r i t y as time. It is to exist w i t h o u t existence.
B u t w h a t is the source of the s i n g u l a r m o m e n t of law, of t h e gift? It is
t h e e v e n t as our only reality. "The occurrence is t h e e v e n t ... an d n o t h i n g
beyond. "3e In so h a p p e n i n g , t h e la w h a p p e n s as t h i s law: t h e o p e n i n g o f
this world, t h e gift of this friendship, th e h a n d i n g over of this legacy, t h e
d e s t i n a t i o n of this w a y of s a y i n g w h ic h we call so poorly o u r l a n g u a g e . To
this law, the law calls m a n to belong in obedience, an d t h u s allows h i m to
s u r r e n d e r to his own possibility.
In h i s t o r y s o m e t h i n g is still a b o u t to a p p e a r to us. A rift of
t e m p o r a l i t y is c o m i n g to be. This t h r u s t , this n e w event, only a p p e a r s
t h r o u g h t h e c h a n g i n g s t a t u s of l a n g u a g e . This is w h y we h a v e to a s k h o w
l a n g u a g e appears.

The S a y i n g o f L a w

To see law as Ereignis is to experience language as event. 37

If the nature of language is its occurrence, we live in the happening of this

e v e n t . 3s

Th e u n i t y of m u l t i p l i c i t y lies in t h e m o u t h of l a n g u a g e . Language
s p e a k s as a calling. To h e a r this call is to u n d e r g o a n e x p e r i e n c e w i t h
language. W h e n we s p e a k we a r e a l w a y s spoken. 39 W h e n we t h i n k we

counterfeiter. This giving is never present in any economic or legal rationality.

It is the giving of time.
36 M. Heidegger, Unterwegs zur Sprache, supra a.3, at 247 (my translation).
37 On the description of Language as event, see particularly two essays: "The
nature of language" and "The way to language", in On the Way to Language,
supra n.3. See also M. Heidegger, Identitcit undDifferenz (Pft~Ilingen: Neske,
1990), 24-27.
38 M. Heidegger, Identitttt und Differenz, ibid., at 26 (my translation).
39 In "What is Called Thinking?" Heidegger writes: "If we may talk here of
playing games at all, it is not we who play with words; rather, the essence of
language plays with us, not only in this case, not only now, but long since and
always. For language plays with our speech - - it likes to let our speech drift
away into the more obvious meaning of words. It is as though human beings
had to make an effort to live properly with language. It is as though such a
dwelling were especially prone to succumb to the danger of commonness ...
This floundering commonness is part of the high and dangerous game and
84 L a w a n d C r i t i q u e Vol.VIII no.1 [1997]

a r e a l r e a d y b e i n g thought. 4~ I t is in this, as M e r l e a u - P o n t y tells us, t h a t

" m e a n i n g is forced on us". 41 The word lives i n s i d e t h e object a n d t h e w o r d
is c o n s t i t u t i n g our world b e c a u s e i t dwells in t h e object. This d w e l l i n g
r e v e a l s t h e i m m e d i a t e u n i t y b e t w e e n k n o w l e d g e a n d being, t h e p r e s e n c e
of existence. We do not, as t h e science of semiotics would h a v e us believe,
find o u r s e l v e s s t a g g e r e d , p a r a l y s e d , or t h r i l l e d b y t h e m a t e r i a l i t y or t h e
i n f i n i t e a m b i g u i t y of t h e l i n g u i s t i c m e d i u m . T h e w o n d r o u s t h i n g a b o u t
l a n g u a g e is t h a t it p r o m o t e s its own oblivion, a n d t h i s is t r u e in r e a d i n g
a n d w r i t i n g as it is in h e a r i n g or s p e a k i n g . "My eyes follow t h e lines on
t h e p a p e r , a n d from t h e m o m e n t I a m c a u g h t up in t h e i r m e a n i n g , I lose
s i g h t of them". 42 The t h i n k i n g of ontology does not focus on t h e sign or
signifier; i n s t e a d signs a r e seen i m m e d i a t e l y as m e a n i n g . It is only w h e n
t h e r e is a b r e a k d o w n in our s h a r e d m e a n i n g s t h a t we focus on t h e sign.
I n t h i s b r e a k d o w n , h u m a n b e i n g s b e c o m e subjects. O n l y t h e l a c k of
d i s t a n c e c r e a t e s a legal subject.
W e do not recognise o u r s e l v e s in l a n g u a g e , b e c a u s e t h a t is w h a t i t
m e a n s to b e l o n g to l a n g u a g e . W e a r e o u r b o d y a n d t h e b o d y is t h e
p a r a d i g m of all form. To t a k e l a n g u a g e s e r i o u s l y is to see its p a r a d o x :
w h a t c a n n o t be said can only be shown, b u t w i t h o u t l a n g u a g e n o t h i n g can
be shown. L a n g u a g e b r i n g s us e v e r y t h i n g r e a l b u t t h i s "bringing" is a
h e a r i n g of t h e silent h u r r i c a n e in t h e m i d s t of l a n g u a g e . We h e a r t h e p l a y
of t h e world, t h e r o a r in t h e forest, t h e r a i n i n g of t h e r a i n , a r e m o t e b r e a t h
in m y own chest, a d i s t a n t t h o u g h t in m y own h e a d . T h e s o u n d i n g of
Ereignis is the law as t h e coming-into-the-nearness-of-distance. 43
Since l a n g u a g e is n e v e r our own b u t a l w a y s comes to us as e v e n t s we
i n h a b i t , as a n e x p r e s s i o n of a b a c k g r o u n d w e s p e a k in, legal discourse
comes as a "saying". L e g a l discourse is a microcosm of t h e p o s s i b i l i t y of
l a n g u a g e a n d r e a l i t y . I t is t h e e v e n t " t h a t s p e a k s " a n d t h e e v e n t only

