Abstract
The Anaximander fragment, in the readings of both Heidegger and Derrida, speaks of that which exceeds positive law. In this article, the author provides a detailed reading of Heidegger’s Der Spruch des Anaximander, showing how Heidegger relates this fragment to his thinking of Being, the latter having been ‘forgotten’ by metaphysics. Heidegger’s reading at the same time involves a contemplation of technology and of the ontological relation of beings to each other. Derrida’s reading of Heidegger’s Der Spruch highlights specifically those parts of Heidegger’s text where that which precedes Being’s gathering, Being’s disjoining or dissemination, is pointed to. This disjoining, Derrida contends, speaks of the gift of a day more ancient than memory itself and ties in closely with certain aspects of the thinking of Marx. Derrida’s focus on that which precedes Being is in turn related to his contemplation of the law or condition of possibility of technology and also of that which makes possible a relation to the other as other. This condition of possibility, or the gift of Being, which Heidegger’s text also speaks of, involves a ‘higher law’ which can serve as a ‘measure’ for the evaluation, interpretation and transformation of positive law.
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Notes
This text was published for the first time in 1950. The German version will be referred to only in cases where it requires our specific attention.
The word ‘measure’ is bound to be somewhat controversial here. The reference is of course not to a measure in the traditional sense; nonetheless the ‘notions’ of justice, the gift and hospitality in Derrida’s texts and which relate to the notion of a ‘higher law’ which is invoked here, clearly have a role which is not completely at odds with what is traditionally understood under ‘measure’; see e.g. Derrida and Roudinesco (2004, pp. 60–61). Strictly speaking what we are dealing with here is a ‘measure without measure’.
The three most detailed considerations of Heidegger’s Der Spruch in a legal context are by Wolf (1950, pp. 218–234), Zartaloudis (2002, pp. 213–216), and Oppermann (2003, pp. 45–69). Oppermann reads the fragment as entailing a view of justice as a rhythmic process where tisis (understood as care) complements justice/law as restitution. This is no doubt a commendable proposal in principle. Unfortunately little account is taken in this article of Heidegger’s questioning of the metaphysical tradition by enquiring into Being and the ontological difference between Being and beings—apparent inter alia in the equation of Being in Heidegger’s thinking with ‘what is’ in the article (at p. 59). A conception of justice is thus developed which would clearly be metaphysical on Heidegger’s terms. Zartaloudis, relying primarily on Agamben, refers to Heidegger’s analysis of the fragment as part of an attempt to proceed beyond Heidegger’s thinking of Being (as well as that of Derrida) which is said to still be caught within the logic of transcendental negativity. He consequently reads dike in the fragment as the ‘unifying multiplicity-unity of what tends apart’ (at p. 220). The claims of the author concerning the inadequacies in the thinking of Derrida and Heidegger regarding metaphysics can be addressed only indirectly in this article. Wolf’s exposition of the fragment, although not a commentary on Der Spruch, corresponds in most respects with that of Heidegger, more specifically with an earlier version based on lectures in 1941 at Freiburg University published in Heidegger (1981, pp. 94–123). See also Douzinas (2000, pp. 24–25), Hamacher (2005, pp. 887–888), Corrington (2002, pp. 781–802), Lewis (2006, pp. 293–309).
This is of course not to suggest that Heidegger views Plato and Aristotle as representatives of a fallen sort of thinking in comparison to the early Greek thinkers. He clearly admires them and regards their thinking (also) as a radicalisation and advancement in relation to the questions first raised by the early thinkers; see for example Heidegger (2008).
At the same time, it needs to be pointed out that Heidegger, in reading these texts, does not attempt to reconstruct what the early thinkers actually thought; see further infra.
In the earlier version (Heidegger 1981, p. 51), the first and last parts, which are left out in the later version, are still analysed as part of the fragment.
Wolf (1950, pp. 231–233) gives a detailed analysis of adikia in this respect. The reference in this reading to a community of all Dasein (see pp. 230–231) in attempting to translate Heidegger’s thinking of Being into Being-with-others-in-law, is noteworthy; see Minkkinen (1999, pp. 75–82) for an excellent analysis of Wolf’s fundamental ontology of law.
Heidegger (1981, p. 123) concludes that in every word of the fragment, Being is spoken of, also there where it specifically mentions beings. Diels and Kranz (1951, pp. 487–488) have declared in response to Heidegger’s translation that in the language of the sixth century BC the concepts dike, adikia, diken, didonai and tisis, already belonged to the specific sphere of the law and that to chreon can never mean ‘der Brauch’.
This should not be understood simply as a ‘psychological’ reading of Heidegger. The desire for presence that Derrida invokes here stands in a differential relation with the desire for death, a structure or rather ‘stricture’ which clearly exceeds and ‘precedes’ psychology and psychoanalysis, as well as ontology and phenomenology; see Derrida (1987b).
The notion of heterogeneity requires letting go of the assumption that a text is simply a consciously organised whole. A text is instead (also) to be read as being ruled by an illegible remainder in the unconscious; see also Derrida and Ferraris (2001, p. 9).
See further Derrida (2007, pp. 114–115) on the words Anwesen (being or becoming present, or presencing) and Anwesenheit (presence) in Heidegger (1977, pp. 115–154), and which we see in Heidegger’s statement regarding the attempt to think dike on ‘the basis of Being as presencing’ (aus dem Sein als Anwesen gedacht) (Heidegger 1984, p. 43; 2003, p. 329).
The dissension in being which must be overcome is also addressed by Heidegger in a number of other texts. Especially illuminating is Heidegger (2000, pp. 141–142) where he notes that in order to open itself to unconcealment, Being has to gather itself, in other words it has to ‘have rank and maintain it’. He continues as follows: ‘Gathering is never just driving together and piling up. It maintains in a belonging-together that which contends and strives in confrontation. It does not allow it to decay into mere dispersion and what is simply cast down’ (at p. 142).
Heidegger (2000, p. 139) explains this in simple terms as follows: ‘For the capricious, life is just life. For them, death is death and only that. But the Being of life is also death. Everything that comes to life thereby already begins to die as well, to go towards its death, and death is also life.’
Derrida (1989b, p. 10) reads Heidegger’s insistence that the essence of technology is nothing technological (Heidegger 1977, p. 20) as a (still) very traditional philosophical approach insofar as it seeks to purify essence from original contamination by technology. Derrida (1989a, pp. 140–141) for this reason contends that the essence of technology is (still) technological and cannot be thought without death.
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Acknowledgments
Funding for this research was provided by the Alexander von Humboldt Foundation and the South African National Research Foundation. A shortened version of this article was presented at the Critical Legal Conference, 5–7 September 2008, University of Glasgow. I would like to express my gratitude to the participants as well as to the reviewers for their thoughtful comments.
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de Ville, J. Rethinking the Notion of a ‘Higher Law’: Heidegger and Derrida on the Anaximander Fragment. Law Critique 20, 59–78 (2009). https://doi.org/10.1007/s10978-008-9039-5
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DOI: https://doi.org/10.1007/s10978-008-9039-5