gamble in which, by the essence of language, we are the stakes", supra n.16, at
365.
40 Perception cannot in itself constitute experience. Language penetrates all,
even the senses, as stressed by the Danish philosopher, Ole Fogh Kirkeby,
Selvnodighedens filosofi [in English The Philosophy of Selfcessity] (Aarhus:
Modtryk, 1996).
41 M. Merleau-Ponty, Phenomenology of Perception, trans. C. Smith (London:
Routledge and Kegan Paul, 1962), Introduction, xx/.
42 Ibid., at 400.
43 M. Heidegger, On the Way to Language. supra n.3, at 123.
 T h e S i l e n t V o i c e o f Law: L e g a l P h i l o s o p h y as L e g a l T h i n k i n g 85

exists as such because l a n g u a g e m a k e s it visible to us in t h a t s p e a k i n g . 44

I n the end, l a n g u a g e can only show us the real i n this saying. " S a y i n g is
the mode i n which Ereignis s p e a k s ' . 45 W h a t t h e n is the saying of law?
W h a t is it to say? We all "know" t h a t it is m a n who speaks. W h e n he
speaks, it is a l r e a d y possible t h a t he is to be understood. It is as if h e
r e m a i n s i n a n already c o n s t i t u t e d house of language. I n speech, t h e r e is
a l i s t e n i n g to w h a t l a n g u a g e "has to say". Does t h i s m e a n t h a t it is
l a n g u a g e t h a t speaks? To a n s w e r this question, we m u s t consider t h a t it
is not t h a t h u m a n beings speak, b u t r a t h e r t h a t something is s a i d . ~
To say s o m e t h i n g a n d to speak is not the same. I t is e a s y to s p e a k
w i t h o u t saying a n y t h i n g . It is also possible to say s o m e t h i n g while b e i n g
silent. The etymology of to say is to s h o w , to let s o m e t h i n g a p p e a r , show
itself, or let be seen. The e v e n t of l a n g u a g e is showing. 47 We dwell i n
l a n g u a g e i n t h a t we l i s t e n to it. H e a r i n g a n d k e e p i n g s i l e n t is p a r t of

44 Here I am inspired by Ole Fogh Kirkeby, supra n.41. For a similar treatment
of language, see G. Agamben, Language and Death : The place of negativity,
trans. K.E. Pinkus with M, Hardt (Minneapolis and Oxford: University of
Minnesota Press, 1991), 197: "We can only think, in language, because
language is and yet is not our voice." The suspension of the voice in language
constitutes the problem in philosophy and the problem for legal thinking.
45 M. Heidegger, Unterwegs zur Sprache, supra n.3, at 266; On the Way to
Language, supra n.3, at 135. See also Heidegger, "Letter on Humanism",
supra n.16, at 241: "The fittingness of saying of Being, as of the destiny of
truth, is the first law of thinking." And finally the letter ends with separating
philosophy from thinking: "The thinking that is to come is no longer
philosophy, because it thinks more original than m e t a p h y s i c s - a name
identical to metaphysics .... Thinking gathers language into simple saying. In
this way language is the language of Being, as clouds are the clouds of the sky.
With its saying, thinking lays inconspicuous in the furrows in language. They
are still more inconspicuous than the furrows that the farmer, slow of step,
draws through the field", supra n.16, at 242.
46 P. Nonet. "In Praise of Callicles", Iowa Law Review (1989), 807-813, muses
about the nature of dialogue and rhetoric and their fundamental importance
for law. At 812-13 Nonet says: "True speech does not convey ideas, but lets a
matter of concern reveal itself in its truth. Accordingly, true listening consists
not in seeking to grasp what the speaker has in mind, but in attending to the
matter of which the spoken word speaks. True dialogue is not found in
communication, pure or impure, mediated or unmediated. Its essence rather
lies in shared openness to being, in 'a thinking-together through the self-
manifestation of the thing of concern'."
47 Unterwegs zur Sprache , supra n.3 at 253. On the Way to Language, supra n.3,
at 122.
86 L a w a n d Critique VoI.VIII no.1 [1997]

d i s c o u r s e . To c u l t i v a t e t h e l i s t e n i n g of d i s c o u r s e gives j u r i s p r u d e n c e a
l i m i t for w h a t can only be shown, as
Our way is a symbol of t h i n k i n g and of law. The s a y i n g of l a w calls
m a n to his f u n d a m e n t a l possibilities. The s a y i n g of l a w is t h e c l e a r i n g
light. L a w is invisible a n d u n s a y a b l e . L a w can only be shown. I n l e g a l
p h i l o s o p h y w e c o n c e r n o u r s e l v e s w i t h t h e s e t t l i n g of t h e n o r m a t i v e
c o n t e n t in t h e a u t h o r i t a t i v e e x p r e s s i o n of logos (the word, t h e law). I n
l e g a l t h i n k i n g the saying of law i n s t i t u t e s law as t h e l i m i t of a p o s s i b l e
r e a l i t y a n d not as a scientific object. The s a y i n g of law is t h e o p e n i n g to
t h a t e x i s t e n c e w h i c h is t h e condition for a n y legal content. L e g a l r u l e s
a n d acts a r e a m a n i f e s t a t i o n of s a y i n g w h a t can only be shown. In t h e
end, l a n g u a g e only shows us t h e r e a l by t h i s s a y i n g a n d w h a t is s a i d is
r e a l i t y . To s p e a k is to s h a r e (Mit-teilen), a n d in t h i s s h a r i n g a s e n s e of
c o m m u n i t y a r i s e s w h i c h is h i d d e n i n t h e p r e s e n c e of s p e e c h .
U n d e r s t a n d i n g is rooted in Mitsein. M a n is, from t h e beginning, s i t u a t e d
w i t h o t h e r s - - he is a p r i m o r d i a l f e a t u r e of l a n g u a g e , t h o u g h t a n d feeling.
The s p e a k i n g of law is n e v e r t h e p r o d u c t of a n e m p i r i c a l will l a y i n g
o p e n social facts. L a n g u a g e does n o t fix a r e a l i t y . I n s t e a d p r e s e n c e
s p e a k s facticity. A n y saying t h a t s p e a k s says w h a t h a s a l r e a d y b e e n said.
Law, as a world, i n s t a l l s t h e m i r r o r - d a n c e of j u s t i c e a n d injustice. H e r e
we see injustice not as a n e g a t i o n of a positive, b u t r a t h e r j u s t i c e s e t t l e d in
a n a b s e n c e of m e a n i n g (or world). " J u s t i c e is i t s e l f in i t s m o d e of
w i t h d r a w a l or in its a b s e n t presence", as H e i d e g g e r w o u l d say. r T h e
s a y i n g of law opens up for a call of law, a call not from m a n b u t from t h e
l i m i t of r e a l i t y , t h e l i m i t to infinite possibilities. This call h a p p e n s in t h e
w o r k of law.

The Work of Law

Law, as Ereignis, shows us w h a t is a t s t a k e in t h e w o r k of law.

Ereignis a n d t h e d i s p e n s a t i o n of law, s h o w s us t h a t (legal) n o r m a t i v i t y
always lies before us as a possible way to be. H e i d e g g e r ' s t r e a t m e n t of t h e
w o r k of a r t g i v e s us a m e t a p h o r i c a l b a s i s to u n d e r s t a n d l a w ' s

48 Supra n.34, at 54.5, "In my way of speaking we must presuppose the

immediate being-there of a non-linguistic element which language cannot say
but only show."
49 F. Dallmayr, "Heidegger On Ethics and Justice", in Tralzsitions in Continental
Philosophy. ed. A.B. Dallery et al. (Albany: State University of New York
Press, 1994), 203.
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u n f a t h o m a b l e i n s t i t u t i n g of its discourse. The character of the work of a r t

with its u n d i s g u i s e d m o m e n t i n its g i v e n s t r u c t u r e a n d its h i d i n g face
with r e g a r d to its m e a n i n g , r e a p p e a r s i n the opposition b e t w e e n law as
i n s t i t u t i o n a n d as "silent voice".
T h e work of a r t is a m a g i c a l r e a l m , a vehicle for T r u t h , w h i c h
t r a n s m i t s the sacred as memory, i f we live in the fall of l a n g u a g e , t h e
world of predicates, how can we ever p r e p a r e for the call of law? This is
the call of conscience t h a t c a n n o t be h e a r d i n the noise of e v e r y d a y idle
talk. A s a n c t u a r y m u s t be created w i t h i n which the call of conscience c a n
be heard. This is s h o w n in the u n i t y of the work of art, in the w r i t i n g s of
both Heidegger a n d W a l t e r B e n j a m i n , as t h e u n i t y of the rite a n d t h e
sacred precinct. This clearing m a y be found in the work of a work of art.
In the work of art s o m e t h i n g is b r o u g h t together with the t h i n g t h a t is
made. Since l a n g u a g e is a n e v e n t the t r u t h of Being m u s t h a p p e n i n t h e
work of art. I n legal t h i n k i n g art, history, world, a n d t r u t h m e e t i n a
unity:
Whenever art h a p p e n s - that is, whenever there is a b e g i n n i n g - a thrust
enters history, history either begins or starts over again. History means here
not a sequence in time of events of whatever sort, however important. History
is the transporting of a people into its appointed task as entrance into that
people's endowment,s~

The e v e n t of law is a u n i q u e historical m o m e n t . The m o m e n t of t i m e

b r e a k s free as a rift of temporality. ~l The powerful i n t e r r u p t i o n s i n the
work of a r t is the condition for n e w m e a n i n g to arise. To say the law is to
show how it appears i n l a n g u a g e as a work of art. The work of a r t is t h e
origin of philosophy a n d the "origin i t s e l f b e c a u s e i n n a m i n g B e i n g it
draws Being out of silence into the o p e n i n g of l a n g u a g e from w h e r e origin
arise. "~2 O u r struggle with t r a d i t i o n a n d n o r m a t i v i t y is a struggle to h e a r

50 M. Heidegger, "Der Ursprung des Kunstwerkes", in Holzwege (Frankfurt am

Main: Klostermann, 1963, Vierte Auflage), 64.
51 In his essay, "Critique of Violence", Walter Benjamin sees justice as a unique
historical event. Justice becomes a tragic moment because it maintains our
attunement and finitude in the singularity of the event. For Benjamin it is the
unfathomable event that grants the possibility of new law. The legal
hermeneutic of Benjamin is tragic and poetic because language forms the limit
of the legitimacy of discourse and understanding. See W. Benjamin, "Critique
of Violence", in Reflections, trans. E. Jephcott (New York: Schocken Books,
1986).
52 M. Heidegger: Erliiuterungen zu H6lderlin's Dichtung (Frankfurt am Main:
Vittorio Klostermann, 1981), 41 (my translation).
88 L a w a n d C r i t i q u e Vol.VIII no.1 [1997]

t h e world as it is h a n d e d over to us. The t h i n g s which are h a n d e d over i n

a n d by this world are both p r e s e n t a n d absent, coming a n d going: "By the
o p e n i n g u p of a world, all t h i n g s gain their l i n g e r i n g a n d h a s t e n i n g , t h e i r
r e m o t e n e s s a n d n e a r n e s s , their scope a n d limits. "53
Legal t h i n k i n g lets t r u t h h a p p e n b e c a u s e it is n o t a n experience of
s o m e t h i n g b u t a n experience of experience. We recognise the real of law
as we r e c o g n i s e t h e r e a l of w h a t h a p p e n s as art. I n legal t h i n k i n g
s o m e t h i n g a p p e a r s t h a t was not, or t h a t is not, a p a r t of our everyday life,
n a m e l y the i n t e n s e a r t i c u l a t i o n of our r e l a t i o n to t h e e x t e r n a l world. I n
art, the t r u t h of a b e i n g h a s set itself to work so powerfully t h a t it opens a
world for m a n . 54 It is i n the s t a n d i n g of the work t h a t law's o p e n i n g
comes to be. The p o s i t i n g a n d the p l a c i n g of l a w is n o t a n i d e a or a
cognitive act, b u t a r e m a r k a b l e radiance. I n the l i g h t i n g s p l e n d o u r of the
work glows a world:
To e-rect means to open the right in the sense of a guiding measure, a form in
which what belongs to the nature of Being gives guidance, w
The e r e c t i n g i n law is its o p e n i n g of world. The d i g n i t y of this e-rection
(er-reichen) is t h e source of t h e rule of law. To p o i n t the w a y for the
d e s t i n y of m a n is the work t h a t guides. O n l y b e c a u s e the law is a n d m u s t
be e r e c t e d c a n it also rule, t h a t is, direct a n d correct i n t h e s e n s e of
p o i n t i n g a n d r i g h t i n g , the p a t h of m a n . As this g u i d i n g of m a n on the
p a t h of his d e s t i n y , the law is i n its work, d a s Gesetz, the f o u n d i n g ,
S t i f t u n g , of right, das Recht.
I n Heidegger's example, the gods are b e i n g obeyed i n the s t a n d i n g of
t h e G r e e k temple. The gods approach m a n a n d r a d i a t e t h e i r presence i n
the temple. The erection of the work obeys the law, i n t h e coming forth of
the l i g h t i n g o f p h y s i s . ~ God offers h i m s e l f i n concealed presence.
The a p p e a r a n c e of a world for people is t h e i r law, it is the law. I n the
work of art, Heidegger says, it is the thing t h a t a p p e a r s as a n occurrence,
a h a p p e n i n g , a n d this m e a n s t h a t it lets a world come forth. 57 This world
w a s a l r e a d y t h e r e from the b e g i n n i n g b u t it w a s w i t h d r a w n from t h e

53 Supra n.51, at 34.

54 In Van Gogh's picture of peasant shoes we see a world in the shoes and yet the
work maintains the earth, "From the dark opening of the worn insides of the
shoes the toilsome tread of the worker stares forth, etc .... In the shoes vibrates
the silent call of the earth.." Ibid., at 33-34.
55 Unterwegs zur Sprache , supra n.3, at 33.
56 Supra n.51 at37. "The Origin of the Work of Art", supra n.31, at42.
57 Supra n.31, at 177.
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c l e a r i n g l i g h t . I n t h e r a d i a n c e o f l a w a w o r l d is h a p p e n i n g . The
h a p p e n i n g a p p e a r s in t h e c h a n g i n g s t a t u s of l a n g u a g e t h a t t e l l s us t h a t
o u r world as such is a b o u t to change. 5s The c h a r a c t e r a n d "logic" o f
l a n g u a g e r e q u i r e s us to see l a n g u a g e as a n event. The c o n s t i t u t i o n o f
l a n g u a g e is a r e s u l t of prehistory. This is o u r history.

Ethics as Poetic-Thinking

It is said t h a t it w a s H e i d e g g e r ' s g r e a t e s t sorrow not to h a v e become a

poet. P o e t r y is love. P r o p e r t h i n k i n g m a y well be t h e s a y i n g of love. I f
t h i s is so, t h e n we s h a l l come to see t h a t p r o p e r or c o m m i t t e d t h i n k i n g is
also w h a t it would m e a n to be ethical. I n his l a t e r t h o u g h t s , H e i d e g g e r
s a w in l a n g u a g e a n i n h e r e n t l y e t h i c a l d i m e n s i o n . F o r H e i d e g g e r ,
t h i n k i n g , to be m i n d f u l of its own n e a r n e s s to t h e p h e n o m e n a l , m u s t
a l r e a d y be an ethical stance. Does t h i s m a r k the n e c e s s a r y r e s p e c t for t h e
Being of the Other? W h a t is t h e r e l a t i o n s h i p b e t w e e n B e i n g a n d ethics?
H e i d e g g e r invites us to t h e n e i g h b o u r h o o d of p o e t r y a n d t h i n k i n g in a
w a y t h a t is m i n d f u l to t h e o t h e r n e s s of o t h e r beings. The h a p p e n i n g of
t h e w o r l d is e s s e n t i a l l y linguistic: t h e e v e n t is t h e s a y i n g of o u r w o r l d .
The essence of m a n is to be t h e s p e a k e r so as to voice t h e s a y i n g of Being.
F o r H e i d e g g e r , ethics a n d t h e r e s p e c t for t h e o t h e r is found in t h e
u n s a i d voice which is a l r e a d y a voice of others. By t h i n k i n g l a n g u a g e
a g a i n s t itself, we m a n a g e to a p p r o a c h t h e o t h e r not by t h i n k i n g t h e o t h e r
as difference (Levinas) b u t r a t h e r as n e a r n e s s t h a t is a l e t t i n g t h e o t h e r be
in a m a n n e r t h a t p r e s e r v e s its a l t e r i t y . 59 In this poetic t h i n k i n g we find
ethics a n d law not in p r o p o s i t i o n s a n d d e s c r i p t i o n s of n o r m a t i v e s y s t e m s
b u t in t h e voice of our friend. This o t h e r t h i n k i n g is t h e n e i g h b o u r h o o d of
t h o u g h t d e f i n e d a s " d w e l l i n g in n e a r n e s s " . ~~ P o e t i c t h i n k i n g t h i n k s
a g a i n s t i t s e l f b y m a i n t a i n i n g t h e inflection of l a n g u a g e . This " w o r k i n g
a g a i n s t " is t h e d e l i v e r i n g of silence, t h e b r e a t h of e m p t y s p a c e s in poetic
t h i n k i n g . H e i d e g g e r calls it a s h o w i n g as s a y i n g or a s t h e s o u n d l e s s word.
Z i a r e k tells us t h a t t h e h e r m e n e u t i c s of n e a r n e s s is "to b r i n g l a n g u a g e

58 Heidegger says that in setting up a world the work causes the word to speak:
supra n.51, at 35; "The Origin of the Work of Art", supra n.31, at 46.
59 A valuable contribution to this line of thinking is found in K. Ziarek, Iuflected
Language. T o w a r d a hermeneutic o f nearness. Heidegger, Levinas, Stevens,
Celan (Albany: State University of New York Press, 1994). My account is
indebted to this work.
60 "On the Way to Language", supra n.3, at 257.
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close to w h a t is other, as n e a r as words will allow it, so the o t h e r n e s s can

show its f o r e i g n n e s s a n d s t r a n g e n e s s " . 61 It " r e n d e r s l a n g u a g e more
a t t e n t i v e to its own proximity, otherness a n d its figuration". ~ N e a r n e s s is
a "language p h e n o m e n o n and a powerful re-figuration of otherness. "ea
T h i n k i n g is to let be a n d t h u s "respect" o t h e r n e s s . It is to t h i n k
o t h e r n e s s as n e a r n e s s r a t h e r t h a n difference. We can t h i n k the other by
coming n e a r i n a w a y t h a t lets the other be a n d preserves h e r alterity.
The n e a r n e s s of l e t t i n g be is w h a t Ziarek calls t h e "ethicity of language".
This ethicity of l a n g u a g e is the condition for facing the other. It is the
e x t r e m e n e a r n e s s t h a t allows difference to unfold, e~
N e a r n e s s is the event. N e a r n e s s is, Heidegger says, the m o v e m e n t of
t h e face to face e n c o u n t e r of the world's fourfold. 65 N e a r n e s s as m o v e m e n t
r e s t s i n saying. I n Heidegger's fourfold mortals, gods, e a r t h a n d sky are
n e a r each other a n d always on the w a y to t h e i r "own". "In a n analogous
way, h u m a n s a n d Being are in the process of c o n s t a n t p a s s i n g into each
other; t h e y are c o n t i n u o u s l y coming m u t u a l l y into t h e i r own, a n d it is this
c o m i n g , t h i s a p p r o a c h i n g one's i d e n t i t y , w h i c h i n t e r e s t s H e i d e g g e r
most. "66 I d e n t i f y i n g oneself is t h e n e a r i n g of the other. N e a r n e s s is the
play of coming-into-distance of Being. It is this w i t h d r a w a l of Being in the
e v e n t , t h a t i d e n t i f i e s t h i n k i n g as the t h i n k i n g of w i t h d r a w a l of veiled
alterity. 67
Poetic t h i n k i n g i n t i m a t e s presence - - the w i t h d r a w a l of B e i n g - - by
l e a v i n g a rift, a space, w i t h i n language. This i n t e r r u p t i o n of the u n b r o k e n
c o n t i n u i t y of l a n g u a g e is t h e c o n d i t i o n of p o e t r y i n C e l a n , S t e v e n s ,
HSlderlin a n d the writings of Beckett. W h e n the u n s a i d traverses into the
s o u n d i n g word, t h i n k i n g unfolds into Being, a n e a r n e s s t h a t m o t i v a t e s
a n d s t r u c t u r e s the l a n g u a g e - e v e n t . The b r e a t h of the i n t e r r u p t i o n is the
b r e a k - t h r o u g h to the ethical. David F a r r e l l Krell speaks of the r h y t h m of

61 Supra n.60, at 10.

62 Ibid., at 5.
63 Ibid., at 60.
64 This essay aims to show that respect for others comes from a poetic thinking
that listens to the soundless saying. There is a "chiasmic otherness that
influences and inflects language: the enigmatic character of giving in Ereignis
and the entraced ethicity of language, its exposition to the other." Supra n.60,
at 102.
65 "On the Way to Language", supra n.3, at 108.
66 Supra n.60, at 89.
67 Ibid., at 92.
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l a n g u a g e as a n i m a t i n g our t e m p o r a l world. "Rhythm, (the I o n i a n form) ...

is w h a t enjoins t h e g e t t i n g u n d e r w a y ( B e - w i i g u n g ) of d a n c e a n d song,
t h u s l e t t i n g t h e s e r e s t in t h e m s e l v e s . R h y t h m finds repose". 68 T h e w a v e
of l a n g u a g e allows t h e m o v e m e n t in speech to flow b a c k to its source, t h e
voice of f r i e n d s h i p is a l w a y s p r o t e c t e d . T h e p o e t r y of C e l a n does n o t
a t t e m p t to r e p r e s e n t this r e l a t i o n to m y friend or the s t r a n g e r "but r a t h e r
h a p p e n s or t a k e s p l a c e as t h i s i n t e r r u p t e d r e l a t i o n , a n a d d r e s s to t h e
other". ~ I f t h i n k i n g is l i s t e n i n g to t h e s a y i n g of l a n g u a g e , poetic t h i n k i n g
gives rise to this h e a r i n g others, m y friend, t h e i m m e d i a t e s t r a n g e r . Since
t h e e v e n t (Ereignis) is t h e l i m i t of l a n g u a g e , t h e call of l a w is t h e l i m i t -
e x p e r i e n c e of l a n g u a g e , t h e o t h e r u t t e r a n c e of l a n g u a g e . Silence i m p e l s
our s p e e c h into a d i f f e r e n t form of u t t e r a n c e , a t a f u r t h e r r e m o v e f r o m
s p o k e n l a n g u a g e . H o w e v e r , t h i s silence r e f e r s to a n u n s p o k e n level o f
l a n g u a g e , t h e o p e n n e s s a n d n e a r n e s s of t h e other. The e t h i c a l d i m e n s i o n
lies in t h e s h a d o w y a l t e r i t y of l a n g u a g e . L e g a l t h i n k i n g is to l e t
s i n g u l a r i t y be h e a r d in a sober c r y s t a l l i n e voice.
The l a w is invisible a n d u n s a y a b l e a n d m u s t r e m a i n , silent. A n d y e t
it speaks. The s p e a k i n g of law is precisely p r e s e n t w h e n it r e m a i n s silent.
Silence s p e a k s , it calls to be h e a r d . O n l y silence can b r i n g forth o b e d i e n c e
to law. To obey t h e l a w is to l i s t e n to t h e call of law. This call we c a n o n l y
h e a r i f it lets i t s e l f be h e a r d , The q u e s t i o n a b o u t how t h e u n s a y a b l e l a w
can be h e a r d goes to t h e v e r y h e a r t of ethics a n d law. T h e idle t a l k of
ethics a n d l e g a l p h i l o s o p h y r e f u s e s to h e a r t h e call. I n his only n o t e on
Heidegger, W i t t g e n s t e i n h e a r d this s i l e n t call:
All we want to say can a priori only be nonsense. Nevertheless we run against
the limits of language .... This running against the limits of language is
ethics .7o

A n y s p e a k i n g t h a t t r i e s to s a y t h e u n s a y a b l e d e g r a d e s i t s e l f to idle t a l k .
F o r H e i d e g g e r t h e call of silence is h e a r d like t h e r i n g i n g of a bell (Geldut
der Stille). 71 T h e call of l a w is t h e d i v i n e m a n i f e s t a t i o n in m a n of
m a n k i n d itself. 72 The call from "the Other" is the l i m i t of r e a l i t y . W h e n

68 D.F. Krell, Lunar Voices: Of Tragedy, Poetry, Fiction, and Thought (Chicago
and London: University of Chicago Press, 1995), 60.
69 Supra n.60, at 179.
70 Wittgenstein und der Wiener Kreis. Werkausgabe Band 3. Gespr~iche,
ausgezeichnet von F r i e d r i c h W a i s m a n n (Suhrkamp: Taschenbuch
Wissenschaft, Erste Auflage, 1984), 68-69.
71 "On the Way to Language", supra n.3, at 27, 242.
72 Ari Hirvonen has named this call (Ruf), the call of agape, the Greek word for
92 L a w a n d Critique Vol.VIII no.1 [1997]

l a w comes face to face w i t h t h e other, t h e p e r s o n as refugee, it h i t s a l i m i t

b e c a u s e o u r s p e a k i n g no l o n g e r accepts t h a t t h e w o r l d is. How can we
give a n d s h a r e love if we a r e d r i v e n b y a l a n g u a g e t h a t is a l r e a d y dead, a
l a n g u a g e t h a t d e m a n d s r e a s o n to t h e v e r y e n d ? L a w only affirms t h e
l i m i t s of l a n g u a g e w h e n it e m b r a c e s d e a t h a n d t h e Other. This m e e t i n g
of ethics a t t h e l i m i t of t h e world m e a n s t h a t good will c h a n g e s only t h e
l i m i t a n d n o t t h e facts of t h e world. J u s t i c e a n d l a w a r e a n i m m a n e n t
b o r d e r experience. Legal t h i n k i n g i l l u m i n a t e s t h e i m m a n e n t space of law,
i t o r g a n i s e s a silence, a n a n o n y m o u s face. T h e i m m a n e n c e of l e g a l
t h i n k i n g m a k e s visible a p r e - t h e o r e t i c a l c o n c e r n close to law 73 a n d gives
b a c k t h e b o u n d l e s s r e s e r v o i r of legal l e g i t i m a c y . This tragic spell of law is
given its s t r e n g t h in poetic thinking.
P o e t i c t h i n k i n g r e a c h e s t h e n e a r n e s s in i t s a t t e n t i v e n e s s to t h e
u n s a y a b l e s o u n d in l a n g u a g e . W a l l a c e S t e v e n s (the l a w y e r from N e w
H a v e n ) r e f e r s to o t h e r n e s s as "a p o e m t h a t n e v e r r e a c h e s w o r d s ' . 74 The
n e a r n e s s of t h e o t h e r b e i n g in t h e w o r k of R o b e r t Musil is posed as a
q u e s t i o n of r e a l i t y , which is a b o u t language a n d its possibility. Reality is
p l a c e d in t h e space of n a r r a t i v e t h a t l a n g u a g e c a n create. Musil calls t h i s
t h e " u n w r i t t e n p o e m of p o t e n t i a l m a n " , t h e q u i n t e s s e n c e of h i s
p o s s i b i l i t i e s a n d of his existence, a p o e m w h i c h in t h i s crisis "confronts
m a n as r e c o r d e d fact, as reality, as character". 7~ T h e call of o u r f r i e n d is
h e a r d as a n u n w r i t t e n poem.

L a w as Friendship

B e h i n d H e i d e g g e r ' s e t h i c s lies t h e s i g n i f i c a n c e t h a t l a n g u a g e a n d
t h i n k i n g h a v e for f r i e n d s h i p a n d l i s t e n i n g to others. I n his Erli~uterungen
z u H S l d e r l i n s D i c h t u n g , H e i d e g g e r u n f o l d s a l i s t e n i n g t h i n k i n g as a

love and the presupposition for our being together in community and a possible
justice. See A. Hirvonen, "Civitas Peregrina: Augustine and the possibility of
non-violent community", International Journal for the Semiotics of Law
VIII/24 (1995), 263.
73 G. Deleuze and F. Guattari, What is philosophy? trans. G. Burchell and H.
Tomlinson (London, New York: Verso, 1994), 41. The plane of immanence is a
desert populated by legal concepts. The plane of immanence is the image of
thought for law, ibid. at 37.
74 Supra n.60, at 104.
75 R. Musil, The Man without Qualities, trans. S. Wilkins (New York: Knopf,
1995), ch.62, at 270.
 T h e S i l e n t V o i c e o f Law: L e g a l P h i l o s o p h y as L e g a l T h i n k i n g 93

"conversation w i t h friends". 7~ The figure in which t r u t h can be t h o u g h t b y

t h i n k i n g is f r i e n d s h i p . T h e t r u t h of b e i n g is a n i m p e r s o n a l h a p p e n i n g
t h a t only occurs for others. 77 T h i n k i n g is friendship because we come n e a r
t h e t r u t h of Being in f r i e n d s h i p . T h e s a y i n g of t h e e v e n t is f r i e n d s h i p .
Law as E r e i g n i s is friendship. I f f r i e n d s h i p is the essence of law, i t is also
a d e s t r u c t i o n of t h e concept of law. I t is a move from legal p h i l o s o p h y to
legal thinking.
N e a r n e s s d e m a n d s t h e a t t e n t i v e n e s s t h a t beings g r a n t to one a n o t h e r
so t h a t t h e y can r e m a i n t h e m s e l v e s . To recognise a friend or a s t r a n g e r is
p a r t of self-identification. L a w as f r i e n d s h i p is t h e w i t h d r a w a l of B e i n g in
t h e event. We w a n t t h e b e s t for a f r i e n d because a friend is a n o t h e r self.
This is w h a t A r i s t o t l e h a s a l r e a d y told us in his t r e a t i s e on f r i e n d s h i p . 7s
F r i e n d s h i p is the s h a r i n g of words, t h o u g h t s a n d feelings. F r i e n d s h i p is a
w a y of living t o g e t h e r t h a t belongs to m a n . I t is this n e c e s s i t y a t t a c h e d to
history, l a n g u a g e a n d t h e other, t h a t m a k e s c o m m u n i t y , politics a n d l a w
possible. True f r i e n d s h i p r e s t s in itself, is good in itself. O n l y b y l e t t i n g
t h e f r i e n d be can I t r e a t h i m as a n o t h e r person. This l e t t i n g be is t h e
h e a r t of t h i n k i n g b e c a u s e l i s t e n i n g is infused with the b r e a t h of m y friend,
t h e furrow of l a n g u a g e , w h i c h l e a v e s t h e friend a n d t h e o t h e r u n n a m e d
a n d does not s u b j e c t t h e m to t h e violence of c a t e g o r i s a t i o n . T h i n k i n g is
c a r i n g for the friend as he is, l e t t i n g h i m be in his otherness.
F r i e n d s h i p c o n s t i t u t e s obligations; in f r i e n d s h i p we listen. I t s t a n d s
in opposition to a r r o g a n t n o r m a l - r a t i o n a l i t y t h a t d o m i n a t e s i n s t r u m e n t a l
r e a s o n . F r i e n d s h i p gives access to a s i l e n t voice in c o n v e n t i o n a l l e g a l
speaking. U n d e r s t a n d i n g , like obligation a n d friendship, n e v e r consists in
t h e a c t u a l i t y of a n a c q u i r e d knowledge. We do not produce u n d e r s t a n d i n g
b y t h e construction of rules. U n d e r s t a n d i n g a l w a y s lies "before m a n " , a s
t h e o p e n i n g of a p o s s i b l e w a y for h i m to be. The o p e n n e s s to t h e w o r l d
s u r r o u n d s m a n as t h a t in w h i c h a n d u n d e r w h i c h h e " a l w a y s a l r e a d y "
s t a n d s a n d u n d e r - s t a n d s , a n d w h i c h a l w a y s p r e c e d e s h i m in e v e r y
d i r e c t i o n he t u r n s . I n a s h a r e d world, u n d e r s t a n d i n g is a good t h i n g in

76 M. Heidegger, Erldiuterung zu HSlderlins Dichtung. Gesamtausgabe, vol.4

(Frankfurt am Main: Vittorio Klostermann, 1981), Hymn: Andenken, 156-194.
77 Ziarek says "the question of being or of event (Ereignis) would have to be
approached from the point of view of listening and 'friendship' with others
rather than through the c o n j u n c t i o n - the same (das Selbe) - - of being and
thinking", supra n.60, at 202-203.
78 Aristotle, Nichomachean Ethics, Book IX, Ch,8 in A New Aristotle Reader, ed.
J.L. Ackrill (Princeton, New Jersey: Princeton University Press, 1987), 455.
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itself. Each one of us wishes the good for his friend as for himself. This
withdrawal and self-identification is already latent in the language of
belonging. Law reveals itself in friendship because the saying of law
maintains the mortality of Being. The silent voice of law grants us
another level in language, a level instituted by the language games of
friendship. It is here that utopia can live as an anticipated experience.

The Oblivion of Law

Law cannot speak. And yet it speaks. The word has drained the law
of any law. The fall is man's altered relation to language. The word itself,
which "is", in truth, no being, degenerates into thing-words, mental
images, and concepts. Torn from the truth of its saying, it is made
available for repetition, ungrounded in the experience of seeing. The taw
is made into a system of rules obsessed with thing-rights. We drown in
the rush of discourse, a discourse that parades as "justification". The self-
legislating subject has become the God of philosophy and the object of his
own making. The universal ruler is an ignorant believer of the
overcoming of man's finitude and mortality. The calculation of
instrumental thought has become the measure of thought and wisdom.
Man is left with the word and he lives in the oblivion of law. He lives in a
lost presence of law without a distance. Man can no longer experience
language and the truth of the event. Presence has become a distant place
beyond the reach of man. To experience the nearing of the oblivion of law,
we must see the sanctity of written laws in the experience of the absence
of law.
The rift of history, the interruption in space and meaning, is the true
possibility of new meaning and law. In the work of art we can hear the
silent voice, in a saying where presence comes to be. To see the reality of
law is to experience presence as distance. The legal and the political
suffer from an amnesiac loss of meaning precisely because, as Walter
Benjamin once put it, presence has been replaced by representation. Our
institutions crumble, devoid of all presence. Only in the experience of this
distance can the oblivious law fulfil its presence. Only in the nearing of
the oblivion can we return to thinking. If language always already carries
the voice of ethics with it, the task for legal thinking is to think language
against itself, to find and listen to the unconcealed tracks and furrows
p e r m a n e n t l y in place in language. The r e t u r n of thinking to legal
philosophy is to capture and maintain a hermeneutic of nearness, a
 The Silent V o i c e o f Law: L e g a l P h i l o s o p h y as L e g a l T h i n k i n g 95

p r e s e n c e of m e t a p h y s i c s . The p l a y of difference l e a d s to d e s p a i r . L e g a l
p h i l o s o p h y ' s so-called r e t u r n to e t h i c s m u s t h a v e i t s r e a l b a s i s in a
m e t a p h y s i c s of presence. E t h i c s a n d t h e call of l a w is like a s p i r a l : t h e
s p i r a l is the m a t r i x for t h e origin t h a t is a t w o r k (and t h e r e f o r e h a p p e n s )
in its own place.